D. W v. I. W

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3980-08T23980-08T2

D. W.,

Plaintiff-Respondent,

v.

I. W.,

Defendant-Appellant.

____________________________________

 

Argued February 23, 2010 - Decided

Before Judges Skillman and Fuentes.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth County,

Docket No. FV-13-1087-09A.

Stephen P. Haller argued the cause for appellant

(Einhorn, Harris, Ascher, Barbarito & Frost;

attorneys; Mr. Haller and Jennie L. Osborne, on

the brief).

Gary Newman argued the cause for respondent

(Newman, McDonough, Schofel & Giger, attorneys;

Mr. Newman and Laurence Desind, on the brief).

PER CURIAM

Defendant I.W. appeals from a final restraining order entered by the Family Part under the Prevention of Domestic Violence Act. N.J.S.A. 2C:25-17 to -35. The court found that on January 1, 2009, defendant uttered a terroristic threat against his wife, plaintiff D.W., by threatening to "see her dead" before she would be permitted to retain custody of the couple's three minor children. This incident prompted plaintiff to seek and obtain a temporary restraining order against defendant. The court also found that defendant harassed plaintiff in a series of communications over a three-day period from December 30, 2008 to January 1, 2009.

The court's findings were based on testimony from six witnesses, presented over the course of five trial days. In addition to her own testimony, plaintiff called her sister, brother, and a close friend as witnesses. Defendant testified on his own behalf and called plaintiff's sister-in-law as a witness in his defense. Ultimately, the case turned on the credibility of the testimonial evidence presented by both sides.

According to plaintiff, commencing in 2006, she was the victim of defendant's repeated verbal and physical assaults that were either prompted by or associated with defendant's alcohol abuse. The incident that formed the predicate offense in plaintiff's domestic violence complaint occurred on December 31, 2008 leading into New Year's Day on January 1, 2009. Plaintiff testified that on New Year's Eve she received a call from the cell phone of her son J.W. When she answered, defendant screamed at her, calling her "white trash" and, using expletives, told her that she would never get custody of the parties' children. It was also at this point that defendant threatened plaintiff by saying that he "would see her dead," before allowing her to obtain custody of the children. Plaintiff described his demeanor as angry and apparently inebriated. Plaintiff's sister and brother testified to receiving similar calls from defendant that night.

In his defense, defendant either denied making these calls or denied that he used foul language or made any threats. He also denied ever physically assaulting plaintiff or berating her during the time they were together. As he did before the trial court, defendant argues before us that plaintiff's case should be rejected because her testimony and those of the witnesses who testified on her behalf were not credible. Toward that end, defendant highlights the various alleged contradictions or inconsistencies in the witnesses' accounts of events.

In finding that defendant harassed and threatened plaintiff, the trial judge reviewed, in great detail, the testimony of each of the witnesses. The court accepted, as a matter of credibility, plaintiff's account of events. In going about this process, the trial judge made certain remarks concerning plaintiff's behavior during the trial that may be viewed as speculative, or not based on competent evidence. The following excerpt from the court's oral decision illustrates the point:

And I initially make the observation that [plaintiff] appears to be a woman whose self-esteem has been completely robbed from her. Throughout most of the proceedings her head has been down, her hair is long, so she keeps it to the side so she cannot even so much as see [defendant]. Very rarely did she look over at him. Never has she taken the seat that is closest to him.

And that observation is very telling. And it appears to me that throughout her 21 years of marriage she has suffered greatly and that probably she has been made to feel insubordinate and less than worthy. That she was just the caretaker, the one who would cook and clean and care for the children. It seems that she was probably never meant to, made to feel as an equal to [defendant].

Defendant argues that these comments reveal the trial judge's bias against him. We disagree. We recognize that these statements or observations, if viewed in isolation, appear to be deductions based on sociological paradigms or psychological analysis, none of which were part of the evidence presented to the court. When considered in the context of the judge's comprehensive factual findings and conclusions of law, however, these preliminary comments are no more than a preamble to the actual analysis to follow. That analysis tracked the competent evidence admitted at trial and applied the relevant legal principles to reach a clearly sustainable conclusion.

Our review of the trial court's factual findings is limited to determining whether they are supported by adequate and substantial credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Therefore, we are bound to uphold these findings and legal conclusions reached therefrom unless "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 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

We are satisfied that the record supports the court's findings and ultimate conclusion that defendant committed harassment against plaintiff on December 31, 2008 to January 1, 2009, the dates specified in the domestic violence complaint. The tumultuous history of the parties' marriage was properly admitted and considered by the trial judge to give context and meaning to the specific acts described in the complaint.

We reject defendant's argument that the court violated his due process rights by permitting plaintiff to testify concerning events that were not specifically disclosed in the domestic violence complaint. Including summation, this case was tried over a period of six days, commencing on February 19 and ending on March 18, 2009. The parties were both represented by competent counsel who aggressively advocated their clients' interest. The summary nature of domestic violence cases does not permit discovery. Despite this, plaintiff's complaint specifically described the allegations in support of the predicate offense, and defense counsel had sufficient time to thoroughly cross-examine each of the witnesses called by plaintiff. In short, there is no evidence that this trial court violated defendant's right to due process of law. H.E.S. v. J.C.S., 175 N.J. 309, 324-25 (2003).

We thus affirm substantially for the reasons expressed by the trial court in its March 18, 2009 decision.

 
Affirmed.

(continued)

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6

A-3980-08T2

RECORD IMPOUNDED

April 19, 2010