S.C. v. A.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1870-12T4

S.C.,

Plaintiff-Respondent,

v.

A.M.,

Defendant-Appellant.

__________________________________

January 23, 2014

 

Submitted November 18, 2013 Decided

 

Before Judges Yannotti and Ashrafi.

 

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County, Docket No. FV-02-1172-13.

 

Vito Sciancalepore, attorney for appellant.

 

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. He contends that the trial court violated his due process rights by rushing into a final hearing without giving him time to seek legal advice, and also that plaintiff failed to establish predicate acts of domestic violence or a need for a restraining order. Plaintiff has not filed opposition to the appeal.

Having reviewed the entire record and found it to contain ambiguous indications of defendant's preparedness and willingness to proceed to a final hearing on the first business day after the complaint was filed, we conclude that defendant is entitled to a new trial.

Defendant was fifty-one years old at the time of the domestic violence complaint. He and plaintiff had lived together for seven years and had no prior history of domestic violence filings or other judicial proceedings. Defendant was served with plaintiff's complaint and a temporary restraining order on a Saturday night, December 8, 2012. The complaint alleged that on that same date defendant had been:

[V]erbally abusive to the plaintiff in recent months and constantly arguing. During the course of a verbal argument, the plaintiff has repeatedly asked the defendant to leave the home. Today at approximately [6:20 p.m.], the defendant stated that "he has nothing to lose and will break her neck and burn the house down before he leaves."

 

The complaint charged a terroristic threat and harassment as the predicate acts of domestic violence. Regarding the history of prior domestic violence, the complaint stated: "There have been no reports of previous domestic violence made with the Ridgefield Park Police Department. However, the plaintiff reports this verbal confrontation has become quite regular in recent months."

The parties appeared before the Family Part that Monday morning, December 10, 2012. Neither was represented by an attorney. The court placed the parties under oath. Both stated they had no other witnesses to present. Because both parties spoke limited English and no translators were used, the transcript of the hearing contains many "indiscernible" designations and other language oddities that make the testimonial record somewhat obscure. We provide a lengthy summary here to reveal both the extent and the limitations of the evidence.

The judge first inquired whether plaintiff wished to proceed with a final hearing that day, and she answered yes. The judge then asked defendant if he had ever previously had a restraining order against him, and he answered no. The judge asked defendant if he had heard the judge's introductory explanation that had apparently been given to all persons on the court's calendar that morning.1 Defendant answered yes, but he also said he did not have a chance to get his hearing aid when he was removed from the home and that he would ask the judge to repeat if he did not hear something.

The judge summarized the allegations of plaintiff's complaint, and inquired briefly of the parties about their relationship for the purpose of determining the court's jurisdiction to hear the case as a domestic violence matter. Next, the judge provided a brief explanation of how the trial would proceed. The judge then engaged in the following colloquy with defendant:

COURT: After I hear all that, if I believe you committed harassment or terroristic threats or both; then I have to make a finding [i]f domestic violence occurred. And then, I will decide whether I think she needs the restraining order to be safe from further domestic violence.

 

DEFENDANT: Okay.

 

COURT: If yes, I give her the restraining order. If no, I dismiss the case. If I enter a restraining order against you, then today you'll be fingerprinted and photographed and [your] name will be added to a registry of people who have committed domestic violence. It's kept by the office of the Attorney General. It comes up in background checks. If you're not a legal citizen of the United States, it can affect your immigration status. I can award a penalty of 50 to 500 dollars. If she suffered financial damages, I can order you to pay damages.

 

So, understanding all of that, are you ready to go forward, today, representing yourself?

 

DEFENDANT: Let's say let's try what what happen, but I really don't know what's going on. Why should deduct (sic) to be honest

 

COURT: Okay. But you read the complaint; right? You know what the complaint says?

 

DEFENDANT: Yes. Yes. I read the complaint. I I know that

 

COURT: Let's hear from her.

 

DEFENDANT: What about let's see what happen

 

COURT: Okay.

 

DEFENDANT: and we take it from that point.

