A.L. v. R.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3491-11T1

A.L.,

Plaintiff-Respondent,

v.

R.L.,

Defendant-Appellant.

___________________________________

October 26, 2012

Argued October 16, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1236-12.

Daniel M. Serviss argued the cause for appellant (Greenbaum, Rowe, Smith & Davis, LLP, attorneys; Mr. Serviss and Dina M. Vanides, of counsel and on the brief; Cara DeCataldo, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant R.L. appeals from a February 24, 2012 final restraining order (FRO) entered against him in favor of his wife, plaintiff A.L., based on a finding of the predicate offense of harassment, N.J.S.A. 2C:33-4(b),1 under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. He asserts that "the trial court, in entering into evidence and relying upon a transcript from a former domestic violence proceeding conducted by another judge" (1) "failed to rely on admissible evidence," (2) failed "to make independent findings of fact," and (3) failed "to independently observe each party's demeanor to make a self-determined finding of each party's credibility." We disagree and affirm.

I.

The parties are married and are the parents of a daughter now five years old. In September 2011, defendant initiated divorce proceedings in the Circuit Court for Montgomery County, Maryland. In that same month, plaintiff obtained a temporary restraining order against defendant in the Family Part, Union vicinage, where plaintiff was residing at the time.

A trial under the Act was conducted on September 29, 2011, which resulted in the dismissal of plaintiff's complaint. Both parties were represented by counsel and both testified extensively. Plaintiff claimed that she was victimized by defendant four times while the parties were in Maryland, the last incident occurring one month earlier, on August 11, 2011. The Union judge concluded that two of the four alleged incidents of domestic violence occurred: plaintiff was assaulted by defendant and required eighteen stitches on February 13, 2011, and defendant harassed plaintiff using a belt in a threatening manner on August 11, 2011. The other two events were determined to be inconsequential.2

Notwithstanding these conclusions, the Union judge declined to enter an FRO and dismissed the action, stating the following:

I'm not going to be entering a Final Restraining Order in this case. As [plaintiff] testified, [defendant] is not going to be making a scene. And he'd never he would never make a scene in public. He never does that.

This, I think, falls into the concept that the courts have used, called 'marital contretemps.' In other words, the . . . marriage has gotten to the point where this type of incident is getting out of hand. It . . . can become violent as, to some extent, it did here.

However, it's fairly so I have to judge whether or not there's a likelihood a reasonable likelihood of future acts of domestic violence will occur. I don t find that the scales have tipped, in that case. They might be in equipoise. I could be wrong.

I could be wrong in saying I don't think a reasonable person would think, under the present circumstances where one lives in Maryland, and one lives in New Jersey, that there would not be a further act of domestic violence. But I do not think that [plaintiff] has proven by the greater weight of the evidence that there will be a further act of domestic violence.

The judge advised plaintiff directly that notwithstanding his declination of an FRO, it "should not inhibit you, prevent you, [or] discourage you from filing for a new [t]emporary [r]estraining [o]rder if some new act of harassment, assault, anything like that occurs." The judge specifically said, "[b]ecause the fact that I'm setting this matter aside should not, in . . . any way, cause you to feel like you shouldn't have access to the Courts to file a claim for any new acts." No appeal was taken from that dismissal.

Less than three months later, plaintiff filed anew for a restraining order under the Act, this time in the Middlesex vicinage. According to the complaint, defendant arrived, uninvited, to their daughter's pediatrician appointment in Woodbridge and caused a commotion. Plaintiff asserted that defendant began arguing about a procedure that he did not authorize and after waving papers "very close to [plaintiff's] face," he shoved [plaintiff] onto a wall."3 A temporary restraining order was entered in plaintiff's favor on December 23, 2011.

The trial was conducted on February 24, 2012. Both parties were again represented by counsel. The trial judge was alerted to the earlier Union proceedings, which arguably had ended favorably to defendant because an FRO never issued and the complaint was dismissed.4

At the beginning of the trial, plaintiff's attorney stated, "we would submit rather than rehashing and going over the prior incidents of domestic violence, we would submit the transcript [of the Union trial] and ask the Court to adopt the findings of the Court in that matter, wherein the Court found that there was a history of domestic violence." Defendant's counsel objected on the ground that counsel "can't have his cake and eat it too," because "[t]he judge found that in that case there was no immediate danger to the [plaintiff], regardless of what the credibility issues may have been and his belief or not belief of what my client was saying." Defendant further argued that "the transcript is barred on the principles of [T.M. v. J.C., 348 N.J. Super. 101 (App. Div.), certif. denied, 175 N.J. 78 (2002)]."

The Middlesex judge ruled on the evidentiary issue as follows: "I would consider the transcript in all regards, because of the issues of res judicata and collateral estoppel. And it may have pros and cons for each side. But the bottom line is it's a transcript from a trial where both parties testified and it is admissible." She thereafter conducted the trial with both plaintiff and defendant being subject to direct and cross-examination concerning the incident in the pediatrician's office. Notwithstanding the efforts of the trial judge to keep the parties focused on that incident, many other events in their troubled and volatile marriage were explored.5

Plaintiff described a quarrel in the pediatrician's office arising over the timing of their daughter's flu shot. Plaintiff insisted that the child be inoculated as soon as possible; defendant wanted to wait at least one more day, until another doctor confirmed that the child was not allergic to the constituent components of the vaccine. As the argument escalated, the local police were called by both parties to come to the pediatrician's office to serve as peace-keepers.

