C.J.C v. K.A.M

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                                NOT FOR PUBLICATION WITHOUT THE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-1208-19T2

C.J.C.,

          Plaintiff-Respondent,

v.

K.A.M.,

     Defendant-Appellant.
______________________________

                   Submitted November 17, 2020 – Decided December 3, 2020

                   Before Judges Fisher and Moynihan.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Ocean County, Docket
                   No. FV-15-0237-20.

                   Helmer, Conley & Kasselman, PA, attorneys for
                   appellant (Patricia B. Quelch, of counsel and on the
                   brief).

                   Respondent has not filed a brief.

PER CURIAM
      Plaintiff C.J.C. (Carl) and defendant K.A.M. (Kathy) resided together,

raising two children, for approximately five years – a period interrupted only for

a time when Carl was incarcerated. At the end of June 2019, their relationship

ended and Carl was asked to leave their apartment; Carl vacated the premises on

August 4, 2019. Two days later, Carl took the children to the doctor. After the

appointment, he reached out to Kathy, telling her they needed to talk. Carl

arrived at Kathy's apartment, where a physical encounter took place. Claiming

he was assaulted by Kathy and harassed by her telephone calls that soon

followed, Carl filed a complaint against Kathy under the Prevention of Domestic

Violence Act,  N.J.S.A. 2C:25-17 to -35. Kathy filed a similar complaint against

Carl, alleging an assault, harassment, criminal mischief, and criminal trespass.

      The parties' complaints were the subject of a five-day hearing in

September and October 2019, during which Judge Deborah L. Gramiccioni

heard from numerous witnesses. On October 7, 2019, the last hearing day, the

judge rendered thorough factual findings during the course of a lengthy and

comprehensive oral decision. The judge explained in great detail why she found

Carl to be far more credible than Kathy about the events on which their

complaints were based.




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      Kathy's version, according to the judge, "completely fell apart under

cross[-]examination as contrasted with [Carl's] version which held up

completely under cross[-]examination." For example, there was no genuine

question about whether Kathy kicked Carl in the neck. As the judge found,

Kathy asserted during her direct testimony that she kicked Carl in self-defense

but during cross-examination she acknowledged she kicked him out of

frustration. The judge also explained that while Kathy called numerous other

witnesses, and that those found credible did not corroborate Kathy's version,

other witnesses were either biased or gave testimony unworthy of being credited.

      Based on what came from credible witnesses, the judge determined that,

on the day in question, Carl approached Kathy to speak about their daughter's

well-being. Kathy was holding a phone and Carl admitted that he grabbed the

phone from her hand. But then, as the judge found, based on Carl's credible and

"vivid" description, Kathy

            threw an overhand closed fisted punch which did land
            on the side of [Carl's] face, . . . a hugely
            disproportionate response to [Carl's] grabbing of the
            cell phone.

Carl has a prosthetic leg, and the judge found that Kathy's foot then came into

contact with the back of Carl's knee, causing him to "tumble down the stairs."

She then "threw a high kick into his throat connecting with [the] left side of his

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neck," an act the judge found to be "purposeful . . . not reckless." The judge

rejected Kathy's testimony, which fizzled out on cross-examination, that the kick

was an act of self-defense.

      Later that same evening, Kathy telephoned Carl numerous times and –

according to the judge's findings, based on recordings made by Carl – Kathy was

"very aggressive" and at times "screaming" at Carl. During these calls, Kathy

admitted to punching Carl in the throat, and she called him, among other things,

"a jackass," "a psychopath," "a stupid mother[]fucker," and "a fuckin' piece of

shit." According to the judge, Kathy was "barely" able to contain her anger,

which "almost boil[ed] over in rage." Kathy also admitted during those calls

that after the fall down the stairs, she kicked him "the fuck back down."

      We need not go on. Based on this and other evidence found credible, the

judge found Kathy was the aggressor throughout these events.           The judge

concluded that Carl sustained his burden of proving the predicate acts of

harassment and assault and that Kathy failed to sustain her burden of proving

the predicate acts she alleged. The judge's view of the testimony and the

credibility of the witnesses commands our deference because the judge had the

opportunity to see and hear the witnesses testify, while we only have a transcript

to consider. See Cesare v. Cesare,  154 N.J. 394, 412 (1998).


