DONNA R. BURNS v. JOHN G. BURNS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3967-06T13967-06T1

DONNA R. BURNS,

Plaintiff-Respondent,

v.

JOHN G. BURNS,

Defendant-Appellant.

________________________________

 

Submitted: November 28, 2007 - Decided:

Before Judges Axelrad, Sapp-Peterson and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Monmouth County, FV-13-1195-07-A.

Lomurro, Davison, Eastman & Munoz, attorneys for appellant (Bettina E. Munson, of counsel and on the brief; Amy L. Miller, on the brief).

Wilentz, Goldman & Spitzer, attorneys for respondent (Noel S. Tonneman, of counsel; Joseph J. Russell, Jr., on the brief).

PER CURIAM

Defendant John Burns appeals from a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, in favor of his former wife, Donna. The court found harassment, N.J.S.A. 2C:33-4a as the predicate offense. See N.J.S.A. 2C:25-19a(13). On appeal, defendant asserts due process violations, claiming the judge erred in requiring him to proceed with the domestic violence hearing without counsel, denying him the opportunity to cross-examine plaintiff, failing to inform him of his right to object, and failing to ensure that he understood the proceedings. Defendant also asserts a substantive challenge to the entry of the FRO, arguing there was no need, based on the evidence, to protect plaintiff from an immediate danger or to prevent further abuse. We reject defendant's arguments and affirm.

The parties separated on October 1, 2004. Plaintiff remained in the marital home with the parties' five children, who then ranged in age from one to twelve years old. Plaintiff initially filed a complaint for divorce in October 2005, which she withdrew and refiled in February 2006. There was significant acrimony between the parties regarding parenting and other issues involved in the matrimonial litigation. On January 19, 2007, plaintiff obtained a temporary restraining order (TRO) against defendant on grounds of harassment and terroristic threats relating to an incident occurring on January 18, 2007. With consent, the hearing on the FRO was adjourned to February 14, 2007, the same day the parties' divorce trial was scheduled to commence.

Two days prior to trial, defendant fired Peter Paras, the attorney who had represented him in his matrimonial action. Paras appeared in court on February 14, along with the parties and plaintiff's attorney. Paras informed the court that he was not counsel of record in the domestic violence case, and that defendant had terminated his services in the matrimonial action. Judge Ronald Reisner stated his intent to proceed first with the domestic violence hearing and then with the matrimonial trial, noting a disinclination to relieve counsel from the latter matter because the trial date had been set.

The domestic violence hearing proceeded, plaintiff with counsel, and defendant pro se. Defendant did not indicate to the court that he believed he was being represented by Paras or request an adjournment to retain counsel. Plaintiff testified to an incident occurring on the evening of January 18, 2007, when defendant came to the house to pick up their daughter for basketball practice. Defendant entered the garage while plaintiff was standing in the doorway that led to the kitchen. He pointed his finger at her and approached the bottom of the step, yelling at her about the high cost of his attorney's fees in the matrimonial litigation and that the house would have to be sold because he could not support the family living there. As the children ran out to the car, defendant "turned around, looked at [plaintiff] and he picked up and threw a stool across the garage in [plaintiff's] direction." Plaintiff explained that he then said, "you're next[,]" and she asked him, "is that a threat?" to which he responded that "it was an f-ing threat." Plaintiff testified that defendant then turned and left, returning about an hour later with the children. She related a verbal exchange he had with one of their daughters and that he then "gave [plaintiff] the finger right in [her] face" before leaving the house.

Plaintiff also testified about prior history of defendant calling her vulgar names in front of the children, presented evidence of obscene and inappropriate text messages defendant sent to her, and related incidents of defendant's controlling and game-playing behavior regarding the children and other marital matters. Plaintiff also testified that on one occasion defendant "told [her] that if he ever hit [her], it would just take one punch to the face and that [she'd] never get up again." Plaintiff explained that she never sought a restraining order before because, although she perceived defendant's behavior was primarily intended to intimidate and punish her for what was occurring in the divorce, it had not been violent. As a result of the stool-throwing incident, however, plaintiff explained that she was now in fear for her safety, stating:

Well, since he actually took the next step and physically did something, yeah, I just -- you know, he's been not not so nice to me verbally for a long time, but at that point when I saw him, everything started to seem to be escalating, that if he got to the point where he's throwing things now and then telling me -- because he's always said, oh, it's never a threat. Where he finally said to me, yeah, that's a threat, I started to feel like maybe one of these times he's going to actually do something.

