M.A.T. v. 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NOT FOR PUBLICATION WITHOUT THE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-0

M.A.T.,

Plaintiff-Respondent,

v.

V.A.M.,

Defendant-Appellant.

_______________________________

May 14, 2014

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1483-12.

B. Michael Rubinstein, attorney for appellant.

M.A.T., respondent pro se.

PER CURIAM

Defendant V.A.M. appeals from a March 16, 2012 final restraining order entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. On appeal, defendant maintains the trial judge trampled his procedural due process rights by preventing his presentation of evidence. Defendant also argues the order must be vacated because his counsel was ineffective. Following our review of the arguments presented, in light of the record and applicable law, we reject defendant's contentions and affirm.

The parties, represented by counsel, participated in a one-day domestic violence trial. Testimonial evidence was presented by plaintiff, plaintiff's tenant Raymond Talbot, who saw a portion of the alleged altercation, and defendant. These facts are taken from the trial record.

The parties have one child, who was born in 2007. A disagreement arose on January 29, 2012, when defendant returned the child to plaintiff's home following his visitation weekend. Defendant arrived and plaintiff came to the door to retrieve the child. However, the child was not ready to separate from his father, saying he "missed his daddy." Plaintiff allowed father and son time alone to talk and say goodbye. After waiting approximately fifteen minutes, plaintiff returned to the door and informed the child it was time to come in the house as it was cold. Thereafter, the parties commenced bickering over the extent and consistency of defendant's parenting time.

While carrying the child, defendant started walking back to his truck. Plaintiff asked what he was doing and testified defendant remarked he was going home with the boy. Plaintiff protested and attempted to block his vehicle's departure. She maintains defendant began using profanity, calling her vulgar names, and, with the child in his arms, struck her in the head with his right hand. Plaintiff began crying and called 9-1-1.

At that point, Talbot, who was outside smoking a cigarette, asked plaintiff, "What's going on?" Talbot testified he heard arguing, saw defendant's hand strike plaintiff, and she "stumbled back." With the child still in his arms, defendant walked up to Talbot "like he wanted to fight" and said "mind your business" and "[s]tay out of it[.]" At least two police officers arrived and began interviewing the parties and Talbot.

During trial, plaintiff stated the blow was hard and gave her a headache. She acknowledged she had no visible injuries from being struck and did not seek medical treatment. Plaintiff expressed she feared defendant and generally related prior acts of domestic violence that he committed, including a five-year-old incident when he choked her and an altercation occurring six years before the trial.

Defendant's testimony regarding the child's hesitancy in separating from him aligned with plaintiff's; he stated as he coaxed the child it was time to go home, plaintiff allowed him additional time alone with the child. However, the details of the evening's events diverged from that point. Defendant testified plaintiff returned after five minutes. He described his dialogue with her, stating plaintiff accused him of missing his parenting time. Defendant turned his back to plaintiff and walked toward his vehicle, intending to remove the child from the cold while he addressed the issues with plaintiff. At that point, plaintiff began yelling to him that he was not taking the child, called him a vulgar name, and kicked his shin.

Defendant testified plaintiff was falsely accusing him of striking her, insisting he had not laid a hand on her. Defendant also maintained Talbot did not see him strike plaintiff because it never happened. He denied threatening Talbot, but admitted he told him the disagreement with plaintiff was not his concern. He explained his efforts were designed to diffuse the volatility of the situation for his son's benefit.

Defendant related a prior act of domestic violence committed by plaintiff, specifically, an incident occurring in Sayreville in 2004, when she was arrested. Further, he accused plaintiff of lying in the past, in an effort to be awarded domestic violence relief.

In his closing argument, defendant maintained his testimony was credible and should be accepted, thereby defeating plaintiff's incredible claim he struck her while holding the child in his arms. Plaintiff offered no further remarks, submitting on the evidence.

