BENJAMIN B. TAYLOR v. SANDRA AZARA-TAYLOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0165-07T10165-07T1

BENJAMIN B. TAYLOR,

Plaintiff-Appellant,

v.

SANDRA AZARA-TAYLOR,

Defendant-Respondent.

_______________________________

 

Submitted: April 7, 2008 - Decided:

Before Judges C.S. Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-0376-08.

Benjamin B. Taylor, appellant pro se.

Respondent did not file a brief.

PER CURIAM

Plaintiff Benjamin B. Taylor appeals from a July 27, 2007, order denying his application for a temporary restraining order (TRO) against defendant Sandra Azara-Taylor. On that date, Benjamin appeared in the Family Part seeking the entry of a TRO with respect to an incident that occurred on July 19, 2007. The complaint and proposed TRO prepared by the Family Part staff from information supplied by Benjamin alleges that Sandra had been ordered not to have any direct contact with Benjamin. It then alleged the following act of domestic violence on July 19, 2007, at 7:55 p.m.:

THE 7 YR OLD CHILD WAS GIVEN A CELL PHONE FOR EXPLICIT PURPOSE OF COMMUNICATIONS WITH FAMILY MEMBERS[.] ON 7/19/97 [BENJAMIN] CALLED THE CHILD[.] [SANDRA] INTERCEPTED THE CALL. [SANDRA] WAS [IN A] TIRADE[.] SHE HARASSED [BENJAMIN] SPEAKING TO HIM [IN] A HIGHLY ALARMING & CONTENTIOUS MANNER. SHE YELLED OBS[C]ENITIES AND IN BETWEEN THE OBS[C]ENITIES THERE WERE THREATS, SPECIFI-CALLY WARNING [BENJAMIN] THAT IF HE OPPOSED HER WISHES THAT SHE WOULD DO ANYTHING OR WHATEVER NECESSARY, INFERRING THAT SHE WAS GOING TO MAKE TROUBLE FOR [BENJAMIN] WITHOUT MERIT. [SANDRA] THREATEN[E]D TO HAVE [BEN-JAMIN] FALSELY ARRESTED. ON MAY 10 OF 2006 [SANDRA] SPECIFICALLY STATED TO [BENMAJIN] "DO WHAT . . . I SAY OR ELSE I'LL TAKE THE GIRLS FROM YOU[.]" PREVIOUSLY [SANDRA] EMBEL[L]ISHED STORIES RESULTING IN [BENJA-MIN] BEING ARRESTED. [SANDRA] IS ATTEMPTING TO CONTROL [BENJAMIN] AND MANIPULATE THE SYSTEM IN ORDER TO SEPARATE [BENJAMIN] FROM THE CHILDREN.

The complaint indicated that there were prior Family Part matters: one support matter under Docket No. FD-07-5474-06, one dissolution under Docket No. FM-07-1453-07, and two domestic violence matters under Docket Nos. FV-07-3441-06 and FV-07-2095-07. The complaint also alleged that a complaint had been made to the Maplewood Police Department on July 19, 2007.

When he appeared before the Family Part judge for a determination respecting the issuance of a TRO, the judge observed that an FRO had been entered against Benjamin in favor of Sandra. He acknowledged this was so and the judge asked what in addition to the complaint he wished to tell her. As he began to answer, she cut him off and refused to listen to anything other than the events of July 19, 2007, even though the complaint alleged a prior history of domestic violence. The judge then asked where Benjamin had been for eight days and he replied that he had come to court two days before but he wanted to bring two witnesses. The judge again cut him off.

The judge asked if he had any subsequent contact with Sandra and Benjamin replied that he tried not to do so but Sandra lived within four blocks of him. The judge cut him off again and stated she was not going back to the prior FROs and he should focus on July 19. He replied that he was trying to do so but it was connected to other things Sandra did over a period of time.

Benjamin then explained that since the entry of the FRO in favor of Sandra, she would speak with him when they exchanged the children for visitation, although he would not speak with her. Benjamin testified that Sandra would exchange the children and then file a report claiming that Benjamin engaged her in some type of conversation or altercation, none of which was true. Benjamin stated that he always brought a third party with him for the exchange of the children for his own protection. The judge asked if Sandra was rude or unpleasant and Benjamin agreed. Generally, Benjamin averred that Sandra gave "directives" or stated "what was going to happen." However, Benjamin testified that the call on July 19 was different. He stated that it made him fear for his safety because, on the first Saturday in April, Sandra's brother engaged him in a physical altercation at her instruction despite the FRO.

On questioning by the judge, he admitted that he complained of this incident to another Family Part judge at a case management conference but that judge did not take any action on his concern. Benjamin represented to the court that he had not made a formal application with respect to the brother's conduct. This judge stated, if Benjamin disagreed with the other judge's action, he should appeal it or go back to him on reconsideration. This judge then refused to consider this information because it had been presented to another judge who "ruled against" Benjamin.