According to plaintiff, her husband

then proceed[ed] to go back inside the office of the doctors, then [came] out with the paper [waving] it around in my face saying I have records, I have records of you leaving me for a job.

And it showed where I was working. And I said, well I called so what. My girlfriend worked there. It's not a big deal. I call during the daytime like I did everybody else because I couldn't call when you were home because you were controlling. And he still continued to [wave] them in my face. Now he's getting closer to my personal space. And I snatched the papers because they were getting close to my face, and I said you need to stop [waving] the papers in my face. He then pushed me into the wall, continued to have a hand on me, and then snatched the papers out of my hand. And then I said, that's it.

. . . .

Meanwhile my daughter witnessed the whole incident.

Defendant's version of the incident was divergent:

I was gathering my documentation for the police officer that was going to be coming to investigate.

. . . .

When I came back to the lobby room that's when [plaintiff] took advantage of my presence not being there, and that's when [plaintiff] had sat down by my briefcase. And I asked her, hey what are you doing? And she ignored me. And I said, can you please give me back my paperwork? And she still continued to ignore me. So I had no choice but to grab[] the paperwork from her hand because she had no[] right to be going through my personal belongings.

So from that point I separated myself from her.

After both attorneys waived closing arguments, the Middlesex judge took a recess to review the evidence and read the transcript of the Union trial. She returned shortly to the courtroom and proceeded to explain her decision.

First, she declared, "I have to say that I did not find either party to be completely credible. However, the defendant's lack of credibility far outweighed the plaintiff's lack of credibility. In other words, I do believe the plaintiff more than I believe the defendant." The judge then described the demeanor of the parties that she had just observed, calling plaintiff initially "calm and straightforward," but becoming "very agitated and angry during cross[-]examination." The judge also found that plaintiff's admission of snatching the papers from defendant "as being a negative and something that someone might not admit, almost like throwing the first punch. But when someone admits a negative I do find credibility in that."

The judge described defendant as "extremely emotional during his testimony, crying at times especially when he was talking about [the parties'] daughter." The judge found defendant expressed "completely inconsistent positions" throughout his testimony and "his actions were also not consistent with his words."

The judge explained all of her credibility assessments before she discussed the Union trial. At one point, she noted the Union judge's assessment of defendant's credibility as "absolutely zero credibility."

As noted, the Middlesex judge found that she ultimately believed plaintiff's version of the events at the pediatrician's office more than defendant's version. She then determined "whether the shoving of the plaintiff into the hallway wall amounts to harassment." Looking to the purpose paragraph of N.J.S.A. 2C:33-4, the judge concluded that defendant intended "to assert his dominion and control over the plaintiff," which was "an act of control designed to intimidate and bully the other party." Accordingly, she found that "the predicate act of harassment took place."

The judge then examined whether "protection is needed going forward," citing Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006). Referring to her review of the Union judge's findings, the Middlesex judge mentioned the four incidents explored by that judge, suggesting erroneously that all four were found to be predicate acts under the Act. Finding, however, that in Woodbridge "[a] scene was made in public, in the doctor's office [] [a]nd the distance has not prevented the volatility from erupting into harassment," the Middlesex judge declared that "the second prong in the Silver test ha[s] now been overcome." Consequently, she issued "a final restraining order to prevent future domestic violence between the parties." This appeal followed.

II.

On appeal, defendant's main argument is that the integrity of the fact-finding process was compromised because the Middlesex judge relied "solely upon the prior testimony of the parties, and the credibility findings made by the prior judge" in deciding to issue the FRO. Claiming that this was violative of N.J.R.E. 804(b)(1), which requires unavailability of a witness, defendant contends that the judge abused her discretion and injected a fatal flaw into the proceedings. Secondarily, defendant contends that, at most, the events in the pediatrician's office were a species of domestic contretemps, not rising to the level of domestic violence and not requiring an FRO. Lastly, defendant argues that not only was there no competent evidence of prior acts of domestic violence, but the judge misapplied Silver. We find none of these arguments persuasive.

A Family Part judge's factual findings are entitled to considerable deference. D.W. v. R.W., ___ N.J. ___, ___ (2012) (slip op. at 16) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, we do not pay special deference to such judge's interpretation of the law. Ibid. (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010)). Additionally, the evidentiary rulings of a trial judge are

"'entitled to deference absent a showing of an abuse of discretion, i.e, there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469 (1997)). . . . "[T]rial court evidentiary determinations are subject to limited appellate scrutiny, as they are reviewed under the abuse of discretion standard." State v. Buda, 195 N.J. 278, 294 (2008) (citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008); Brenman v. Demello, 191 N.J. 18 (2007)).

[State v. Harris, 209 N.J. 431, 439 (2012).]

