JEAN M. STRAHAN v. MICHAEL A. STRAHAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4432-04T44432-04T4

JEAN M. STRAHAN,

Plaintiff-Appellant,

v.

MICHAEL A. STRAHAN,

Defendant-Respondent.

_________________________________________________________

 

Argued January 25, 2006 - Decided February 10, 2006

Before Judges Wefing and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

FV-2698-05.

Ellen C. Marshall argued the cause for appellant.

Robert L. Penza argued the cause for respondent

(Walder, Hayden & Brogan, attorneys; Mr. Penza,

of counsel and on the brief; Asaad K. Siddiqi,

on the brief).

PER CURIAM

Plaintiff Jean Strahan obtained a temporary domestic violence restraining order on March 10, 2005. Following a trial on March 17, 2005, the court vacated the temporary restraining order and dismissed the domestic violence complaint. Plaintiff now claims that the trial court erred by not entering a final restraining order. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The parties were married on July 18, 1999. They have twin daughters, born on October 28, 2004. Plaintiff alleged in the domestic violence complaint that defendant had harassed her on March 10, 2005:

Defendant was yelling and cursing at victim and stated "You bitch, you fucking better get the money back in the account. I'm going to make you go to the bank." During argument Defendant had spit coming out of his mouth and his finger was in the victim[']s face forcing her to back up.

At approximately 8:15 p.m. on March 10, 2005, defendant was in his home office on the Internet transferring money from a joint savings account into a joint checking account to pay bills when he discovered that almost $1,700,000 had been removed from the joint savings account through a telephone transfer without his knowledge. Mr. Strahan testified that he went to plaintiff's bedroom, and the parties had the following conversation:

I looked at Jean and I said, Jean, why did you move $1.7 million? She said to me, well, you're moving money. I said, Jean, I'm not hiding anything from you. I'm not moving any money. And this is about as animated as I was in this argument, or what she considers an argument. Jean, I'm not hiding any money; I'm not moving any money. Yes, you are. I have a receipt. I've seen it. I said, Jean, we can go to the bank first thing in the morning and you can sit there and look at it and I'll explain to you what everything is.

Well, you moved money to Fooks (phonetic) Enterprises. I said Fooks Enterprises is a denim company that I invested in that you knew I invested in. I told you how much I invested in it. And that's the transaction. She goes, well, you moved, like $500,000 or whatever she said to it. I said, Jean, that's not the truth. I said if you look at the summary, it said that I moved [$100,000] but it came back, if you want to recall because the bank number and the account number didn't match up. So, I tried to send it on a Wednesday, and actually it wasn't until like a Friday or Monday. So, I had to call the bank and say hey, you messed up on the numbers. I left a lot of money to be transferred.

So, I tried to explain all that to her. And I said all the other transfers are from the checking account to the savings account to pay for the house. I'm not hiding anything from you.

According to Mr. Strahan, "it was a two minute conversation. There wasn't much to be said." Mr. Strahan testified that during the conversation, he was always at least six feet away from his wife. He denied that he put his finger in his wife's face or close to her face, and he denied that he forced her to back up. Defendant acknowledges that he "used one curse word, which was put the effing money back into the account."

Plaintiff testified that when defendant entered her bedroom, she was not alone. Her sister, Denise Mugli, and a domestic employee, Krista Reardon, who was organizing drawers in a closet, were both present. Plaintiff testified that defendant came in "really aggressive and angry, screaming where is my money?" In response to his inquiry, plaintiff stated that "the money got moved to an account in the same bank. Nobody's touching the money . . . ." Plaintiff explained that she moved the money into an account in her name because defendant had "cut up" her credit cards. Plaintiff also told defendant that she was "nervous" and did not know what was happening because defendant had previously asked her for a divorce. According to plaintiff, defendant came close to her face during the incident, but she concedes that he never touched her.

Plaintiff also testified that defendant was speaking loudly, pointed his finger in her face, and told her "you're fucking going to give me my money back. . . . I will make you put the money back." According to plaintiff, defendant held out his right hand while he was demanding the money be returned to him, and defendant told her that he was going to make her go to the bank in the morning and transfer the money back into the joint bank account that she had removed it from. Plaintiff testified that spit was coming out of defendant's mouth and landing on her face as he was demanding that his money be returned. But plaintiff did not allege that her husband deliberately spit at her:

Q. And your testimony was that, I think, you said spittle or spit hit your face at some point in time? Isn't that correct?

A. Yes.

Q. And you're not trying to tell the Court that Mr. Strahan spit on you. You're saying that he was emphasizing his words and spittle came out of his mouth?

A. Like I said earlier, he was screaming and yelling and moisture was coming out of his mouth and landing on my face.

Q. When you told him you wanted to call the police, he said go right ahead?

A. Yes.

Q. And was any other topic discussed in that room that night?

A. Not that I remember.

When she was asked what she thought her husband's purpose was, plaintiff responded:

I think he came in and if my sister wasn't there, I think he would have hit me. I think he was so angry about his money. That's all he cares about right now. And I'm just like a big financial figure to him right now because he wants a divorce and he's angry at me because it's going to cost him his money. And everything's about his money. It's all he talks about. I'm in his way of doing what he wants to do and [he] sees me as a burden.

He's angry. I think he thinks if he just makes me so miserable I would go away I think [that] is what he wants because he looks at me with hate and he never did [before].

