A.A. v. K.O.

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RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5516-12T2

A.A.,

Plaintiff-Respondent,

v.

K.O.,

Defendant-Appellant.

______________________________

December 8, 2014

 

Submitted November 18, 2014 - Decided

Before Judges Koblitz and Higbee.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-1618-13.

Kuttner Law Offices, attorneys for appellant (Robert D. Kuttner, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant K.O. appeals from the June 11, 2013 Final Restraining Order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, as well as a July 16, 2013 order denying reconsideration. He argues that the judge did not allow him to present his side fully at trial nor allow his attorney to argue fully at the motion for reconsideration. Defendant also maintains that the evidence was insufficient to support the judge's finding of harassment, as defined by N.J.S.A. 2C:33-4, and also insufficient to demonstrate that plaintiff needed the protection of an FRO, pursuant to Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). We affirm substantially for the reasons expressed by Judge James P. Wilson in his oral opinions.

At the hearing, Judge Wilson explained the ramifications of an FRO. He told the parties that an FRO in New Jersey lasts for an indefinite period of time and carries with it "great consequences" that could affect employment. Judge Wilson informed the parties about the Domestic Violence Registry,1 fingerprinting of defendant, and the potential consequences of a violation of an FRO. The judge also explained in detail that the burden of proof was on plaintiff to prove that she qualified as a victim pursuant to statute based on her relationship with defendant, that defendant committed an act of domestic violence and that plaintiff needed an FRO to protect her from immediate danger or future acts of domestic violence. Judge Wilson then explained the trial procedures, beginning with the direct testimony of plaintiff followed by cross-examination and then defendant's opportunity to "present his side of the story through his testimony [and the] testimony of any witnesses, and [to] submit any evidence he wishes this [c]ourt to consider." Judge Wilson gave both parties an opportunity to adjourn the matter in order to obtain counsel. Both parties chose to proceed without attorneys.

Plaintiff testified that defendant, her husband of one year, had filed a complaint for divorce. On May 20, 2013 at 5:30 a.m., they were arguing about defendant's involvement with another woman. She testified,

And all of a sudden, he told me if I don't shut up, he's going to throw me out a window. So I just got up, and I was scared of him. And I just put my clothes on, and I was ready to go to work. So I left the house.

Plaintiff then stated that she called defendant from work later that day and told him she wanted to come by to pick up her check. Defendant told her that he had moved her belongings to the garage and she was not welcome in the apartment. She went to the apartment after work and found all her possessions strewn about the garage. Defendant had changed the locks and she could not get into the apartment. She then went to stay with her mother in Philadelphia and called defendant. He told her, "[Y]ou can't come here, if you come here there's going to be blood."

She went to the apartment with the police and found her clothes in boxes, some of them wet. She said that defendant sent texts to her and her extended family "cursing [her] out." She said defendant threatened her. On cross-examination, she admitted that she sent text messages to defendant before she applied for a restraining order, but only in an attempt to obtain her belongings. Plaintiff also indicated that defendant had moved out of the apartment and that, after she obtained a Temporary Restraining Order (TRO), defendant went to her father in Rhode Island indicating he did not "want [her] anymore."

Defendant then testified, saying the parties did not argue over another woman, but rather because plaintiff had obtained funds from a legal settlement and wanted a divorce. He said that plaintiff never actually moved to his apartment in New Jersey, instead she went back and forth to Philadelphia. He said that he did not want it "to get to a level where it became violent." Defendant said that plaintiff asked him to put her things in storage and that he heard plaintiff arguing with the police when they came to get her belongings. He denied that he threatened plaintiff and said he had not moved and the lease was in his name alone.

In his decision, Judge Wilson recapped the testimony of the two parties and indicated that he found plaintiff more credible. He found that defendant had committed an act of harassment by engaging in a course of alarming conduct. He explained to the parties that even though the apartment was in defendant's sole name, it was still the marital residence. Distinguishing the facts from "domestic contretemps," Judge Wilson also found that plaintiff needed an FRO, particularly because defendant had been contacting her family after the TRO was entered.

