L.G. v. M.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

L.G.,

Plaintiff-Respondent,

v.

M.B.,

Defendant-Appellant.

_______________________________________

November 6, 2014

Argued September 23, 2014 Decided

Before Judges Hayden and Sumners.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-002240-13.

Peter Van Aulen argued the cause for appellant.

Janell N. Weinstein argued the cause for respondent (Sunshine, Atkins, Minassian, Tafuri, D'Amato, Beane & Buckner P.A., attorneys; Ms. Weinstein, on the brief).

PER CURIAM

Defendant M.B. (Blaine)1 appeals from the June 26, 2013 final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A.2C:25-17 to -35, and the August 13, 2013 order denying his motion for reconsideration. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I

The record discloses the following facts and procedural history. Plaintiff L.G. (Gandy) and Blaine were divorced on March 22, 2012, and have lived at different residences since April 17, 2012. Two children were born during their marriage.

On May 24, 2013, Gandy obtained a temporary restraining order against Blaine. She then filed an amended domestic violence complaint on May 29, 2013, alleging Blaine committed acts of harassment and criminal mischief. A one-day trial was conducted on June 15, 2013.

Gandy testified that on May 24, 2013, Blaine arrived at her home to pick up their children for his parenting time. Blaine parked his car in the driveway with the front of his vehicle facing the front of her vehicle. Gandy saw Blaine walk from behind her car, around the bushes, and onto her walkway to approach her front door. After Blaine directed the children to get inside his car, she and Blaine began arguing about his request that she amend her income tax return to allow him to claim one of the children as a dependent deduction. Gandy refused, ending the argument by slamming the door shut. Gandy testified that the argument got her so upset that she canceled her plans to go out that evening and stayed home. In contrast, despite conceding that Gandy slammed the door, Blaine testified that they had a simple disagreement.

Gandy testified that on the following day, a friend visited her home around 1:00 p.m. or 1:30 p.m. Gandy said she watched her friend exit her vehicle when she arrived and witnessed her walk to her vehicle when she left. Later around 3:00 p.m., after her friend left, Gandy went to her car to go to the store. As she approached her car, she checked the rear of the car because she remembered Blaine emerged from behind her car the previous day and she had numerous past incidents of nails in her tires. Gandy discovered two spikes propped up against her passenger side rear tire and immediately called the police because she felt that her life had been threatened.

Police Officer Timothy Keenan arrived at Gandy s home to investigate the matter. He testified that when he arrived Gandy was visibly upset and crying. He further explained that he asked Gandy who she thought placed the spikes against her tire, and she told him that she believed Blaine was the culprit because she saw Blaine walk from behind her car the day before when he picked up the children.

Gandy also testified that on five separate occasions before the May 24, 2013 incident, her car had deflated or flat tires due to nails: three times in April 2012, once on August 9, 2012 and once on September 7, 2012. Additionally, she testified regarding prior uncharged incidents committed by Blaine, including changing the keypad pass codes to the front door and the garage of their former home, barricading the entrance of the home, removing her car windshield wipers, bleaching her clothes, and damaging furniture.

At the trial's conclusion, the Family Part judge found largely on circumstantial evidence that Blaine violated the PDVA through harassment and criminal mischief by placing the spikes underneath Gandy's car tire. The judge determined that Gandy was credible and had no motive to obtain a restraining order against Blaine other than to protect herself. The judge found Blaine s testimony that the parties had a simple disagreement over the income taxes to be lacking in credibility. She also considered the history between the parties involving the prior incidents of uncharged acts by Blaine against Gandy. Consequently, the judge granted Gandy's FRO against Blaine to protect her from further abuse.

In response, Blaine filed a motion for reconsideration contending that the judge should vacate the FRO and dismiss the domestic violence complaint, or in the alternative vacate the FRO and order a new trial. Blaine argued that the judge based her decision on the fact that he was in the construction industry, and the misbelief that the spikes propped against Gandy's car tire were construction spikes. In support of his argument, Blaine submitted an expert report that contended the spikes were baker's spikes. He also contended that there was insufficient evidence that he placed the spikes behind the car tire. Unconvinced, the judge denied his motion, finding the type of spikes were irrelevant, and affirming her initial decision for the same reasons.

This appeal followed.

II

The standard of review that governs our consideration of this appeal is well-established. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474 (1974)). Deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108 (1997)). "[T]he trial court . . . has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Serv. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Serv. v. M.M., 189 N.J. 261, 293 (2007)). "Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] 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.'" Id. (quoting Rova Farms, supra, 65 N.J. at 484). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J.at 413. Yet, where our review addresses questions of law, a trial judge's findings "are not entitled to that same extent of deference if they are based upon a misunderstanding of the applicable legal principles." N.J.Div. ofYouth & Family Serv. v. Z.P.R., 351 N.J. Super. 427,434 (2002) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The PDVA was enacted in furtherance of New Jersey's "strong public policy against domestic violence." Cesare, supra, 154 N.J. at 400. Under the PDVA, an FRO may only be granted "after a finding or an admission is made that an act of domestic violence was committed." N.J.S.A. 2C:25-29(a); see also R. 5:7A(d). Allegations must be proven by a preponderance of evidence. N.J.S.A. 2C:25-29(a).

Domestic violence occurs when an adult or emancipated minor commits one or more of the enumerated acts upon a person covered by the act, such as, harassment, N.J.S.A. 2C:33-4, and criminal mischief, N.J.S.A. 2C:17-3. N.J.S.A. 2C:25-19(a)(10) and (13). Harassment is defined as a petty disorderly persons offense if a person,with purposeto harassanother, makes,or causesto bemade, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other mannerlikely tocause annoyance or alarm. N.J.S.A. 2C:33-4. Criminal mischief occurs when a person "[p]urposely or knowingly damages tangible property of another." N.J.S.A. 2C:17-3.

