B.L.F. v. T.G.C.

Annotate this Case
RECORD IMPOUNDED

                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4544-17T2

B.L.F.,

          Plaintiff-Respondent,

v.

T.G.C.,

     Defendant-Appellant.
___________________________

                   Submitted April 29, 2019 – Decided May 21, 2019

                   Before Judges Haas and Susswein.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Sussex County,
                   Docket No. FV-19-0406-18.

                   Paris P. Eliades Law Firm LLC, attorneys for appellant
                   (Gretchen Fry Rafuse, on the brief).

                   Respondent has not filed a brief.

PER CURIAM

          Defendant T.G.C. appeals from a final restraining order ("FRO") entered

against him pursuant to the Prevention of Domestic Violence Act of 1991
("PDVA"),  N.J.S.A. 2C:25-17 to -35, based on assault,  N.J.S.A. 2C:12-1(a),

harassment,  N.J.S.A. 2C:33-4(a), and stalking,  N.J.S.A. 2C:12-10(b).             We

affirm the grant of the FRO insofar as it based on the predicate offense of assault,

but reverse the trial court's findings that defendant committed the predicate acts

of harassment and stalking. We remand the case solely for the purpose of

amending the FRO to delete the references to the harassment and stalking

predicate acts. In all other respects, the FRO based upon assault is affirmed.

                                         I.

      To obtain a FRO under the PDVA, a plaintiff must establish two key

elements by a preponderance of the evidence. First, a plaintiff must prove that

defendant committed one of the predicate offenses enumerated in  N.J.S.A.

2C:25-19(a). Second, if a predicate offense is shown, plaintiff must show that

a restraining order is necessary for the protection of the victim. Silver v. Silver,

 387 N.J. Super. 112, 127 (App. Div. 2006).

      B.L.F. and defendant T.G.C. were involved in a short-lived, on-and-off

dating relationship. The trial court found that from the start, defendant sought

to exercise power and control over plaintiff. Defendant, for example, came

uninvited and unannounced to plaintiff's home, her gym, and to restaurants while

she was socializing with other friends. The ill-fated courtship culminated with


                                                                            A-4544-17T2
                                         2
a physical altercation in the parking lot of a fitness gym during which defendant

grabbed plaintiff by her arm in a manner that caused, as the trial judge found,

"obvious injuries and bruises."

      For purposes of this appeal, we focus on that physical altercation.

According to plaintiff's testimony, she saw defendant approaching the parking

lot as she was getting into her car. Plaintiff waited for him to come over. She

was upset because defendant previously appeared unexpectedly at various

locations where she was at. Plaintiff told defendant that she did not want to talk

to him and she started to roll up the car window. Defendant pushed down on

the window, keeping it from closing. Both of them were screaming at each other

and plaintiff testified that by this point in the encounter, she had become

extremely scared because defendant was in "an absolute rage." Plaintiff began

backing up her vehicle when defendant grabbed her left forearm. She testified

that she experienced pain and suffered bruises that were depicted in a

photograph that was introduced into evidence.

      Defendant offered a different version of the encounter. He testified that

his arm got stuck in the window, plaintiff started driving, was calling him

"psycho," and was punching his hand. He testified that plaintiff eventually let




                                                                          A-4544-17T2
                                        3
the window down "maybe a centimeter" and started driving again, at which point

defendant let go and slid to the ground.

      The trial judge found plaintiff to be a "truthful and credible witness" and

found "plaintiff's testimony to be far more credible than that of the defendant."

The court observed that while defendant made good eye contact and was well

spoken, "there were contents of his statements that simply defy logic and

common sense." With respect to the physical altercation in the parking lot, the

judge found that defendant's version was not credible, noting, "[t]he suggestion

that somehow, for example, she rolled up the window too fast, that he was unable

to get his arm out, just defies logic." The trial judge in rejecting defendant's

version also commented that, "those bruises [on the plaintiff depicted in the

photograph] don't come from somebody who is trying to get, get their arm out

of the vehicle."

                                            II.

      The scope of appellate review of a FRO is limited. A Family Part judge's

fact-finding is binding on appeal when supported by adequate, substantial,

credible evidence. Cesare v. Cesare,  154 N.J. 394, 411-12 (1998). Deference

to a trial judge's findings in a domestic violence matter is especially appropriate

when, as in the case before us, the evidence is largely testimonial in nature and


                                                                           A-4544-17T2
                                        4
involves questions of credibility. Id. at 412. This is so because the trial judge

has the opportunity to see and hear the witnesses as they testify, thereby

developing a "feel for the case" that can never be realized by a review of the

cold record. Ibid.

