BEATRIZ CUTLER v. NORMAN CUTLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0930-05T30930-05T3

BEATRIZ CUTLER,

Plaintiff-Respondent,

v.

NORMAN CUTLER,

Defendant-Appellant. ____________________________________________

 

Argued October 24, 2006 - Decided November 20, 2006

Before Judges Weissbard and Graves.

On appeal from Superior Court of New

Jersey, Chancery Division, Family

Part, Passaic County, FV-16-000629-06.

Richard C. McDonnell argued the cause

for appellant (McDonnell & Whitaker,

attorneys; Mr. McDonnell on the brief).

Beatriz Cutler, appellant pro se.

PER CURIAM

Defendant, Norman Cutler, appeals from the entry of a final restraining order (FRO) under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-29, in favor of his wife, plaintiff, Beatriz Cutler. We conclude that defendant was likely prejudiced by the introduction into evidence of prior acts of sexual assault against plaintiff of which defendant was not fairly put on notice. As a result, we reverse the FRO and remand for a new hearing.

At the time of the events in question, plaintiff and defendant were living at 40 Palmer Street in Passaic, along with plaintiff's ten-year-old son. They had been married since December 2004. On September 2, 2005, plaintiff sought and obtained a temporary restraining order (TRO). The complaint alleged that on September 1, 2005, at approximately 5:30 p.m., "while both victim and offender engaged in a verbal dispute, offender grabbed victim's arms causing visible signs of injury." Both simple assault and harassment were checked as the applicable predicate offenses. N.J.S.A. 2C:25-19. Under a section of the complaint for prior history of domestic violence, reported or unreported, was written "prior domestics in past/no weapons involved."

At the final hearing on September 13, 2002, plaintiff, through a Spanish interpreter, and defendant were the only witnesses. Defendant was represented by counsel, plaintiff was not. Plaintiff testified that defendant came home from work "a little angry." He then called plaintiff "into the bedroom, he wanted to have sex." Plaintiff refused and defendant "grabbed [her] arm." Plaintiff also stated that defendant yelled at her child and "cut the telephone line in the house." Defendant said, according to plaintiff, "if you don't want to have anything to do with me, then you can leave the house, take all your things." Plaintiff claimed that defendant held her arm for "five minutes." She eventually was able to free her arm and she left with her son. Further questioning clarified that defendant did not actually cut the telephone line; rather, the "line was already damaged, so when he pulled at it, it broke." Defendant's action did not prevent plaintiff from attempting to make any calls.

In response to an inquiry by the judge as to "any prior incidents of domestic violence," plaintiff responded, "[l]iving with him." Asked to be more specific, she testified that "[i]t always happens that he mistreats me. He throws things from the bedroom." Pressed to be even more specific, plaintiff said that defendant had previously given her "two days to leave the house," threatening that if she did not do so, he would call "Immigration." Plaintiff claimed that she "called the police and filed a report" about this incident. Responding again to the judge's questions regarding other prior acts of domestic violence, plaintiff answered, "It was always the same as those, the same thing." At that point, the following took place:

The Court: Ms. Cutler, you have to answer the question I have asked you. Is that -- is what you are characterizing as domestic violence - the threat to call Immigration? Is that what the history consists of?

Answer: Yes.

The Court: And nothing else?

Answer: That besides all the other things he said, the way he has treated me.

The Court: Well, what has he said other than that he's going to call Immigration, and that he wants to teach your son to be a man?

Answer: That I'm no good as a woman. That I don't have sex the way he would like it. And -- and he's always wanted me to have sex the way that he sees it in his computer screen, kind of like playboy sex. And he's always said he would like to have sex with other women in the same room.

Defense Counsel: Your Honor.

Answer: And that if I don't want to share -

Defense Counsel: Your Honor, I --

Answer: -- that maybe I could watch him.

Defense Counsel: -- don't understand what this has to do with domestic violence.

The Court: Well. I'll make that determination. I don't think it's utterly irrelevant, but it borders on it.

The Court: Anything else other than his demands for, let's say, perhaps unusual sex?

Answer: Well, the times I would say no, that I didn't want to have sex, then right there on the bed he would hold -- pressure my arms. And if I refused that's when I would have problems.

The Court: All right. So he would hold you down on the bed and do what?

Answer: From my arms. I -- have to just stay there until he finished.