At the close of evidence, the trial judge issued a bench opinion. First, he made findings supporting jurisdiction under the PDVA. Next, he assessed the evidence, noting plaintiff's and Talbot's descriptions of defendant's actions were consistent. The judge found Talbot "believable and credible," stating his testimony did not sound "mechanical or rehearsed." The judge also found plaintiff believable. Based upon the facts as testified by plaintiff and Talbot, the judge concluded defendant committed an act of simple assault, an offense within the scope of the PDVA. Finally, noting the parties' volatile past relationship, the judge found it necessary to enter a final restraining order to protect plaintiff from the likelihood of future acts of domestic violence.

The final restraining order, which was entered following the hearing, among other things, enjoined defendant's contact with plaintiff and prohibited future acts of domestic violence. The order did not alter the existing parenting time schedule, as set forth in a prior non-dissolution order, except to change the person who would drop-off and pick up the child. Defendant's appeal ensued.

The scope of our review of a trial court's factual findings is limited. D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013) (citation omitted), certif. denied, 216 N.J. 587 (2014). "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, 411-12 (1998) (citation omitted). Reversal is warranted only when such findings are "so wide of the mark that a mistake must have been made[,]" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted), including factual findings "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). See also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (discussing "limited" appellate review). Our review of a trial court's legal conclusions is always plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

When determining whether to grant a final restraining order pursuant to the PDVA, a judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006). "First, the judge must 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." Id. at 125. Second, there must also be a finding that "relief is 'necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)). In this regard, it is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19(a) does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super.47, 54 (App. Div. 1995). The determination of whether such an order should be issued must be made "in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment[,] and physical abuse[,] and in light of whether immediate danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29(a)(1) and (2)). Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order 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." Silver, supra, 387 N.J. Super. at 127 (citation omitted).

On appeal, defendant principally argues the trial judge denied his right of procedural due process by failing to allow him to call the responding police officers as witnesses. We review this argument, made for the first time on appeal, applying the plain error standard of review; thus reversal is warranted only if trial error was "clearly capable of producing an unjust result." R. 2:10-2. See also Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008); Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 493 (2001). Prior to our review, we recite the factual context related to this issue.

In the midst of Talbot's cross-examination, the defense asked him whether he remembered telling the investigating police officer that he could not definitely say defendant struck plaintiff. Talbot denied this suggestion and said he "definitely told" the police defendant had struck plaintiff. When defense counsel asked Talbot whether the police officer lied in his police report, the court stopped the line of questioning. Defense counsel suggested he could produce the officer on rebuttal.1 The judge remarked, "[i]f this was critical[,] you should have had the cop here." When counsel suggested he could still produce the officer, the judge stated: "Not unless you can do it by 4:30 this afternoon. We're here for trial." The record contains no objection to the judge's comment.

At the close of defendant's testimony, the judge asked: "[D]oes anyone want to be heard?" Defendant sought to provide a summation, but neither asked to present additional witnesses nor requested an adjournment to produce the police officer.

The court's need to assure and protect a party's due process rights is fundamental in our jurisprudence. Moreover, "[t]he right to present witnesses is an essential element in the conduct of a trial[.]" Cardell, Inc. v. Piscatelli, 277 N.J. Super. 149, 155 (App. Div. 1994) (internal quotation marks and citation omitted).

Defendant now suggests he had no reason to call the police officer until Talbot changed his story. He maintains it was error to deny him the opportunity to call this critical witness. We disagree and determine defendant's claim of deprivation of due process is unfounded. The record does not support defendant's assertion he was denied the opportunity to present a critical witness, as well as the suggestion he could not anticipate the need for the officer's presence.

Defendant was well-aware a report issued following the police response to plaintiff's 9-1-1 call. That report contains Talbot's statement that "he saw [defendant] swing his arm toward the direction of [plaintiff], but could not definitively say whether [defendant] struck [plaintiff] or not." Consequently, defendant was on notice Talbot's statement supported plaintiff's assertion defendant swung at her.