The following colloquy ensued:

Q. [Plaintiff's attorney] did you take him seriously that he meant it, next time it would be you?

A. Yes.

. . . .

Q. [Plaintiff's attorney] Are you in fear of your safety if you did not have an order that restrains him from contact with you?

A. Yes.

Q. [Plaintiff's attorney] Okay.

A. I just know it's never going to stop. It is probably just going to get worse.

Q. [Plaintiff's attorney] what makes you think it's probably going to get worse?

A. Because you know, based on what happened this time. Usually if I say something about a threat he you know, pretends like you know, oh I didn't mean that, you know, that kind of thing. But now the fact that he's actually fessing up to it.

Q. [Plaintiff's attorney] Do you believe he's capable of physically harming you?

A. Yes, I do.

Plaintiff also explained that despite her requests, defendant did not attend anger management counseling because he did not believe he needed it.

Defendant was given the opportunity to cross examine plaintiff. He initiated his cross-examination by asking a compound testimonial question about a confrontation between the parties' children, ending with "[c]ould you explain to me why that wasn't discussed two minutes ago in full veracity?" Judge Reisner sustained plaintiff's counsel's objection to the question and explained to defendant that he could not ask six questions at a time or make a speech, but had to ask "one question at a time" and receive "one answer at a time." When asked if he then had a specific question he wished to ask of plaintiff, defendant responded in the negative. Defendant was also asked if he had any objection to plaintiff's text message exhibit being admitted into evidence, to which he also responded "no."

After defendant indicated he wished to testify and was sworn in, the judge explained that he would assist by asking defendant questions and giving him the opportunity to testify about the events of January 18, the other incidents, and the emails in evidence. Defendant referred to plaintiff as his "ex-wife" throughout his testimony. He admitted entering the garage and blaming plaintiff for his substantial fees in the divorce litigation but denied throwing a stool at her or making any comments to her at that time. Defendant explained that when he returned and entered the house to talk to his daughter about her behavior, he stuck his finger in plaintiff's face only after she stuck a tape recorder in his face and tried to push him down the stairs. Defendant acknowledged prior incidents where he gave plaintiff the finger, called her foul names, and sent her offensive text messages. He also defended his behavior involving various incidents with the children, including firing the therapist and returning to the parties' shore house after an extended absence.

Both during and at the conclusion of his testimony, Judge Reisner asked defendant the following questions to ensure that he was able to adequately present his version of the facts: (1) "Is there any other point in response to [plaintiff's] testimony that I haven't covered so far that you want to tell me about?"; (2) any other testimony that [plaintiff] gave that you want to respond to?"; (3) is there anything else that [plaintiff] testified to that you need to respond to?"; (4) "Mr. Burns, is there anything that you want to testify in response to the questions that you were asked by [plaintiff's attorney]?"; and (5) "any other item that you were -- or topic that you were questioned about by [plaintiff's attorney] that you want to respond to?"

At the conclusion of the trial, the judge set forth his findings of fact and conclusions of law, summarized the testimony of the parties, and made credibility assessments. Judge Reisner found aspects of defendant's testimony not to be credible. He also noted defendant's reference throughout trial to plaintiff as his "ex-wife." The judge further commented about defendant's demeanor, observing that when he testified, "his face was red and flushed, he smirked incessantly during the cross examination[,] [t]he corner of his mouth turned upwards [and] [h]e was smug." In contrast, the judge found plaintiff testified consistently with the allegations of her complaint, finding her testimony credible that on the evening in question defendant picked up and threw a stool in her direction and said, "you're next," and when asked if this was a threat, said, "yes, it's a f-ing threat."