The Court: Until he finished what?

Plaintiff: To finish his sex. Ejaculation.

The Court: All right. Are you saying that you would refuse sex but he would force sex upon you anyway?

Answer: Yes, when he would pressure -- hold my arms, and then I would have to just let him.

The Court: Well, when did that occur?

Answer: It was since we got married, he would do it on many occasions.

The Court: All right. When was the last time that occurred?

Answer: May.

The Court: And when that occurred in May, were you -- what was your state of dress, of attire?

Interpreter: Could you repeat that, please.

The Court: How were you dressed at the -- at that moment?

Answer: My pajamas are always big and long.

The Court: All right. So you -- you had pajamas on?

Answer: Yes.

The Court: And he held you down on the bed?

Answer: Yes. He would pull down my pants.

The Court: All right. Well, when he pulled your pants down, he wasn't holding your arms, right?

Answer: He would let go of one, but he had the other one down.

The Court: Okay. Then he had sexual intercourse with you?

Answer: Yes.

The Court: And you're saying that was against your will when that occurred?

Answer: Yes. I didn't like the way he was treating me.

Defendant, in his testimony, denied the essentials of plaintiff's charge. He denied grabbing her arm, denied pulling out the phone line, and denied her allegations of sexual misconduct. Specifically, defendant testified:

Answer: After we first met, everything was fine sexually. The problems started after we were married.

Defense Counsel: And what are you referring to, problems?

Answer: Well, she has an acute physical condition, which I was unaware of during the time we were being intimate. I knew there was an issue, but not to the degree that it turned out to be after we were married.

Defense Counsel: Okay. Well, how was your sexual relationship after marriage?

Answer: There was none.

Defense Counsel: Now she claims that you would pressure her for sex, and put your arms on her, and pull down her pajama pants with one arm and have sex -- force -- force sex with her.

Answer: Never happened. Never did that.

After hearing a brief closing argument from defendant's attorney, the judge issued his ruling. Finding plaintiff's testimony to be credible, he continued:

I find that on September 2nd, or 1st, an act of domestic violence occurred consisting at that juncture only of harassment.

I find that the prior history of domestic violence, which I do believe occurred, which consisted of would in the vernacular, would be referred to as rape, sexual assault occurred on more than one occasion.

The plaintiff is clearly a reluctant witness in many regards, which would indeed be consistent with a long-term history of domestic violence. It would appear to the Court that the defendant found, upon meeting the plaintiff, he's some 22 years older than her, he was aware that she was not in the country legally. As he admitted, he learned shortly, very early on in their relationship that she had been a victim of sexual abuse and domestic violence from prior spouses. She was clearly a very vulnerable individual. And it would appear that the vulnerability appealed to him in some way.

I find her testimony regarding his repeated threats ["]well, if you don't want to have sex with me the way I want it, get out of the house["], et cetera, to have been a manipulation which occurred frequently, and occurred on September 1st, as part of the harassment which occurred on that date.

I find her testimony regarding his having repeatedly held her down in the fashion described to have been credible. The bruises -- the scratches and the bruises which she described regarding the September incident [are] credible. She described the pulling away from his firm grip on her as having been -- his long nails having been the cause of the scratches. She didn't try to embellish that, She didn't say that he went after her and - assaulted her and scratched (indiscernible). She described it again only in response to questioning because she was clearly a reluctant witness. She said there was bruising on her arms as a result of him holding on to her tightly for some period of time.

I don't find that there was anything that made me doubt her credibility in any significant way.

The judge found that "there was both the offensive touching, and indeed a simple assault. Harassment and simple assault on the 1st, colored by history of coerced sex."

On appeal, defendant raises the following issues:

POINT I

THE TRIAL COURT ERRED IN ITS CONCLUSION THAT AN ACT OF HARASSMENT OCCURRED ON THE DATE IN QUESTION AND FURTHER FAILED TO MAKE REQUIRED FINDINGS IN REGARD THERETO.

POINT II

THE TRIAL COURT ERRED IN ITS DETERMINATION THAT DEFENDANT-APPELLANT COMMITTED ACTS OF SEXUAL ASSAULT UPON PLAINTIFF-RESPONDENT AND VIOLATED THE DUE PROCESS RIGHTS OF DEFENDANT-APPELLANT IN SO FINDING.

