TRACEY VIADE CASTILLO v. JOSE LUIS MARTINEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5455-05T55455-05T5

TRACEY VIADE CASTILLO,

Plaintiff-Respondent,

v.

JOSE LUIS MARTINEZ,

Defendant-Appellant.

_________________________________________

 

Submitted May 2, 2007 - Decided July 30, 2007

Before Judges A. A. Rodr guez and Lyons.

On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County, FV-16-2183-06.

John L. Weichsel, attorney for appellant.

Respondent did not file a brief.

PER CURIAM

Defendant, Jose Luis Martinez, appeals from the May 12, 2006 final restraining order (FRO) granted to Tracey Viade Castillo, the mother of his two sons, ages fourteen and nineteen. We affirm.

These are the salient facts. At the hearing, both parties appeared pro se. They were the sole witnesses. According to Castillo, the parties separated in 1992. Since then, there have been two TROs entered against Martinez by the Bronx County Family Court in New York. Martinez has had visitation rights with his sons for several years. However, he rarely exercised this right. Castillo alleged that the fourteen-year old son did not want to see his father.

Castillo testified that on February 23, 2006, Martinez telephoned her at her work and "in a threatening tone stated to [her] that he wanted to see the children." On the same day, Martinez showed up at the children's school demanding to see them. On April 5, 2006, Martinez went to Castillo's previous residence in the Bronx. He was told that Castillo had moved. He then went to Castillo's sister's house and banged on her door. He did not find out Castillo's new address. Castillo, along with her current husband and children, had moved to Clifton. She had not notified Martinez of her new residence because of: his past abuse; his failure to exercise visitation; and the younger son's refusal to see his father. The older son, who is now emancipated has contact with his father. Moreover, Martinez had recently been served with an order of protection issued by the Bronx County Family Court.

On May 3, 2006 at 7:00 p.m., Martinez showed up at Castillo's home in Clifton demanding to see his sons. Castillo testified that she was afraid because in 1998, Martinez had assaulted, cut and threatened to kill her.

Martinez testified that on April 5, 2006, Castillo had left him a voice message at work stating that the eldest child had a problem at school. He went to Castillo's residence to talk with his eldest son, but was informed they had moved. Then he went to Castillo's sister's house in the Bronx to find out where Castillo and the children had moved. He went to Clifton, Castillo's new residence, on May 3, 2006 to see his eldest son. Martinez denied that he did not visit his sons in the past. He recounted numerous occasions in which he had contact with them. He alleged that he spoke with Castillo on the telephone whenever there were problems regarding the children. He denied that his visitation had been suspended by the Bronx Family Court.

The judge found that in the above situations, Martinez communicated with Castillo in a threatening manner. Given the history of abuse, the judge found that Martinez committed harassment.

On appeal, Martinez contends that because Castillo's testimony failed to show harassment, an FRO should not have been issued, and that the finding of domestic violence must be reversed because the judge failed to give Martinez an opportunity to cross-examine Castillo. We disagree.

Essentially, Martinez disagrees with the facts as found by the judge. However, "[a] trial court's findings of fact are binding on an appellate court if supported by adequate and credible evidence. Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "This is particularly so when . . . the significant evidence is largely testimonial rather than documentary, and the trial court has had the opportunity to observe the witnesses and determine their credibility." Id. at 607. We do not have the same opportunity to hear and see the witnesses testify and assess their credibility. Ibid. Accordingly, substantial deference must be given the trial judge's determination in that regard. State v. Dangerfield, 171 N.J. 446, 456-57 (2002); State v. Johnson, 42 N.J. 146, 161-62 (1964).

Although the judge did not formally ask each party to cross-examine, we conclude that the manner in which the judge conducted the hearing was fair and comported with due process. Unlike the situation in Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006), here, there is no indication that Martinez was unaware of his right to cross-examine. When hearing a domestic violence matter where both parties are pro se, the judge often has to focus the testimony and take over the questioning of the parties. Ibid. That is an acceptable way of searching for the truth. However, we are mindful that the parties' due process rights have to be respected. Ibid. Here, the judge permitted both parties to give their version of the facts. Martinez does not allege that he was precluded from bringing out relevant evidence. We have reviewed the record and conclude that there was sufficient evidence in the record to support the trial judge's findings.

Martinez has not satisfied his burden of showing that the judge's findings are "clearly a mistaken . . . and so plainly unwarranted that the interests of justice demand intervention and correction." State v. Wakefield, 190 N.J. 397, 495 (2007) (quoting Johnson, supra, 42 N.J. at 162); R. 2:11-3(e)(1)(A). Therefore, there is no basis for a reversal.

 
The FRO is affirmed.

(continued)

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5

A-5455-05T5

RECORD IMPOUNDED

July 30, 2007