      The deference we give to a trial judge's fact-finding in domestic violence

cases also acknowledges the expertise of Family Part judges, who routinely hear

domestic violence matters. Id. at 413. An appellate court should not disturb the

"factual findings and legal conclusions of the trial judge unless [we are]

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.

      The trial judge in this case issued a thorough, detailed, and well-reasoned

oral opinion. The judge carefully linked his factual findings to the various

domestic violence offenses charged in the complaint. The court concluded that

plaintiff had not established that defendant committed the alleged act of criminal

mischief.    The court did find, however, that plaintiff had proved by a

preponderance of the evidence that the defendant committed the predicate acts

of assault, harassment, and stalking.




                                                                          A-4544-17T2
                                        5
      The trial court also found that plaintiff met the second prong of the two -

part Silver test by demonstrating that a FRO was needed to protect her from

future acts of domestic violence. The trial judge concluded that "with the type

of power and control that the defendant has attempted to exert upon her

throughout this very short-term relationship, a final restraining order is

necessary to protect the plaintiff from the immediate danger and further acts of

abuse that the defendant would likely carry out."

                                           III.

      On appeal, defendant raises the following contentions:

            I.   POINT ONE:   THE COURT ERRED IN
            PERMITTING THE PLAINTIFF TO TESTIFY
            ABOUT EVENTS THAT WERE NOT CONTAINED
            IN THE COMPLAINT.

            II. POINT TWO: THE TRIAL COURT ERRED IN
            FINDING THE DEFENDANT HAD THE REQUISITE
            INTENT TO COMMIT THE PREDICATE ACT OF
            HARASSMENT UNDER  N.J.S.A. 2C:34-4.

            III. POINT THREE: THE TRIAL COURT ERRED
            IN FINDING THE DEFENDANT COMMITTED
            HARASSMENT UNDER  N.J.S.A. 2C:33-4(A)
            BECAUSE THE DEFENDANT WAS NO [SIC]
            ENGAGING      IN     THE     PROHIBITED
            COMMUNICATION AS PER THE STATUTE.

            IV. POINT FOUR: THE TRIAL COURT ERRED IN
            FINDING THAT THE DEFENDANT COMMITTED
            THE PREDICATE ACT OF STALKING BECAUSE

                                                                         A-4544-17T2
                                       6
            THE DEFENDANT'S ACTIONS ON APRIL 23 AND
            APRIL 29 DID NOT CONSTITUTE A "COURSE OF
            CONDUCT" AS REQUIRED BY THE STATUTE.

            V.  POINT FIVE: THE TRIAL COURT ERRED IN
            FINDING THAT THE DEFENDANT COMMITTED
            THE PREDICATE ACT OF STALKING BECAUSE
            THE DEFENDANT'S ACTIONS ON APRIL 23 AN
            APRIL 29 WOULD NOT "CAUSE A REASONABLE
            PERSON TO FEAR FOR HER SAFETY OR SUFFER
            OTHER EMOTIONAL DISTRESS."

            VI. POINT SIX: THE TRIAL COURT ERRED IN
            FINDING THE DEFENDANT COMMITTED THE
            PREDICATE ACT OF ASSAULT BECAUSE THERE
            WAS NO INTENT TO CAUSE BODILY HARM.

            VII. POINT SEVEN: THE TRIAL COURT ERRED
            IN NOT HAVING TOLERANCE FOR THE
            DEFENDANT'S BEHAVIOR AS A DISAPPOINTED
            SUITOR PER SWEENY V. HONACHEFSKY, 313
            N.J. SUPER. 443 (APP. DIV. 1998).

            VIII. POINT EIGHT: THE TRIAL COURT ERRED
            IN THE FINDING THAT A DOMESTIC VIOLENCE
            RESTRAINING ORDER WAS NECESSARY TO
            PROTECT THE VICTIM FROM AN IMMEDIATE
            DANGER OR TO PREVENT FURTHER ABUSE
            UNDER THE SECOND PRONG OF SILVER V.
            SILVER,  387 N.J. SUPER. 112 (APP. DIV. 2006).


      We have considered defendant's contentions on appeal in light of the

record and applicable legal principles and conclude that all but one are without




                                                                        A-4544-17T2
                                       7
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).1

The one contention that warrants a more fulsome discussion pertains to

defendant's argument in Point I of his brief that the trial court improperly

allowed plaintiff to testify about two unplanned encounters that were not

specifically identified in the amended complaint. We conclude that it was

improper for the trial court to consider testimony concerning these two

additional episodes without asking the defendant whether he needed time to

prepare a response to those new allegations. It is not clear on this record whether

and to what extent plaintiff's testimony concerning these additional incidents

may have affected the trial's court's conclusions with respect to the harassment

and stalking predicate offenses. It is clear, however, that plaintiff's testimony

about these two additional incidents would have no effect on the trial court's

findings with respect to the assault predicate offense and the need for a FRO

based on that assault.