POINT III

THE TRIAL COURT ERRED AND VIOLATED THE RIGHTS OF DEFENDANT-APPELLANT BY REPEATEDLY ASKING PLAINTIFF-RESPONDENT LEADING QUESTIONS IN DISREGARD OF RULES OF EVIDENCE, THEREBY VIOLATING THE DUE PROCESS PROCEDURAL RIGHTS OF DEFENDANT-APPELLANT.

POINT IV

THE TRIAL COURT FAILED TO ADHERE TO THE CODE OF JUDICIAL CONDUCT, SPECIFICALLY CANNONS 2 AND 3.

At the outset, we reject as utterly without merit defendant's claim that the judge violated the Canons of Judicial Conduct, and in particular the unwarranted suggestion that the judge favored plaintiff because "both the Judge and the Plaintiff appeared to Defendant to be minorities of the same background." That argument is without foundation and borders on the contemptuous. It amounts to little more than an absurd suggestion that judges of minority background should never hear cases where one party is of the same background.

That said, we acknowledge the uncomfortable position of a Family Part judge faced with the not uncommon circumstance of an unrepresented plaintiff in a domestic violence case. The judge is forced to take on the role of plaintiff's counsel, in addition to the inevitable and traditional necessity in a bench trial of acting as both arbiter of law and finder of fact. The difficulty is enhanced where, as here, the witness is testifying through an interpreter. We know of no easy escape from this dilemma. The judge always has the right, and often the duty, to question witnesses, whether the case is being heard by a jury or judge. N.J.R.E. 614. When it is necessary for the judge to question an unrepresented witness, the judge must be exceedingly careful to pose questions as neutral as possible in both content and tone. Neither the witness nor the opposing party should perceive any hint of partiality on the part of the judge. See Hitchman v. Nagy, 382 N.J. Super. 433, 451-52 (App. Div.), certif. denied, 186 N.J. 600 (2006).

With these observations in mind, we reject defendant's claim that the judge "went overboard" in questioning plaintiff "through prejudicial (as to Defendant) leading questions." It is true that the judge continuously pressed plaintiff for more responsive answers, but we discern no impropriety in that regard. In a similar vein, we also reject defendant's claim that the judge improperly interfered with defense counsel's cross-examination of plaintiff. We agree with the judge that most, if not all, of the lines of inquiry which were barred were irrelevant.

We also reject defendant's argument that the evidence was not sufficient to sustain the judge's finding that a predicate act of domestic violence, as charged, had occurred. We are troubled, however, by the judge's lack of clarity as to whether that act was harassment, N.J.S.A. 2C:33-4, simple assault, N.J.S.A. 2C:12-1a, or both. In any event, since there will be another trial for the reasons that follow, we simply emphasize the necessity of precise findings on the predicate offenses.

Defendant argues that he was denied due process by virtue of the judge eliciting testimony from plaintiff concerning a history of "coerced sex," without any prior warning that such evidence would be forthcoming. While the facts are dissimilar, our discussion in Pazienza v. Camarata, 381 N.J. Super. 173, 184-86 (App. Div. 2005), provides guidance. Here, defendant was clearly surprised by testimony that he repeatedly sexually assaulted plaintiff during their brief marriage. N.J.S.A. 2C:14-2(c)(1). Counsel voiced an objection on relevancy grounds, but was overruled. Plaintiff graphically described the conduct in question and there is little doubt that it played a significant role in the judge's final determination. While defendant denied the testimony and never sought an adjournment, we are persuaded that his fundamental due process right to adequate notice was violated. See J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998). While it is true that the surprise testimony at issue did not involve the predicate offenses, it overshadowed the harassment/assault testimony both in volume and degree and, as noted, clearly affected the judge's decision to issue an FRO.

Although defendant did not voice a proper objection to the sexual assault testimony, we view its admission as plain error, R. 2:10-2, warranting a new hearing. Since the trial judge has already made findings of fact based on credibility determinations, the hearing should be held before a different judge. See, e.g., Carmichael v. Bryan, 310 N.J. Super. 34, 49 (App. Div. 1998).

Reversed and remanded.

 

Plaintiff was an illegal immigrant at the time of her marriage to defendant. Subsequently, with defendant's assistance, she was in the process of applying for legal status.

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12

A-0930-05T3

RECORD IMPOUNDED

November 20, 2006