When asked if there was anything else, Benjamin expressed that he was afraid Sandra was going to abscond with the children. The judge refused to consider this concern because it did not constitute domestic violence. Benjamin then complained that he was afraid that Sandra was going to do him bodily harm and the judge again cut him off and began the following colloquy:

THE COURT: Thank you Sir.

I am only here to listen about your allegation on the domestic violence. You filed a domestic violence at a quarter to [five]. For whatever reason you didn't start this process until later in the day. It's Friday. There are no other [j]udges here in the court. I have a court assembled. We are very patiently listening to your case.

What I'm not going to hear are procedural issues that are outside this domestic violence application. Do you understand?

BENJAMIN TAYLOR: I do understand.

THE COURT: And I've heard everything. I've given you many opportunities to talk to me about this incident. You wish to talk to me about everything else. And so now . . . you may be seated.

What . . . is the last sentence you want to say?

BENJAMIN TAYLOR: This . . . incident here, Your Honor, she's barred from having contact with me. She has no reason to answer my daughter's cell phone. My . . . daughter knows how to use a cell phone. She the first thing she said was she she went into and and started cursing and and

THE COURT: I've heard all of this and I have read it on the record.

I asked you if there was anything in addition. I've read it. I understand it. So apparently there's nothing else because now you're just repeating.

Kindly be seated.

BENJAMIN TAYLOR: Can may I

THE COURT: Be seated.

The judge denied the application for a TRO on the ground that she found it difficult to believe that an argument on the telephone "rises to the level of making you believe that your life is in danger[.]" She concluded:

I do not find that the allegation complained of rises to the level of domestic violence as this Court understands it under the law nor do I believe that reasonably you would feel that your life is . . . in danger. Moreover, these incidences occurred on July 19, 2007. There has been a restraining order in place under docket number FV-07-1664-07 and the date of that retraining order is January 18, 2007. It was entered by Judge Lombardi.

If, in fact, you are fearful for your life, sir, there has been . . . no contact permitted for at least seven months and it is only until July, after those seven months are past, that you are here in court, and moreover, eight days after the allegation it is not the normal conduct of someone who believes their life is in danger.

I deny your application.

Benjamin then asked if he could say something which the court denied, stating that "[t]his appearance has been concluded." The judge entered an order that day, drawing a line from the bottom left to the top right of pages one through three of the complaint and proposed TRO, including the allegations of the complaint itself on page one. She wrote "Denied" on each page under the line she drew. On the fourth page, she placed two crosses next to "TRO DENIED. Complaint dismissed by Family Part."

In this appeal, Benjamin contends that the trial court erred in denying his application as he was clearly entitled to a TRO under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33, based on a violation of N.J.S.A. 2C:33-4(a). The Act was adopted to combat domestic violence, which the Legislature declared to be "a serious crime against society." N.J.S.A. 2C:25-18. The crime is no less serious where the victim is a man. In order to remedy domestic violence, the Legislature provided for "exclusion of defendant from the marital premises, suspension of visitation, monetary relief to plaintiff and mandatory counseling." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). "[T]he Legislature did not create a new class of offenses or interdict acts which otherwise were not addressed by the criminal law, but ensured that spouses who were subjected to criminal conduct by their mates had full access to the protections of the legal system." Ibid. Thus, the law incorporates fourteen criminal statutes, including harassment contrary to N.J.S.A. 2C:33-4. N.J.S.A. 2C:25-19.

Although the judge seemed to consider the application as relying on the making of terroristic threats in violation of N.J.S.A. 2C:12-3 when she concluded that the telephone call could not reasonably have made him fear for his life, she should also have considered the elements of harassment:

Except as provided in subsection e., 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;

. . . .

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.]

We have said that "integral to a finding of harassment under either section [(a) or (c)] is the establishment of the purpose to harass, which is set forth in the statute itself." Corrente, supra, 281 N.J. Super. at 249. The distinction between (a) and (c) is that (c) requires a course of alarming conduct whereas section (a) may be proven with a single communication.

The Act provides that "[a] victim may file a complaint alleging the commission of an act of domestic violence with the Family Part of the Chancery Division of the Superior Court in conformity with the Rules of Court." N.J.S.A. 2C:25-28(a). It also provides that "[a] plaintiff may seek emergency, ex parte relief in the nature of a temporary restraining order." N.J.S.A. 2C:25-28(f). Further, "[i]f it appears that the plaintiff is in danger of domestic violence, the judge shall, upon consideration of the plaintiff's domestic violence complaint, order emergency ex parte relief, in the nature of a temporary restraining order." N.J.S.A. 2C:25-28(g) (emphasis added). "An order for emergency, ex parte relief shall be granted upon good cause shown and shall remain in effect until a judge of the Family Part issues a further order." N.J.S.A. 2C:25-28(i) (emphasis added).

In reviewing a Family Part judge's conclusion that good cause did not exist for issuance of a TRO, we ordinarily would "not disturb the 'factual findings and legal conclusions of the trial judge unless [we are] 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.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). However, that limited scope of review must not apply where a party has not had a full and fair opportunity to present his or her case.