 

The judge then began questioning the parties, plaintiff first and then defendant, about the circumstances that led to the filing of the complaint. The judge also offered them opportunities to question the other. As best as we can understand the transcript, the following summarizes the testimony.

Plaintiff and defendant lived together in their home in Ridgefield Park, along with plaintiff's ten-year-old son. Defendant worked in construction jobs. He had essentially built the Ridgefield Park home for the parties, although plaintiff appears to have been the title owner of the home. The parties also owned another home in Florida that was occupied by a tenant. Earlier in their relationship, defendant was like a father to plaintiff's son, but in recent months, according to plaintiff, he no longer treated her and her son well.

It is not clear what caused the relationship to deteriorate, but financial difficulties and defendant's drinking were among the causes. Mortgage payments were not made on the Ridgefield Park home, and it was in foreclosure. According to plaintiff, defendant was drinking beer every night, although she also testified that, to her surprise, he would not seem drunk (in the sense of loss of his faculties), and he could still leave for work at seven o'clock every morning.

For some weeks or months before plaintiff filed her complaint, the parties had agreed to sleep in different rooms. She was avoiding him because he was verbally abusive when he drank, expressing disdain for her Hispanic origin and making other derogatory comments, including calling her a "hooker" (it appears from the record on one occasion). She was especially upset by his verbal abuse because it also occurred in the presence of her son.

Two weeks before filing the domestic violence complaint, plaintiff told defendant "this is not working anymore . . . I don't love you anymore. So, I want you to move out of the house." Defendant said he would not move until he received "papers from the court." On December 8, 2012, as well as two days earlier on December 6, defendant said to plaintiff that "before he get out of the house he gonna break my neck and he gonna burn the house down."

Plaintiff testified that she was afraid of him because she did not know what might be "in his head" when he drank. She slept in a separate room with her son and locked the door at night, also placing a chair against the door and a knife under her bed. Upon questioning by defendant, plaintiff readily acknowledged that defendant had never used physical force against her, except that he had pushed her once. There was no further testimony about the time or cause of the pushing incident.

Defendant testified that he did not drink every night, declaring that he would not be able to do dangerous work on a roof and in other construction tasks if he was "a drunk." Regarding plaintiff's fear, he seemed to testify that plaintiff had habitually locked their bedroom door. He was not aware of a chair or a knife since they had begun sleeping in separate rooms because he had never attempted to enter her bedroom. Defendant did not deny that he had pushed plaintiff once, but he testified he was not a violent person. He seemed to admit that he might have said offensive things but without meaning any harm to plaintiff. He lamented that the domestic violence complaint would interfere with his plan to become a citizen of this country, and consequently, his "life would be over."

According to defendant, he saw plaintiff infrequently, apparently because they would both leave for work early in the morning, and they never "had the chance" to talk with each other. He seemed to blame their financial problems for the destruction of the relationship. Their alienation escalated after she returned from a trip to Spain. He was upset because of a very high cell phone bill that resulted from the trip, but she would not talk to him about the bill.

Upon her return, she told him that women in America had rights, and she insisted that he move out within two weeks. He testified that he was willing to move out of the house, but he had no relatives or friends in this country that could aid him. He told plaintiff he had looked for an apartment but could not find one in the aftermath of Hurricane Sandy, in particular, near Staten Island where most of his construction work was located. He said to plaintiff that he would move into their house in Florida but had to wait until February when the tenant was expected to vacate. He asked her to give him until then to move out. According to defendant, she responded that she would allow him to stay in the Ridgefield Park home until March and then move into the Florida home if he paid her $15,000.

The testimony is unclear, but it appears that the parties had earlier maintained a substantial savings account, which was in defendant's name alone. He withdrew money about a year earlier and then lost it in stock investments, he said. In her testimony, plaintiff acknowledged that the money "was his," but she also believed they were both entitled to share it. She denied she had demanded $15,000 from him in exchange for allowing him to stay in the Ridgefield Park home. She insisted she was afraid of him and just wanted him to stay away from her because of his verbal abuse.