N.J.S.A. 2C:25-29(a)(1) directs consideration of evidence of prior history of domestic violence between the parties, Pazienza v. Camarata, 381 N.J. Super. 173, 183 (App. Div. 2005), "regardless of whether those acts have been the subject of a domestic violence adjudication." Cesare, supra, 154 N.J. at 405. Often, an important aspect of a court's findings and conclusions in a close case of harassment is the history of abuse in the relationship. See H.E.S. v. J.C.S., 175 N.J. 309, 327-28 (2003). In Cesare, the Court stated that "[b]ecause a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard." Id. at 405.

However, where the prior history involved acts alleged in a domestic violence complaint previously dismissed after a hearing because a plaintiff failed to carry her burden of proof, such a plaintiff is "precluded under principles of res judicata and collateral estoppel from relitigating [those] allegations which had been decided adversely to her in the earlier hearing." J.F. v. B.K., 308 N.J. Super. 387, 392 (App. Div. 1998). Cf. T.M., supra, 348 N.J. Super. at 106 (if a final restraining order was denied after trial because allegations did not rise to the level of domestic violence, the prior acts may be admissible and considered in a subsequent trial based on new allegations of domestic violence).

Here, the manner of illuminating the parties' prior relationship was through two means: first, plaintiff offered (and the court accepted) the Union transcript; second, both parties testified about several aspects of their volatile relationship, particularly referencing events revolving around the custody of their daughter.

We agree with defendant that the wholesale incorporation of the prior transcript, without his consent, transgressed N.J.R.E. 804(b)(1), at least regarding the testimony of plaintiff who was plainly not unavailable to testify. However, defendant's Union testimony was admissible regardless of his availability because it was offered as the statement of plaintiff's opponent under N.J.R.E. 803(b)(1).6 Additionally, N.J.R.E. 804(b)(1) only applies to the testimony of witnesses and cannot serve as a bulwark against the findings of fact and conclusions of law expressed by the Union trial judge. Those determinations were admissible pursuant to N.J.R.E. 201(a) and (b), and the transcript was an appropriate medium for the Middlesex judge to consult to learn of those statements of fact and law.

Our review of the record further fortifies the conclusion that the Middlesex trial judge did not abdicate her judicial responsibilities. She observed the parties first-hand and her explanation for finding a predicate act and the need for an FRO were primarily based upon what happened in plain sight in her courtroom. Her credibility findings were expressed as her own and any commentary about the Union judge's conclusions were mere surplusage. As a result, admission of plaintiff's testimony in the transcript from the Union trial was harmless.

We next consider whether the facts support the trial court's finding of domestic violence and its issuance of an FRO. In this analysis, we recognize that we may not disturb a trial court's factual findings unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

A trial court considering a domestic violence complaint must first, "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:25-19(a) has occurred." Silver, 387 N.J. Super. at 125. Here, the trial court found that the predicate act of harassment under N.J.S.A. 2C:33-4(b) had occurred. Under that statute, an act of harassment occurs when a person, "with purpose to harass another, . . . [s]ubjects another to striking, kicking, shoving, or other offensive touching." Ibid.

Once the court has determined that a defendant has committed a predicate act, it then must decide whether to issue a restraining order to protect the victim. Silver, supra, 387 N.J. Super. at 126. The commission of a predicate act does not automatically require that a restraining order be issued. Id. at 126-27. Rather, the court will only issue a restraining order if it is "necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.

We conclude that the totality of the circumstances supports the Family Part's finding of harassment and that issuance of a final restraining order was justified. Defendant's shoving of plaintiff at the pediatrician's office in close proximity to his daughter and health workers sustains the trial judge's conclusion that it was for the purpose of exercising unfair advantage and dominion over plaintiff. All of this was done after the tumultuous events of the preceding months. In this context even though the Union judge had dismissed the earlier complaint relying on the parties' separation as a safeguard defendant's conduct was harassing and an FRO was necessary at that time to restrain his conduct. We do not agree with defendant's characterization that the physicality that occurred was akin to ordinary domestic contretemps. See J.D. v. M.D.F., 207 N.J. 458, 475 (2011) (recognizing that "[d]rawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of ordinary domestic contretemps presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application") (citation omitted).

Affirmed.

1 "[A] person commits a petty disorderly persons offense if, with purpose to harass another, he . . . [s]ubjects another to striking, kicking, shoving, or other offensive touching[.]" N.J.S.A. 2C:33-4(b).

2 The Union judge called an incident occurring June 2, 2011, "so vague that [he] [did not] find anything of merit there." In like vein, the judge stated that he did not "see . . . as threatening" an incident that occurred on June 9, 2011.

3 The Middlesex complaint outlined plaintiff's contention that there was a prior history of domestic violence between the parties. The pleading briefly summarized the four incidents that were the subject of the Union proceedings three months earlier.

4 Notwithstanding the end result, the Union judge had characterized defendant as having "absolutely zero credibility. He . . . simply lied to the Court, openly."

5 Among the other issues argued about were defendant's conduct regarding the medical needs of the couple's daughter, defendant's military service, and the simmering custody dispute that would be decided in the courts of Maryland.

6 We note that during the Middlesex trial, the parties neither raised nor argued any specific rules of evidence in support of their respective positions.