After Judge Wilson made his decision, defendant explained that in the part of the world where the parties come from, it is a custom to inform the wife's father when the marriage is over. Judge Wilson indicated that he respected that tradition, but found in this matter that defendant acted with the purpose of harassing plaintiff.

"[F]indings 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) (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 Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation and internal quotation marks omitted). 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.

When determining whether to grant an FRO, a trial judge must make two determinations. "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." Silver, supra, 387 N.J. Super. at 125. Harassment is a predicate act. N.J.S.A. 2C:25-19(a)(13). If a predicate act is established, the court must then determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126-27.

To obtain an FRO based on harassment, a plaintiff must prove by a preponderance of the evidence that defendant has committed the act of harassment, as defined in N.J.S.A. 2C:33-4. The type of harassment found by Judge Wilson occurs if a person, with purpose to harass another, "[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33-4(c). Our Supreme Court has said that "[a] finding of a purpose to harass may be inferred from the evidence presented and from common sense and experience." H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) (citations and internal quotation marks omitted).

After Judge Wilson rendered his decision, defendant stated that he followed tradition in contacting plaintiff's father. Our Supreme Court has stated, "We do not imply that, in evaluating claims of domestic violence, an individual can have only one motive or intent." J.D. v. M.D.F., 207 N.J. 458, 487 (2011). That defendant sent texts to other members of plaintiff's family supports the judge's finding that defendant acted with more than a purpose to follow tradition. The repeated contacts indicate an intention to harass, as does the unilateral changing of the locks and placement of plaintiff's possessions outside the home. Defendant's verbal threat of "there will be blood" also supports a finding of conduct causing annoyance and alarm. Plaintiff testified that she was "scared," a further support for the type of "anxiety or distress" required for such a finding. H.E.S., supra, 175 N.J. at 327. Plaintiff also testified that she was concerned that defendant would continue to harass her. This concern, based on defendant's behavior, is sufficient to justify the need for an FRO.

After the FRO was granted, defendant filed a motion for reconsideration without requesting oral argument. Defendant appeared on the return date with counsel. Judge Wilson explained that plaintiff did not appear because oral argument had not been requested. Counsel sought to argue nonetheless, as well as introduce evidence not introduced by defendant at the trial.2 Without explaining how this evidence was "newly discovered," see Rule 4:50-1,3 counsel tried to reargue the entry of the FRO. Judge Wilson indicated that defendant had had the opportunity to present evidence at trial. The judge also made clear that he did not want substantive discussion of new matters when plaintiff was not present.

Unquestionably a party is not permitted to first try a case without counsel and, after he loses, hire counsel and start over with a new trial. Prior to the trial, Judge Wilson was particularly careful to explain to the parties the consequences of an FRO and the trial process. He gave both parties an opportunity to retain counsel before trial. Defendant made the choice to proceed without counsel and is bound by that decision.

We affirm both the entry of the FRO and the denial of reconsideration based substantially on the reasons expressed by Judge Wilson.

Affirmed.


1 Pursuant to N.J.S.A. 2C:25-34, "[t]he Administrative Office of the Courts shall establish and maintain a central registry of all persons who have had domestic violence restraining orders entered against them . . . ."

2 As no motion to supplement the record was made pursuant to Rule 2:5-5, we have disregarded all evidence attached to defendant's brief that was not introduced at trial.

3

In order for relief to be granted on the ground of newly discovered evidence, the new evidence must (1) be material to the issue and not merely cumulative or impeaching,(2)have been discovered since the trial and must be such as by the exercise of due diligence could not have been discoverable prior to the expiration of the time for moving of a new trial; and (3) be of such a nature as to have been likely to have changed the result if a new trial had been granted.

[Pressler & Verniero, Current N.J. Court Rules, comment 5.2 on R. 4:50-1 (2015).]