Defendant denied he had threatened to break plaintiff's neck or to burn the house. But near the end of the hearing, defendant said "maybe I said that." The trial judge subsequently credited the testimony of plaintiff and found that defendant had in fact made the threat on both December 6 and 8.

In her testimony, plaintiff also said "when he's mad, he just say whatever is coming from his mouth. And then, like five minutes later, he's okay, nothing happens. Everything's okay." Defendant seemed to acknowledge that description of his verbal abuse. He testified: "I have that kind of character. Like like she said. I'm saying words, after five minutes, for me everything is okay. I just said so." Although not clear because of the language barrier, we suspect defendant's testimony means that he said abusive or threatening words, but he did not mean them.

Both parties expressed a desire not to hurt each other as a result of the domestic violence allegations and the court proceedings. Plaintiff specifically said, "I don't wanna hurt him." She just wanted him to pack up his belongings and "disappear," and she wanted to "live in peace." Throughout the hearing, defendant expressed no verbal hostility to plaintiff and perhaps even seemed to sympathize with her distress, but he was frustrated by the turn in their relationship and wanted to defend himself against being labeled a drunk or a violent person. At the end of the hearing, he stated: "We don't want to hurt each others [sic]. And we don't want to live together. Just give me a chance to find apartment to live. If that is possible. If it's impossible, so, if I have to live in the street, I will live in the street."

In a brief oral decision, the judge found that defendant's threats on both December 6 and 8 were terroristic threats in violation of N.J.S.A. 2C:12-3(b). The judge also found that defendant committed the predicate act of harassment over a course of time by making derogatory statements about plaintiff. The judge granted a final restraining order to plaintiff.

After defendant retained an attorney and filed a notice of appeal, the judge issued a supplemental statement of reasons supporting her decision of December 10. See R. 2:5-1(b). The express purpose of the supplemental decision was to elaborate on the judge's conclusion that a final restraining order was necessary, in accordance with our discussion of the pertinent analysis in Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006). The judge also added that the statutory basis for a finding of terroristic threats was both subsections (a) and (b) of N.J.S.A. 2C:12-3. The judge noted that, despite peaceful "interludes" in the relationship, defendant abused alcohol and "became aggressive and threatening and frightening." The judge found "there was a genuine and substantial risk that he might carry out his threats and break plaintiff's neck or burn down the home." The judge found it "inconceivable" that defendant would be permitted back home after these findings.

Defendant argues on appeal that his due process rights were violated because the case proceeded to a final hearing before he was given an opportunity to consult with counsel and prepare a full defense; that his rights were further violated when the court found that he made terroristic threats on December 6, 2012, a date that was not specifically alleged in the complaint; and that the evidence was insufficient to find he had committed predicate acts of domestic violence that warranted a final restraining order.

In a domestic violence case, the standard of review on appeal is very deferential to the trial judge's findings of fact and the conclusions of law based on those findings. In Cesare v. Cesare, 154 N.J. 394, 413, 416 (1998), the Supreme Court placed trust in the expertise of Family Part judges to assess evidence of domestic violence and the need for a restraining order. Regarding the function of the appellate court, the Supreme Court held:

[A]n 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. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).]

 

Here, we recognize that the Family Part judge evaluated the testimony presented and concluded it proved defendant had committed acts of domestic violence and plaintiff was entitled to a final restraining order. See Silver, supra, 387 N.J. Super. at 128. We reject defendant's contention that the judge's findings and conclusions were erroneous. We are troubled, however, with the dispatch with which the case proceeded to a final hearing in the face of indications that defendant did not fully understand the proceedings or his potential defenses, especially in a close case.

Citing H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003), defendant argues that his due process rights were violated when the court proceeded to hold a final hearing on Monday morning December 10, 2012, less than one business day after he had been served with the domestic violence complaint. He argues that he did not knowingly waive his right to be represented by counsel.