The concept of a full and fair opportunity to be heard has been required in a variety of contexts. See, e.g., Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 522 (2006) (collateral estoppel may arise only when the party to be estopped has had a full and fair opportunity to be heard); State v. Novembrino, 105 N.J. 95, 138 (1987) (federal habeas corpus relief is available where a state prisoner has not had a full and fair opportunity to litigate fourth amendment claims) (citation omitted); In re Vincenti, 92 N.J. 591, 600 (1993) (respondent given full and fair opportunity to respond to charges); State v. Johnson, 28 N.J. 133, 138 (1958) ("The virtue of the adversary approach to a trial lies precisely in the opportunity for a full and fair presentation" of the evidence.); Bacon v. N.J. State Dep't of Educ., 398 N.J. Super. 600, 618-19 (App. Div. 2008) ("In its assessment of appellants' needs and the Act's remedial impact thereon, the Department shall afford appellants a full and fair opportunity to be heard."); Thompson v. City of Atl. City, 386 N.J. Super. 359, 379 (App. Div. 2006) (directing the trial judge to "enter an appropriate order, after allowing the parties a full and fair opportunity to be heard, regarding the pendente lite disposition of the settlement proceeds."), aff'd as modified, 190 N.J. 359 (2007); N.J. Higher Educ. Assistance Auth. v. Pennell, 377 N.J. Super. 13, 24 (App. Div. 2005) ("'Res judicata may not be applied against a party that did not have a full and fair opportunity to litigate the claim in a prior proceeding.'") (quoting In re Whelton, 312 B.R. 508, 516 (D. Vt. 2004), aff'd, 432 F.3d 150 (2d Cir. 2005)). It must apply to an application for a TRO in a domestic violence matter or the very evil the Legislature sought to remedy, domestic violence, will not be prevented. See N.J.S.A. 2C:25-18 ("The Legislature further finds and declares that even though many of the existing criminal statutes are applicable to acts of domestic violence, previous societal attitudes concerning domestic violence have affected the response of our law enforcement and judicial systems, resulting in these acts receiving different treatment from similar crimes when they occur in a domestic context.")

It is readily apparent that Benjamin attempted to prove harassment, yet the judge gave his application short shrift, refusing to hear the past history of violence against him, complaining of the lateness of the hour, interrupting him repeatedly and cutting off any real opportunity for him to describe the details of the July 19, 2007, harassment. Because the record below was not fully explicated, we reverse and remand for consideration of the application for a temporary restraining order.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

Because there was a prior final restraining order in which defendant Sandra was the plaintiff and Benjamin the defendant, we refer to the parties by their first names to avoid confusion.

This allegation was based on a final restraining order (FRO) entered on April 3, 2007, under Docket No. FV-07-1664-07, which determined that Benjamin committed an act of domestic violence and restrained him from having any contact with Sandra. It also provided that Sandra "is not to initiate any direct contact with [Benjamin]."

The record on appeal does not include the FROs entered in these matters, if any. As discussed in note 2, supra, there was a third domestic violence matter under Docket No. FV-07-1664-07. This FRO is included in the appendix.

Benjamin included a copy of the Maplewood Police Department report in his appendix on appeal, although it was not marked into evidence at the hearing. That report states:

Mr. Taylor reports that Sandra Taylor is restricted from having direct contact with him by restraining order FV-07-1664-07. He states that his wife used his daughter[']s cell-phone to verbally abuse him and also threaten him by having Mr. Taylor arrested for no cause. She also threatened him by stating that she is going to take their (2) kids out of state without his permission. Mr. Taylor and Mrs. Taylor both have joint legal custody of their (2) kids.

Benjamin also included other documents that do not appear to have been part of the record before the Family Part judge. These documents are Appendix Exhibit E, History of Domestic Violence Acts prepared by Benjamin after July 27, 2007; Exhibit I, Maplewood/Irvington Incident Reports, Prior Acts; Exhibit J, Risk Factors of Parental Abduction; Exhibit L, Articles on Domestic Violence Against Men; and Exhibit M, Certifications of Barbara Taylor and Marvin Conway. Because these documents were not presented to the Family Part judge, we do not consider them on appeal.

We note, however, that the judge completed the section entitled "NOTICE TO APPEAR TO PLAINTIFF AND DEFENDANT," which provided that they were to appear on August 9, 2007, at 8:30 a.m. for a final hearing. The record does not disclose what, if anything, occurred that day. However, we construe the order as dismissing the complaint because the record reflects that to be the intent of the judge in ruling on the application.

In this respect, Benjamin included in his appendix a statement of the past history of domestic violence against him, including prior occasions where complaints were made to local police departments, photographs of injuries inflicted upon him, and other information. He did not have an opportunity to present any of this information to the judge.

(continued)

(continued)

13

A-0165-07T1

RECORD IMPOUNDED

June 23, 2008