A trial court's findings are binding on appeal when supported by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Therefore, an appellate court should not disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (alteration in original) (internal quotation marks omitted). Such deference is particularly appropriate when the evidence is mostly testimonial and involves questions of credibility. Ibid. "Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (alteration in original) (internal quotation marks omitted). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

In a letter filed pursuant to R. 2:5-1(b), the trial judge noted that "[a] distinct and necessary element for actions constituting harassment under [N.J.S.A.] 2C:33-4 is a purpose to harass," and he also stated:

After hearing testimony by the parties, I concluded that no incident of domestic violence had occurred. I specifically found an absence of any purpose to harass by the defendant and concluded that the act sought to be accomplished by the defendant was to have the money that was unilaterally and surreptiously removed by the wife be returned to the parties' joint account. Mrs. Strahan had (unknown to the defendant) moved [1.7] million dollars (half the joint account) to an account in her name alone.

. . . .

I evaluated the allegations within the previous history of the relationship. Mrs. Strahan testified of no incidents during the marriage that gave rise to domestic violence. During the six year duration, there is not a single physical incident (reported or unreported) between the parties.

Mrs. Strahan testified to alleged incidents occurring over seven years ago, prior to the marriage. In making my decision, while not saying any part of that premarital history was true, but accepting it as true for the best possible light of the plaintiff's complaint, I concluded that this present incident did not rise to the level of domestic violence.

I viewed the full relationship of the parties when I made the determination that an incident of domestic violence had not occurred and dismissed the complaint.

We begin our analysis by emphasizing that "[d]omestic violence is a term of art which defines a pattern of abusing and controlling behavior injurious to its victims." Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995); see also Corrente v. Corrente, 281 N.J. Super. 243, 246 (App. Div. 1995). The intent and focus of the Legislature in enacting the Prevention of Domestic Violence Act was to address serious abuse between individuals governed by the act. Corrente, supra, 281 N.J. Super. at 247. One sufficiently egregious action, however, may constitute domestic violence, even in the absence of a history of abuse between the parties. Cesare, supra, 154 N.J. at 402.

Plaintiff's domestic violence complaint alleged harassment, a predicate offense for a domestic violence restraining order. The harassment statute reads, in pertinent part, as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4 (emphasis added).]

To obtain a final restraining order, it was incumbent upon plaintiff to establish by a preponderance of the credible evidence that defendant had a purpose to harass on March 10, 2005. N.J.S.A. 2C:25-29(a); accord Peterson v. Peterson, 374 N.J. Super. 116, 123 (App. Div. 2005). The trial court concluded that defendant's conduct and communications with his wife on March 10, 2005, were not for the purpose to harass, and, therefore, his conduct did not constitute domestic violence. The record fully supports the judge's findings and conclusions. Even by plaintiff's own admission, the entire incident related solely to her unannounced withdrawal of funds from the parties' joint savings account. We are satisfied that there is substantial credible evidence to support the trial court's conclusion that defendant's only purpose was to have his wife return the money she had unilaterally removed from the joint account.

We recognize that a purpose to harass may sometimes be inferred from the totality of the circumstances. "Common sense and experience may inform that determination." State v. Hoffman, 149 N.J. 564, 577 (1997) (citations omitted). In this case, however, plaintiff's reaction to defendant's efforts to have her return the money she took from the joint account does not provide a valid basis for inferring that defendant's purpose was to harass his wife.

Plaintiff also contends that she was denied "full access to the protections of the legal system" because the trial court refused to permit three witnesses to testify at the trial on March 17, 2005. Plaintiff sought to introduce testimony from her sister, Denise Mugli, who witnessed the incident on the evening of March 10, 2005, and had knowledge "of Mrs. Strahan's telephones having been tapped." The second witness, Whitney Casey, was purported to have knowledge regarding an incident of abuse, which allegedly occurred while the parties were dating sometime in 1996. Plaintiff also wanted a third witness, Sara Schmidt, a private investigator, to testify regarding listening devices that were apparently installed on plaintiff's telephones.

A trial judge may exclude relevant testimony if "its probative value is substantially outweighed by the risk of . . . needless presentation of cumulative evidence." N.J.R.E. 403. A decision to exclude relevant evidence pursuant to N.J.R.E. 403 should not be disturbed on appeal "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).

Here, the trial court provided the following explanation for excluding the testimony of Ms. Mugli and Ms. Casey:

I'm going to accept as true [plaintiff's] testimony, not saying that it is true, but including the past history that she testified to. Those witnesses can do no more than corroborate [plaintiff's] testimony. . . . I'm accepting their testimony as corroborative of those events for the past and the present in [its] best light.

The trial court did not abuse its discretion by excluding the cumulative testimony that these witnesses would have provided.

The domestic violence complaint does not mention listening devices, and plaintiff did not seek to amend the complaint prior to trial. We have previously noted that "it is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint." L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999); see also H.E.S. v. J.C.S., 175 N.J. 309, 325 (2003) ("It constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint." (quoting J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998))).

The trial court rejected the proffered testimony regarding listening devices because the complaint "has not a single reference" to a listening device. In our view, the trial court properly excluded the proposed testimony because there were no allegations regarding listening devices in the domestic violence complaint. Based on our review of the record, we are satisfied that plaintiff was given a fair opportunity to present evidence concerning matters alleged within the complaint.

 
Affirmed.

(continued)

(continued)

12

A-4432-04T4

RECORD IMPOUNDED

February 10, 2006