A complaint for a domestic violence restraining order, however, is a civil rather than a criminal matter, and without the kind of consequences of magnitude that would entitle a defendant to a constitutional right to counsel. D.N. v. K.M., 429 N.J. Super. 592, 600-06 (App. Div. 2013). The court was not required to place on the record a formal waiver of counsel from defendant, as in a criminal case. See, e.g., Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562, 581-82 (1975); State v. Crisafi, 128 N.J. 499, 509-12 (1992). Nevertheless, "[d]ue process . . . does allow litigants a meaningful opportunity to defend against a complaint in domestic violence matters, which would include the opportunity to seek legal representation, if requested." D.N., supra, 429 N.J. Super. at 606 (citing Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006)).

Here, defendant did not request an opportunity to retain or consult an attorney before proceeding with the hearing. However, defendant said in his colloquy with the judge: "I really don't know what's going on." He indicated he was willing to hear what plaintiff had to say in pursuing her complaint and then would "take it from that point." As often happens where a case proceeds with unrepresented parties, the possibility of adjourning the case did not resurface after the evidentiary hearing began. Had nothing else developed that called into question defendant's due process rights, we would likely find no plain error in the court proceeding and concluding a final hearing in the absence of a request for adjournment.

But the proceedings took a turn that implicates additional due process rights of a domestic violence defendant. Plaintiff expanded the allegations of the complaint to include the same serious threat about injuring her and burning the house being made on December 6 as well as on December 8. The court subsequently relied on the expanded version of the most serious conduct alleged against defendant and concluded that the threats were in fact made and constituted predicate acts of domestic violence in the form of terroristic threats.

A domestic violence defendant has a due process right to be apprised before the time of the hearing of the allegations against him. SeeJ.D. v. M.D.F., 207 N.J. 458, 478-80 (2011). "At a minimum, due process requires that a party in a judicial hearing receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" H.E.S., supra, 175 N.J. at 321 (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)). "More particularly . . . due process forbids the trial court 'to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.'" J.D., supra, 207 N.J. at 478 (quoting H.E.S., supra, 175 N.J. at 322). The variation in this case merely expanded the time and scope of a predicate offense that was already alleged in the complaint. Still, the alleged repetition of the threat to injure plaintiff and burn down the house added significant weight to its probative value in the totality of the circumstances of this case.

In her supplemental decision, the judge interpreted plaintiff's testimony as indicating that defendant was "very violent" when he drank. The fact that the threat was made more than once seemed to influence the judge's conclusion that it was more than just words in the heat of passion and constituted a terroristic threat within the meaning of N.J.S.A. 2C:12-3(a) and (b). The court's finding that plaintiff reasonably feared the threat was, logically, based on the totality of plaintiff's allegations rather than the occurrence of a single incident.

Defendant had a right to notice that he would be defending against an allegation that he had made such a serious threat on multiple occasions. See J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998); L.D. v. W.D., Jr., 327 N.J. Super. 1, 4 (App. Div. 1999). Yet upon reading the complaint, defendant was only apprised of a single threat and, very generally, of prior verbal arguments as constituting the history of domestic violence that had been alleged.

We do not mean to suggest that, in every case, the addition of a prior similar incident will prejudice the defendant or require an adjournment of the hearing. In the specific circumstances of this case, however, the issue of whether defendant meant his words to be taken as a real threat was crucial to a finding of domestic violence warranting a final restraining order.

"In the domestic violence context, an act of terroristic threats requires that (1) the abuser threatened the victim; (2) the abuser intended to threaten the victim; and (3) 'a reasonable person would have believed the threat.'" Id. at 121-22 (quoting Cesare, supra, 154 N.J. at 402). Given the history of the parties' relationship, there was a potential defense that defendant did not mean to make a real threat and his words were not reasonably believable. The charge of making terroristic threats was potentially defensible on the basis of whether the threats were made "under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out." State v. Dispoto, 189 N.J. 108, 121 (2007) (quoting N.J.S.A. 2C:12-3(b)).