Further, defendant had ample opportunity to prepare his defense. The case was originally listed for trial on February 7, 2012, when the parties appeared self-represented. Plaintiff requested an adjournment to engage counsel. The request was granted, with defendant's consent, and the trial rescheduled. In fact, defendant accepted the proposed adjournment stating: "That's fine. . . . If that's what she wants, that's even better because that gives me a time to get my stuff more together [sic] and get the [o]fficer[s] in here." Defendant also remarked the police had overheard defendant "g[e]t threatened by [plaintiff's] tenant[]," suggesting a need to present police testimony to challenge Talbot's credibility.

Trial was rescheduled for February 14, 2012 and again for March 1, 2012, each time the matter was adjourned.2 The trial was held on March 16, 2012.

Even after Talbot testified, defendant did not seek the opportunity to secure the officer's presence. Further, when asked by the judge if "anyone want[s] to be heard[,]" defendant made no request to continue the trial or recess to contact the police officer.

The facts show from the onset of this matter, defendant contemplated calling the police officer as a witness and was provided ample time to consider and prepare his defense, but changed his mind at the time of the final hearing and did not subpoena the officer.

Moreover, the impact of the officer's testimony is not clear. The police did not observe the incident; they merely responded after the altercation occurred. Following our review, we reject the notion defendant's constitutional rights were infringed based on these circumstances.

Defendant also asserts he was denied the effective assistance of counsel, citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Defendant argues domestic violence proceedings must comport with the constitutional protections similar to those in a criminal case, including the Sixth Amendment's right to counsel. He relies on this court's statement in Crespo v. Crespo, 408 N.J. Super. 25 (App. Div. 2009), aff'd, 201 N.J. 207 (2010), that "[d]ue process principles have been found to require the appointment of counsel in civil or quasi-criminal matters when an indigent party faces imprisonment or some 'other consequence of magnitude.'" Id. at 45.

After Crespo, we considered a defendant's challenge that counsel must be appointed to represent indigent litigants in domestic violence proceedings.

As the United States Supreme Court has recognized, the due process guarantee expressed in the Fourteenth Amendment to the United States Constitution, U.S. Const. amend. XIV, 1, includes "the requirement of 'fundamental fairness'" in a legal proceeding. Lassiter, [v. Dep't of Soc. Servs.,] 452 U.S. [18,] 24, 101 S. Ct. [2153,] 2158, 68 L. Ed 2d [640,] 648 [(1981)]. We observed in Crespo, supra, the New Jersey Supreme Court has interpreted Article I, Paragraph 1 of the State Constitution as "'protect[ing] against injustice and, to that extent, protect[ing] values like those encompassed by the principle[] of due process[,]'" 408 N.J. Super. at 34 (quoting Doe v. Poritz, 142 N.J. 1, 99 (1995)), even though the provision "does not expressly refer to the right to due process of law[.]" Ibid. Consequently, as a matter of fundamental due process, the right to counsel has been held to attach in certain civil matters.

[D.N., supra, 429 N.J. Super. at 602.]

We held, "[a] litigant in civil proceedings is entitled to a fair hearing, imbued with the protections of due process." Id. at 602 (citing A.B. v. Y.Z., 184 N.J. 599, 604 (2005); H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003)). However, "the protections of due process do not require the appointment of counsel for indigents presenting or defending a private party's civil domestic violence action." Id. at 606. This results because "unlike the Criminal Code, the [PDVA] is designed to remediate behavior. The [PDVA] does not impose incarceration if the court finds an act of domestic violence has been committed because the Legislature had no intention to create a new class of criminal offenses." Id. at 605 (citations and internal quotation marks omitted).

Because counsel is not constitutionally mandated, a claim challenging the effective assistance of counsel cannot be sustained. See e.g., N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007) (holding the constitutional right to counsel for indigent defendants in termination of parental rights matters also requires counsel to be effective). Consequently, defendant's suggested application of the principles set forth in Strickland is misplaced.

Affirmed.

1 The suggestion the officer would be produced in "rebuttal" likely meant to impeach Talbot rather than as a response to plaintiff's rebuttal evidence, if any, following defendant's case.

2 Plaintiff maintains these adjournment requests were made by defendant or his attorney.