M.E.H v. M.E.H.

RECORD IMPOUNDED

N

OT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0555-10T4

M.E.H.,

Plaintiff-Appellant,

 

v.

 

M.E.H.,

 

Defendant-Respondent.

_______________________________________

May 25, 2012

 

Argued September 26, 2011 Decided

 

Before Judges A. A. Rodr guez and Sabatino.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-198-11.

 

Karin Duchin Haber argued the cause for appellant (Haber, Silver & Simpson, attorneys (Ms. Haber, of counsel; Amy L. Miller, on the brief).

 

Respondent has not filed a brief.

 

PER CURIAM

M.E.H. (Wife) appeals from the August 19, 2010 order dismissing her domestic violence complaint against M.E.H. (Husband), and dismissing a Temporary Restraining Order (TRO) previously entered because the Court determined that the "allegation of domestic violence has not been substantiated." We reverse.

Wife obtained a TRO against Husband from Judge Thomas H. Dilts. However, at a subsequent hearing, the order under appeal was entered by a different judge. Wife was represented by counsel and Husband acted pro se. At the hearing, it was undisputed that Wife and Husband were contemporaneously in the process of divorcing after several years of marriage. The parties had twin children, and Husband has a son from a previous marriage. In early 2009, Husband moved to Syracuse, New York with his son. Wife and the twins remained in the marital home. After Wife filed for divorce, Husband returned to the marital home with his son. At that point, the parties slept on different levels of the home. Around this time, the marital home went into foreclosure.

At the FRO hearing, Wife testified that on July 28, 2010, Husband repeatedly called her "sick, mentally unstable, and [her] parents' puppet" in front of the children. The next day, when she returned home from work, Husband told her the electric company had threatened to turn off the electricity. In front of the children and their friends, Husband told wife that she was to blame for the electric company's threat. Wife left the room and went to sleep in the guest bedroom that night. She locked the door. Somehow, Husband appeared in her room at 11:00 p.m. that night. Husband slapped her, either open-handed or back-handed, across the face. Wife was so stunned that she did not recall feeling any actual physical pain. Husband told her to call the police and exited the room. Wife locked the door and turned on a tape recorder. Husband entered the locked guest bedroom again. As heard on the tape recording, she asked Husband numerous times to leave her alone. According to Wife, he remained in the room. Wife did not call the police that night. Instead, she applied for a TRO the next day.

Wife testified to various instances of Husband's prior harassment. One morning, Husband sat on Wife's car, refusing to move because he believed she took his computer. Husband contacted wife through "probably 300 e-mails" after the TRO, including an e-mail asking wife for sex. Wife believed Husband's conduct was in a "process of escalation." After a wage garnishment was ordered against Husband, he told Wife that this was the last straw and that she would pay. He maintained that his statement solely addressed finances and should not be construed threateningly. Wife also recalled an incident a few years prior when Husband threw a clock radio that hit the wall.

Husband testified that on the night of the alleged assault, he walked down the hall past the guest room when Wife engaged him in conversation. He claimed he was in the hallway for the entire exchange. The tape recorded a different conversation, an argument between the parties, during which Wife accuses Husband of hitting her. He twice responds "I didn t hit you. I hit you." The transcript provided in Wife's appendix has periods at the end of these statements. However, when Husband read the transcript at the hearing, the court reporter noted the questioning inflection in his voice when he stated: "I hit you."

At the beginning of the recorded conversation, Husband apologizes. He later stated that he did not apologize for allegedly slapping Wife, but rather for engaging in an upsetting and emotional discussion.

Although the judge concluded Husband assaulted and harassed Wife, he denied and dismissed Wife's request for an FRO. The judge said:

The court makes the following findings of [fact]:

 

One. The parties are married.

 

Two. They're in the process of obtaining a divorce.

 

Three. Economic circumstances have become severe in the family. The defendant [Husband] lost his job, and [is burdened by] wage garnishments, the house is under foreclose, the electric bill is not paid. Things are pretty touchy in that family.

 

. . .

 

I have no trouble finding that, in fact, on July the 29th, 2010, [Husband] slapped his wife. I don't doubt that that happened at all. However, that's the first time in a marriage of over four or five years that that's ever happened. It never happened before and probably won't happen again. It occurred during what was a highly emotional matrimonial dispute between a Husband and the Wife where bad things were said, nasty things were said. Continual harassments: Please let me in the bedroom. Please let me in the bedroom. Please let me in the bedroom. Please let me in the bedroom. Over and over again. Is that harassment or is that marital discord?