      In J.D. v. M.D.F.,  207 N.J. 458 (2011), the Supreme Court confirmed that

"ordinary due process protections apply in the domestic violence context,

notwithstanding the shortened time frames for conducting a final hearing." Id.


1
   In view of our decision to vacate the predicate offenses of harassment and
stalking based on the argument that defendant makes in Point I of his brief, the
issues raised by defendant in Points II, III, IV, and V are moot.
                                                                           A-4544-17T2
                                        8
at 478. "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.'" Ibid. (quoting McKeown-Brand v. Trump Castle Hotel & Casino,

 132 N.J. 546, 559 (1993)). Accordingly, 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.'" Ibid. The Court in J.D. nonetheless recognized that plaintiffs

seeking protection under the PDVA often "expand upon [the] history of prior

disputes when appearing in open court" and the Court acknowledged that trial

judges often will "attempt to elicit a fuller picture of the circumstances[.]" Id.

at 479.

      In domestic violence cases where one or both parties are not represented

by counsel at the FRO hearing, it often is necessary for the trial judge to take a

lead role in posing questions to the parties when they testify. Otherwise, a pro

se party's direct examination might consist of a rambling narrative, unbounded

by questions that serve to focus a litigant's testimony on relevant circumstances

and help to ensure that only competent, admissible (e.g., non-hearsay) evidence

is proffered.




                                                                          A-4544-17T2
                                        9
      The Court in J.D. explained that judges should "use the allegations set

forth in the complaint to guide their questioning of plaintiffs." Id. at 479. The

Court warned judges to avoid posing the sort of questions that would induce a

plaintiff to "abandon the history revealed in the complaint in favor of entirely

new accusations." Ibid.

      The record in this case hardly suggests that the trial judge posed questions

that induced plaintiff to "abandon" the allegations in the amended complaint in

favor of entirely new allegations. On the contrary, most of the judge's questions

sought to elicit plaintiff's testimony about incidents that were specified in the

amended complaint, and for the most part, plaintiff's testimony related to the

predicate acts and past history of domestic violence averred in the complaint.

Cf., J.F. v. B.K.,  308 N.J. Super. 387, 391 (App. Div. 1998) (trial court

improperly granted a FRO based not on the act of domestic violence alleged in

the complaint but rather on a course of prior conduct that, with the exception of

one incident, was not even mentioned in the complaint).

      The trial judge nonetheless posed a question that was reasonably likely to

invite testimony about allegations not found in the amended complaint when the

judge asked plaintiff, "Were there other places and times when the defendant

appeared without notice?" This question did not focus plaintiff's attention to the


                                                                          A-4544-17T2
                                       10
dated events enumerated – in the amended complaint and thus unwittingly

prompted plaintiff to discuss an unplanned encounter with defendant at a tavern

– an episode that was not mentioned in the amended complaint. Toward the end

of plaintiff's testimony, the judge also asked her, "Do you have any additional

testimony for the Court to consider that you've not already provided?" Plaintiff

responded by discussing yet another incident not mentioned in the amended

complaint where, according to plaintiff's testimony, defendant followed plaintiff

and her friends a considerable distance from one restaurant to another.

      We see nothing improper in the trial judge's question concerning any other

incidents when defendant appeared unexpectedly, much less the judge's more

generic question concerning any other evidence that plaintiff might want to

proffer. As to the former question, although it did not focus her attention to an

event specifically mentioned in the amended complaint, it seems to have been

geared to "elicit a fuller picture of the circumstances" as contemplated by the

Supreme Court in J.D.,  207 N.J. at 479. The latter omnibus question, moreover,

seems appropriate to ensure that an unrepresented plaintiff has tendered all

relevant evidence. Our concern, therefore, is not that these questions were

asked, but rather with how the trial court responded to plaintiff's answers.




                                                                          A-4544-17T2
                                       11
      The Court in J.D. took pains to explain that trial courts do not have to limit

a plaintiff's testimony to "the precise prior history revealed in the complaint"

because testimony may reveal additional prior events. Ibid. However, the Court

in J.D. emphasized that a trial court "must recognize that if it allows that history

to be expanded, it has permitted an amendment to the complaint and must

proceed accordingly." Id. at 479-80.