Although plaintiff testified that she was frightened and slept with her room locked and barricaded, her nighttime fright apparently preceded defendant's threats, and possibly even the time they began sleeping in separate rooms. In addition, her fear was based on a vague apprehension that "something in his head and then [he] try to do something to me." There was no history of physical violence by defendant against plaintiff or anyone else. There was no history of threats of physical violence before December 6, 2012, only derogatory remarks that, alone, were unlikely to warrant entry of a final restraining order. See, e.g., E.M.B. v. R.F.B., 419 N.J. Super. 177, 182-83 (App. Div. 2011); C.M.F. v. R.G.F., 418 N.J. Super. 396, 399, 403-04 (App. Div. 2011); State v. L.C., 283 N.J. Super. 441, 445, 450-51 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996); Peranio v. Peranio, 280 N.J. Super. 47, 50, 55-56 (App. Div. 1995); Murray v. Murray, 267 N.J. Super. 406, 408-10 (App. Div. 1993).

The history of abuse in the relationship can be the most important aspect of the court's findings and conclusions in a close case. See H.E.S., supra, 175 N.J. at 327-28; Cesare, supra, 154 N.J. at 402, 405; Peranio, supra, 280 N.J. Super. at 54. In Cesare, supra, 154 N.J. at 405, the Court noted that "a particular history can greatly affect the context of a domestic violence dispute." Accord State v. Hoffman, 149 N.J. 564, 585 (1997); Silver, supra, 387 N.J. Super. at 128.

Here, the testimony at trial was not clear regarding plaintiff's allegations of past domestic violence. In her testimony, plaintiff alleged prior verbal abuse by defendant for several months, but she also seemed to say that his offensive conduct did not persist for a long time, stating that he was "okay" five minutes later. She acknowledged there was no physical violence except one pushing incident that was not further explained.

We are ever mindful of our limited function as a reviewing court under the standard established in Cesare, supra, 154 N.J. at 412. The trial judge heard the testimony firsthand and observed the parties. She relied on those observations in reaching her conclusions and decision. As the Supreme Court said, the trial judge is in a better position than we are to determine whether the evidence fulfills the elements necessary to prove predicate acts of domestic violence and the need for a restraining order. Id. at 413, 416. Therefore, we reject defendant's argument that the evidence was insufficient as a matter of law to demonstrate domestic violence and the need for a restraining order.

However, with time and opportunity to consult with counsel if so inclined, and to prepare to answer all the allegations that the trial court relied upon in its decision, defendant might have been able to persuade the judge that his threats were merely empty words and his other abusive statements were more in the nature of "ordinary domestic contretemps" following a dispute about possession of the couple's home, as in Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995). In defending against the charge of making terroristic threats, defendant may have presented a more persuasive defense that his conduct did not threaten "immediate danger to the person or property," id. at 248 (citing N.J.S.A. 2C:25-29(a)(2)), and thus did not warrant entry of a final restraining order, especially because he was willing to remove himself from the home.

A final domestic violence restraining order has serious consequences for the defendant against whom it is entered. See J.D., supra, 207 N.J. at 474; N.J.S.A. 2C:25-29(b), -30, -31,

-34. Here, we heed the Supreme Court's recent remarks that: "When permitting plaintiff to expand upon the alleged prior incidents and thereby allowing an amendment to the complaint, the court also should have recognized the due process implication of defendant's suggestion that he was unprepared to defend himself." J.D., supra, 207 N.J. at 480.

Our lack of confidence in the outcome of the hearing derives from the alacrity with which the proceedings occurred in a relatively close case, together with a language barrier and defendant's questionable understanding of his due process rights. A new trial will allow defendant to prepare and present his defenses fully to the court, and it should not cause any prejudice to plaintiff, who has received the protection of a restraining order since the time her complaint was filed. See ibid. (continuation of temporary restraining order pending adjournment to permit defendant to prepare his defenses).

We reverse and remand for a new trial. The temporary restraining order issued on December 8, 2012, shall remain in effect pending a new trial or other disposition in the Family Part. We do not retain jurisdiction.

1 We have not been provided a transcript of the court's introductory remarks.