 

I'm constrained to find, pursuant to many cases dealing with [the prevention of Domestic Violence [Act] was New Jersey's response to a problem. Indicate that the focus of the legislation was on regular serious abuse between spouses; that is, it is to understand a reference to battery, beatings, killings and findings likewise.

 

In enacting Domestic Violence law, the Legislature did not create a new class of offenses or interdict acts which otherwise were not addressed in the criminal law, but ensured that spouses who were subjected to criminal conduct by their mates had full access to the protection of the legal system, that is, through Domestic Violence Restraining Orders.

 

This Court is aware of the standard of proof. I find in this particular case that this has been an acrimonious divorce, and I know that during acrimonious divorces that people say things to each other that are hurtful and hurtful to the children and in sometimes in the presence of the children. Sometimes they just lose control and don't know how to behave themselves. However, I cannot find that those acts of Domestic Violence rise - - those acts rise to the issue of Domestic Violence.

 

As I said, there was an assault, and I find that that assault was in the course of a matrimonial dispute. The spouse indicates she wasn't hurt by that, just shocked by it. I'm shocked by it, too. People should not assault each other. This is an isolated incident, and I do not find sufficient grounds in which to enter a Final Restraining Order.

 

Wife appeals contending that the judge erred by failing to apply the two-step analysis under Silver v. Silver1, and failing to enter an FRO. We agree.

In examining those proofs and the trial judge's analysis of them, we are guided by a limited standard of review. As we recently noted in another domestic violence case, L.M.F. v.J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011), "[w]e are bound by the findings of the [trial] court that are supported by adequate, substantial, and credible evidence." See also Cesarev. Cesare, 154 N.J. 394, 411-12 (1998). "This deferential standard is even more appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" L.M.F., supra, 421 N.J.Super. at 533 (quoting In reReturn of Weapons toJ.W.D., 149 N.J. 108, 117 (1997)). We also bear in mind that "Family Part judges have 'special expertise in the field of domestic relations.'" Ibid. (quoting Cesare, supra, 154 N.J. at 412). Courts will not disturb "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." RovaFarms Resort, Inc. v.Investors Ins. Co. ofAm., 65 N.J. 474, 484 (1974).

Our review is also guided by the public policies underlying the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 (DVA), which is designed to "assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18.

N.J.S.A. 2C:25-19(a)(13) classifies harassment as one of the predicate offenses that may support a finding of domestic violence and the issuance of a final retraining order. Harassment, in turn, is defined in the Criminal code to include conduct in which a defendant, "with purpose to harass another, . . . [m]akes, 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." N.J.S.A. 2C:33-4(a). A single harassing communication may suffice under the Act. State v. Hoffman, 149 N.J. 564, 580 (1997). On the other hand, an "ordinary domestic contretemps" between quarreling spouses does not warrant relief under the Act. Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995).

Here, we have no quarrel with the judge's finding that the July 29, 2010 incident comprised a prohibited act of domestic violence. There is ample credible evidence in the record to sustain a finding that Husband engaged in the prohibited act of harassment. Indeed, the judge found that Husband assaulted Wife by slapping her. He also found that husband harassed his Wife by continual communications such as asking her repeatedly to let him in the bedroom. However, the proofs, the judge said that such slapping and harassment "probably won't happen again."

From our review of the evidence, the governing statute and controlling case law, we conclude that the record does not support the trial judge's separate finding that final restraints were not necessary for Wife's protection. See J.D. v.M.D.F., 207 N.J. 458, 488 (2011); Silverv. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006). Therefore, the order under review is reversed. In light of our reversal, we do not address Wife's request that we exercise our original jurisdiction and grant an FRO to protect her from immediate danger and further abuse.

Accordingly, the order denying an FRO is reversed and the matter is remanded to a different judge in the Family Part, Somerset County for the entry of a final FRO with appropriate terms and conditions, including any ancillary relief warranted pursuant to the DVA. The trial court may consider in its discretion additional proofs that may assist it in fashioning s

uch terms and conditions.

1 387 N.J. Super. 112, 126-27 (App. Div. 2006).