      How a court should proceed at that point will depend on the

circumstances. As the Court in J.D. noted, some defendants may be well-

prepared to respond to additional allegations while others may not. Id. at 480.

The Court cautioned, however, that "in all cases the trial court must ensure that

defendant is afforded an adequate opportunity to be apprised of those allegations

and to prepare." Ibid. (emphasis added).

      In this case, defendant posed no objection to the court's questions or to

plaintiff's answers. Nor did defendant ask for more time to prepare a response

to plaintiff's testimony concerning either additional encounter, even though he

ostensibly knew that he could ask for more time based upon his colloquy with

the judge earlier that day after plaintiff formally amended the complaint to




                                                                            A-4544-17T2
                                        12
include additional allegations. 2 We are not prepared, however, to assume that a

pro se defendant impliedly waived the right to ask for more time to respond to

new allegations.

      In his own testimony, moreover, defendant specifically responded to

plaintiff's allegations regarding the additional incident at the tavern, but did not

respond to the additional incident during which he is alleged to have followed

plaintiff and her friends from one restaurant to another. That at least suggests

the possibility that defendant may not have been prepared to respond to the latter

allegation.

      Applying the principles set forth in J.D. to the case before us, we believe

that the trial judge should have treated plaintiff's testimony about the two

additional incidents as the functional equivalent of another amendment to the

complaint.    The judge therefore ought to have conducted a colloquy with

defendant like the one that took place earlier that day, see footnote 2,




2
  On the morning of the FRO hearing, plaintiff amended her complaint to add
what the trial court described as "significant information about predicate acts,
as well as, going from no prior domestic violence history to including
information about domestic violence history." The court addressed defendant
and asked him if he was "in a position to be able to adequately respond to all
those [new] allegations." Defendant answered in the affirmative. The FRO
hearing was heard that afternoon.
                                                                            A-4544-17T2
                                        13
establishing for the record whether defendant needed more time to prepare a

response to those additional allegations.

      In rendering his oral opinion, the trial judge discussed both additional

encounters. We therefore cannot say based on the record before us whether and

to what extent those incidents contributed to the factual basis for the judge's

decision to find that defendant had committed the predicate offenses of

harassment and stalking, since both of those offenses may entail multiple events

constituting a course of conduct. We see no need to remand this case for

clarification by the trial court, however, because the failure to afford defendant

the opportunity to ask for an adjournment to prepare to address the additional

incidents was harmless with respect to the predicate offense of assault.

      We are satisfied in this regard that plaintiff's testimony concerning the

two incidents not mentioned in the amended complaint had no bearing on the

trial court's finding that defendant committed the predicate act of assault in the

fitness gym parking lot. The trial judge explicitly rejected defendant's version

of that particular incident, finding that defendant's testimony about that physical

altercation defied logic and was inconsistent with the bruises the victim

sustained as shown in the photograph admitted into evidence.




                                                                           A-4544-17T2
                                       14
      Furthermore, the trial court's consideration of plaintiff's testimony about

the additional incidents would not affect the second Silver prong with respect to

the assault predicate offense. When a judge finds that an act of physical violence

has occurred, the need for entry of a FRO may be presumed. See S.K. v. J.H.,

 426 N.J. Super. 230, 233 (App. Div. 2012). It is well-settled in this regard that

the need for a restraining order in cases where physical violence is proven is

"perfunctory and self-evident." Silver,  387 N.J. Super. at 127.

      Only one predicate act need be proved to authorize a FRO, and we are

satisfied that in this instance, the assault predicate act alone provides ample

reason to afford plaintiff the protection of a restraining order. That being so,

there is no reason to remand the case to determine whether, if the testimony

regarding the two additional incidents were redacted, the trial court would have

found that plaintiff proved by a preponderance of the evidence that defendant

committed the predicate offenses of harassment and stalking.

      For the foregoing reasons, out of an abundance of caution and to obviate

the time, expense, and delay of a remand that would not in any event affect the

ultimate decision to issue a FRO, we reverse the trial court's finding that

defendant committed harassment and stalking.        We affirm the trial court's

finding that defendant committed assault and also affirm the trial court's ruling


                                                                          A-4544-17T2
                                       15
that the issuance of the FRO is needed to protect the victim. We remand this

case solely for the purpose of amending the FRO to delete references to the

harassment and stalking predicate acts. Those amendments to the FRO have no

effect on the restraints barring defendant from having any contact with plaintiff

or on any other remedy ordered by the trial court pursuant to the PDVA.

      Affirmed in part, reversed and remanded in part. We do not retain

jurisdiction.




                                                                         A-4544-17T2
                                      16