KAROLYN PEREIRA v. MANUEL PEREIRA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6055-04T16055-04T1

KAROLYN PEREIRA,

Plaintiff-Respondent,

v.

MANUEL PEREIRA,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 11, 2006 - Decided February 6, 2006

Before Judges Parker and Miniman.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Ocean County, FV-15-2379-05.

Evan F. Nappen, attorney for appellant.

Anne M. Davis, attorney for respondent.

PER CURIAM

Defendant Manuel Pereira appeals from a domestic violence final restraining order entered on June 23, 2005 after a trial. We affirm.

Plaintiff and defendant were married on October 22, 1986. They have four children, ages twenty-three, nineteen, fifteen and five. On September 21, 2004, plaintiff filed a complaint for divorce. On February 18, 2005, a pendente lite order was entered under the FM docket number, granting plaintiff exclusive possession of the marital residence.

On May 23, 2005, plaintiff made a telephone application for a temporary restraining order (TRO). She reported that while she and her husband were engaged in a conversation in the driveway of the marital home, defendant became very agitated and loud. The parties' fifteen-year-old daughter, Ashley, was present at the time and defendant asked her to go in the house. When the girl refused, defendant picked up plaintiff, put her in his truck and said, "We are going down the driveway to talk." He told his daughter to go and stay with the baby. Defendant and Ashley got into a screaming match and he grabbed the girl by her throat and pushed her into the house. Ashley was treated in the hospital for injuries resulting from defendant's assault.

When plaintiff initially filed the domestic violence complaint with the police, she reported defendant's assault on Ashley, not thinking that his picking her up and putting her in the truck was an assault on her or an act of domestic violence. Consequently, in her initial complaint she described defendant's conduct against Ashley rather than against herself. Nevertheless, the TRO was granted.

At the initial hearing on the final restraining order (FRO) on June 8, 2005, plaintiff testified before Judge Joseph Foster about events that occurred on May 22, 2005, during which defendant smashed a hole in the wall of the laundry room and put his hands around plaintiff's throat. She also testified about the May 23 incident in which defendant picked her up and put her in the truck and then assaulted Ashley. At the June 8 hearing, plaintiff's counsel moved for a continuance to amend the complaint to include defendant's conduct toward plaintiff on May 23 and to add prior history. That application was granted.

Judge Foster was not available to continue the hearing and on June 23, 2005, Judge Vincent Grasso essentially started the hearing over again. When defendant's counsel was asked if he received the amended complaint, he responded that he had and was prepared to proceed. Defense counsel also waived any objection to starting the hearing over.

Plaintiff then testified with respect to prior incidents dating back to August 2004, as well as the more recent incidents. Officer Casey Long testified that he responded to the hospital where Ashley was being treated on May 23. The parties' other daughter, Maria, testified and offered photographic evidence of damage done inside the house by defendant. Defendant testified to his version of the events that occurred on May 23. At the conclusion of the trial, Judge Grasso found plaintiff and her witnesses credible and entered the final restraining order.

In this appeal, defendant argues:

POINT ONE

THE COURT ERRED IN FINDING THE PLAINTIFF CREDIBLE DESPITE TESTIMONY WHERE THE PLAINTIFF ADMITTED TO LYING UNDER OATH TO THE JUDGE FOR THE ISSUANCE OF THE UNDERLYING TRO

POINT TWO

THE COURT BELOW ERRED BY ACTING AS AN ADVOCATE FOR THE PLAINTIFF BY GRANTING AND PERMITTING AN AMENDMENT AND FURTHER ADJOURNMENT OF THE COMPLAINT

a. The Court below acted as an advocate for the Plaintiff instead of acting as an impartial trier of fact

b. The Court below erred by permitting amendment and further adjournment of the complaint which was, in the court's view, insufficient for the granting of an FRO under the controlling Domestic Violence law

We have carefully considered the record and defendant's arguments in light of the law, and we find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A). Nevertheless, we add the following.

With respect to defendant's assertion that plaintiff lied in obtaining the TRO, he is referring to plaintiff's references to his choking Ashley. Plaintiff testified credibly that she initially misunderstood when asked what the defendant had done and reported what defendant had done to the child.

Defendant's argument that the judge was acting as an "advocate for the plaintiff by granting and permitting an amendment and further adjournment of the complaint" is completely without merit. First, we have previously held that trial judges may not find domestic violence based upon allegations not stated in the complaint because "[i]t 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." J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998); See also H.E.S. v. J.C.S., 175 N.J. 309, 412 (2003). We are aware, however, that domestic violence complaints are often filed when the plaintiff is under emotional stress and are not always able to remember the details or the history leading to the complaint. Consequently, when it becomes apparent that, in the interests of justice, the complaint should be amended, the proper procedure is to allow an adjournment for plaintiff to amend the complaint and give defendant adequate notice.

Second, the adjournment of the June 8 hearing was consistent with the directives to the trial courts in the Domestic Violence Procedures Manual (July 2004):

When the allegations in the plaintiff's complaint are incomplete and/or it becomes evident at the final hearing that the plaintiff is seeking a restraining order based upon acts outside the complaint, the court, either on its own motion or on a party's motion, shall amend the complaint to include those acts, which motion shall be freely granted. Due process requires that the judge make an inquiry as to whether the defendant needs additional time to prepare in light of the amended complaint. A brief adjournment may be required if the judge determines that the defendant did not have adequate notice and needs time to prepare. If an adjournment is granted, a continuance order or an amended TRO shall be entered.

[Emphasis added.]

 
The adjournment, granted over defendant's objection, was proper under the circumstances. Judge Foster correctly indicated that he had to be certain what testimony was being offered on the domestic violence issues in the complaint before he could make a determination. At the June 28 hearing, defendant's counsel stated that he had received the amended complaint, was prepared to proceed and waived any objection to starting the hearing anew. After hearing the testimony, Judge Grasso found that plaintiff testified credibly with respect to defendant's conduct toward her and that plaintiff's explanation of her confusion about defendant's conduct toward their daughter was reasonable and credible.

Affirmed.

(continued)

(continued)

6

A-6055-04T1

RECORD IMPOUNDED

February 6, 2006