The judge also considered the parties' prior history of domestic violence, citing the case law, finding defendant's persistent use of foul language in talking to plaintiff and the vulgar text messages, as well as his spiteful firing of the therapist, constituted harassment of plaintiff. As Judge Reisner noted, plaintiff had not previously sought a restraining order because although this and other conduct on defendant's part was controlling and intended to be seriously annoying, it was not coupled with violence or threats of violence. This time, however, defendant had crossed the line.

Judge Reisner performed the two-part analysis of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). He concluded that plaintiff had proven, by a preponderance of the credible evidence, that defendant had committed the predicate offense of harassment under N.J.S.A. 2C:33-4b, which provides that a person is guilty of the offense who "with purpose to harass another, . . . [s]ubjects another to striking, kicking, shoving, or other offense of touching, or threatens to do so[.]" The court found that "clearly [defendant] did both." He committed a violent act of throwing a stool at plaintiff, which made her concerned for her safety, and he also threatened future harm by telling her she was next and stating that it was a threat.

The court found, however, that although defendant's putting his finger in plaintiff's face was a "coarse way to handle the situation," it was not an act of harassment because there was "no threat of violence or act of violence in that discussion which occurred during that dispute." Similarly, the court was not convinced that defendant's conduct that evening rose to the level of a terroristic threat under N.J.S.A. 2C:12-3, i.e., a threat to commit a crime of violence with the purpose to terrorize another.

Then expressly referencing the second prong of Silver, Judge Reisner found the entry of an FRO was necessary to protect plaintiff from immediate danger and further acts of domestic violence. He reasoned that the implied threat when defendant threw the stool at plaintiff was that he would hit her with it the next time, and since defendant's behavior had escalated beyond verbal harassment and controlling behavior to behavior involving "violence and the threat of violence in the future against [plaintiff]," she was "entitled under Silver to an [FRO]." The court thus entered the February l4, 2007 FRO that is the subject of this appeal.

Defendant's reliance on Franklin v. Sloskey, 385 N.J. Super. 534 (App. Div. 2006) is misplaced. The present case has none of the due process or other procedural infirmities of Franklin. In that case, Franklin appeared at a final hearing without counsel as the purported victim, intending to proceed on his complaint for an FRO against his former girlfriend. However, he left having consented to the entry of an FRO against himself, without a domestic violence complaint ever having been filed against him, without admitting any act of domestic violence occurred, and without the court ever having made such factual finding. Moreover, the procedure resorted to by the trial court in that case did not afford Sloskey an opportunity to attempt to cross-examine her accuser, and it was clear from the record of the informal, disjointed, and unorganized hearing that she was not aware of her right to do so.

Not one of those facts was present here. Defendant was aware from the issuance of the TRO, almost a month before the hearing, that he was facing adverse consequences as a defendant in a domestic violence proceeding. Therefore, he had adequate opportunity to discuss the nature and consequences of the proceeding with his matrimonial attorney. Defendant also could have retained Paras to represent him in the domestic violence action, which apparently he did not. Even if he had, it is clear defendant fired Paras two days before the hearing, so defendant could not have assumed the attorney would have appeared on his behalf. Most critically, defendant made no statements to the court that he expected Paras to represent him in the domestic violence trial or that he was confused by the process. Nor at any time during the proceeding did defendant request an adjournment to consult or retain counsel. In Franklin, we found a fundamental violation of plaintiff's constitutional rights, noting the trial judge never informed plaintiff of the serious consequences associated with the entry of the FRO, never suggested he consult an attorney, and never indicated he had a right to request an adjournment of the trial to do so. 385 N.J. Super. at 540-41. Contrary to defendant's assertion, however, we did not impose this obligation on the trial judge with respect to every pro se defendant in a domestic violence case. Under the circumstances of this case, there was no affirmative obligation on Judge Reisner to ask defendant, who made a conscious decision to proceed pro se, whether he was prepared to go forward without the benefit of counsel or whether he wished to have an adjournment to retain counsel.