To determine whether an act of domestic violence has been committed a judge may consider prior history of abuse between the parties. N.J.S.A. 2C:25-29(a)(1); Cesare, supra, at 402. The Court places emphasis on the history between the parties and how it can have a profound effect on the context of a domestic violence case. Id. at 405. Even when the act of domestic violence has not been adjudicated a judge can consider it to make determinations. Id. Thus, "trial courts must weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard." Id.

Blaine contends that he did not place the spikes under Gandy's car tire, and there was no evidence that he was in possession of spikes or placed spikes under her car tire. We are satisfied that there is sufficient credible evidence in the record to support the judge's finding that Blaine committed an act of domestic violence by acts of harassment and criminal mischief towards his ex-wife.

Here, the judge's finding of harassment and criminal mischief is based upon a preponderance of the circumstantial evidence that Blaine was the culprit who placed the spikes under Gandy's car tire. There is no dispute that "[a] fact may be proved by both direct evidence and circumstantial evidence." Halvorsen v. Villamil, 429 N.J. Super. 568, 575 (App. Div. 2013) (citing State v. Phelps, 96 N.J. 500, 511 (1984)). "'Both direct and circumstantial evidence are equally acceptable forms of proof.'" Id. (quoting Newmark-Shortino v. Buna, 427 N.J. Super. 285, 312 (App. Div. 2012), certif. denied, 213 N.J. 45 (2013)). Gandy testified that she saw Blaine emerge from behind her car - which was not a direct route to her front door - when he came to pick up their children. After the children were sent to the car, Gandy explained that she had a hostile disagreement with Blaine over amending her income tax return. On the other hand, Blaine downplayed the incident, claiming they had a simple disagreement without any acrimony while the children were in the car. However, both parties stated that Gandy slammed the door in Blaine's face. The judge felt Gandy's emotional demeanor on the witness stand regarding the confrontation over the income taxes was convincing, in contrast to Blaine's matter-of-fact recollection of the incident. Also, Gandy testified that there were prior occasions over the preceding nine months when she had flat tires caused by nails or deflation. In sum, the judge found Gandy's testimony credible and discredited Blaine's testimony. We defer to that assessment.

Next, we address Blaine's contention that Keenan's testimony regarding Gandy's statement to him accusing Blaine of placing the spikes behind her car tire constituted inadmissible hearsay, which was relied upon by the judge. We are unpersuaded.

New Jersey Rules of Evidence 801(c) provides that hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." According to N.J.R.E. 802 hearsay is inadmissible "except as provided by these rules or by other law." A party must make a timely objection to prohibit hearsay testimony. State v. Johnson, 216 N.J. Super 588, 610 (App. Div. 1987). When no objection is made at trial, we will disregard an error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

Here, Blaine's trial counsel2 objected before Keenan responded to a direct examination question asking him what Gandy said to him when he arrived at her home to investigate her complaint. The judge replied that Keenan could respond, and if counsel had an objection after hearing Keenan's testimony, he could renew his objection and she would reconsider. The judge also stated that Blaine could recall Gandy for re-cross-examination. Keenan then proceeded to testify that Gandy told him she suspected Blaine placed the spikes under her tire because of his numerous misdeeds towards her. Upon the judge's inquiry, Keenan stated he put Gandy's statement in his police report. However, Blaine's trial counsel did not renew his objection, or recall Gandy as invited by the judge.

We conclude a timely objection was not made. Blaine did not object after Keenan stated what Gandy told him. Thus, it can only be concluded that he perceived no prejudice regarding Keenan's testimony. Regardless of whether a timely objection was made, our review of the record leads us to conclude that the trial judge did not rely on the Keenan's recitation of Gandy's accusations in reaching her decision. Although the court relied on Keenan's observations of Gandy to assess the emotional impact of the incident on Gandy, the judge based her determination that Blaine placed the spikes under the car tire on finding Gandy credible and Blaine not credible. Thus, any admission of hearsay statements amounted to harmless error.

Lastly, we address Blaine's contention that the judge erred in denying his motion for reconsideration. A motion for reconsideration is addressed to the "sound discretion of the [c]ourt, to be exercised in the interest of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990) (internal quotation marks omitted)). Reconsideration, in pertinent part, is reserved for a situation where a "litigant wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application." D'Atria, supra, 242 N.J. Super. at 401.

In his reconsideration motion, Blaine submitted an expert report that opined that the spikes in question were baker's spikes. He argued that the judge found that he placed the spikes under Gandy's tire because he worked in the construction industry and had access to those type of spikes. With this new evidence, Blaine asserted the judge should have made a different decision or granted a new trial because there was no evidence that he had access to baker's spikes. We are not persuaded by this contention.

Blaine misconstrues the judge's decision. The judge's ruling had nothing to do with the type of spikes that were found under Gandy's car tire. She merely felt that because Blaine worked in construction he was more able to cause flat or deflated tires on Gandy's car, as well as to change passcodes to deny Gandy access to the house. While we don't necessarily see that connection, that was not the singular basis for the judge's decision. The primary reason for the judge's decision was her finding that Gandy's testimony was "extraordinarily credible" without any motive to be untruthful. On the other hand, she found that Blaine's denial was not credible. He had a motive and opportunity to place the spikes under the car tire, which is consistent with the numerous prior tire problems Gandy experienced. Accordingly, the judge did not abuse her discretion in denying the motion for reconsideration.

Affirmed.

1 Pursuant to R. 1:38-3(d)(10), we elect to use fictitious names to protect the identity of the victim.

2 Blaine is represented by different counsel on his appeal.