We are also satisfied defendant's other due process rights were adequately protected and that he was afforded a fair trial. Judge Reisner provided defendant with a full opportunity to cross-examine plaintiff and when he failed to ask a legitimate question, explained to him the proper form of cross-examination. Plaintiff was only permitted to step down from the witness stand after defendant advised he did not have any specific questions regarding the domestic violence matter. The judge conducted a thorough examination of defendant to ensure his version of the facts was adequately set out in the record and provided him with additional opportunities during his testimony and after cross-examination to supplement his responses and present any aspect of his case that had not been addressed. There is no indication in the record that defendant did not understand the procedure or did not have adequate opportunity to question plaintiff or present his case. The court's only omission, which we perceive to be harmless error under the circumstances of this case, was in not informing defendant he was entitled to make a closing argument.

On appeal, defendant does not challenge Judge Reisner's finding of the predicate offense of harassment. His substantive challenge to the FRO is that Judge Reisner erred because there was no need to protect plaintiff from an immediate danger or to prevent future abuse, as required for the issuance of a domestic violence restraining order under the second prong of Silver. 387 N.J. Super. at 126. Defendant argues that the stool throwing incident, his only act of physical violence, was simply an act of "domestic contretemps" resulting from an argument pertaining to the parties' pending acrimonious divorce. He claims his conduct did not cause plaintiff to be in fear, which the court would have realized if it had re-examined plaintiff's actions following the incident, i.e. allowing the children to go with defendant to the basketball game, accepting his call and waiting in the doorway upon his return to the marital home, and allowing him to speak with his daughter in his car for approximately ten minutes.

In Silver we set forth a two-prong test to be applied by the trial court in determining whether to issue an FRO. First, the court "must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." 387 N.J. Super. at 125. Second, the court must determine "whether a restraining order is necessary . . . to protect the victim from an immediate danger or to prevent future abuse." Id. at 127.

Judge Reisner observed and commented upon the parties' testimony and demeanor, considered the evidence, and applied the law to the facts of the case. He was satisfied that under the totality of the circumstances, defendant's escalated behavior of a combined physical act and threat created a need for court-ordered protection of plaintiff.

Our scope of review of a trial court's factfinding function is limited. The general rule is that findings by the trial court are binding when supported by adequate, substantial, and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We afford due deference to the credibility findings and "feel of the case" by the trial judge who has heard and observed the witnesses. Fritsche v. Westinghouse Electric Corp., 55 N.J. 322, 330 (1970); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988); Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. l961). This is particularly so with Family Part judges who possess special expertise in these types of matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

We discern no abuse of discretion or misapplication of the law by the Family Part judge in this case. Judge Reisner properly evaluated the parties' course of conduct, as required by the Act, the case law, and common sense. What defendant ignores is that the January l8, 2007 incident, though the only one involving a physical manifestation of his anger, was not "an isolated aberrant act." Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The incident has to be placed in the context of defendant's prior history and conduct towards plaintiff, which consisted of a pattern of extremely disrespectful behavior, vulgar language, and spiteful and controlling conduct, often in the presence of the children, with the clear intent to annoy and upset her in retaliation for the matrimonial litigation. Defendant also ignores plaintiff's testimony, credited by the trial judge, as to her fear for her safety following this incident and her belief that defendant's harassing behavior would continue and escalate. Considering the provisions of the PDVA and its broad legislative intent, as well as defendant's prior conduct towards plaintiff and his apparent continuing attitude towards her evidenced at the hearing, we are satisfied there was sufficient credible evidence to sustain the court's factual and legal conclusions that defendant committed an act of domestic violence against plaintiff that warranted the issuance of an FRO. See Rova Farms, supra, 65 N.J. at 484; Silver, supra, 387 N.J. Super. at 125-28.

Affirmed.

 

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A-3967-06T1

RECORD IMPOUNDED

December 20, 2007