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      Before entering a final restraining order (FRO) based on the predicate acts

of assault and harassment, the judge considered the second so-called Silver

factor, which requires a finding that an FRO is necessary "to protect the victim

from an immediate danger or to prevent further abuse." Silver v. Silver,  387 N.J. Super. 112, 127 (App. Div. 2006) (relying on  N.J.S.A. 2C:25-29(a) and

(b)). Judge Gramiccioni correctly observed that when the proven predicate act

is a physical assault, like the assault here, the presence of the second factor is

self-evident, ibid. (recognizing that this factor "is most often perfunctory and

self-evident"); see also A.M.C. v. P.B.,  447 N.J. Super. 402, 414 (App. Div.

2016). But the judge also credited evidence that Kathy had been violent toward

Carl in the past in concluding an FRO was needed to prevent further abuse.

      Based on these and other findings, the judge entered an FRO in Carl's

favor and dismissed Kathy's complaint. In later proceedings, the judge awarded

Carl $16,286.67 in counsel fees.

      In appealing the FRO and the counsel fee order,1 Kathy argues that: (1)

the trial judge's "findings of credibility are not entitled to deference"; (2) the

judge erred by admitting "the photograph of [Carl] and the partial recordings of


1
  Kathy does not argue that the judge erred in dismissing her complaint but,
even if she were, we would find such an argument lacking in sufficient merit to
warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
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telephone conversations" between Carl and Kathy; (3) "the evidence did not

support the issuance of an FRO" against Kathy; and (4) if the FRO is affirmed,

"the amount of the attorney's fees awarded is excessive." We find insufficient

merit in Kathy's first and third arguments to warrant further discussion in this

opinion. R. 2:11-3(e)(1)(E). We reject her fourth argument about counsel fees

substantially for the reasons set forth in Judge Gramiccioni's written opinion on

that subject.

      We also find no merit in Kathy's second argument. Kathy contends that a

photograph – offered to show the marks on Carl's neck caused by her kick – was

not adequately authenticated. She argues that "[t]he photograph is not the

original" and there is "no indication of the date the photograph was taken." Her

argument misapprehends the guiding standards.

      The proponent of a photograph must make a prima facie showing of its

authenticity, State v. Joseph,  426 N.J. Super. 204, 220 (App. Div. 2012), a

burden "not designed to be onerous," State v. Hockett,  443 N.J. Super. 605, 613

(App. Div. 2016). It is enough if the record contains sufficient evidence to

support the claim that the photograph depicts "what its proponent claims."

N.J.R.E. 901. Carl testified that the image offered into evidence was taken on

August 6, 2019, and that it depicted the injuries to his neck caused by Kathy's


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kick.    Based on this testimony alone, the judge was entitled to admit the

photograph and, in considering her ruling, we find no abuse of discretion. See

Brenman v. Demello,  191 N.J. 18, 31 (2007). Indeed, the admission of the

photograph – even if we could somehow assume the judge erred in admitting it

– caused no harm or prejudice because, as Kathy acknowledges in her appeal

brief, she had admitted that "she kicked [Carl's] neck."

        Kathy also argues that the audio recordings captured by Carl of her later

phone calls – the content of which we have briefly alluded – should not have

been admitted because she believes that they too were not properly authenticated

and were incomplete. Much has been written about the admissibility of audio

recordings in criminal matters and the multi-part test devised by the Court in

State v. Driver,  38 N.J. 255, 287 (1962), but even in criminal matters the test is

not so rigid as to preclude the admission of audio recordings even when they are

incomplete or partially inaudible, see State v. Nantambu,  221 N.J. 390, 404-11

(2015). Kathy did not deny at the hearing that it was her voice on the recordings,

and she did not argue that the recordings were altered, only that what Carl

presented was incomplete. We reject that contention.

        Kathy argues in this court that the judge admitted "partial recordings."

That's not accurate. What the record reveals is that, at the outset of the hearing,


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Carl offered selected portions of the phone calls he recorded. When Kathy's

counsel objected to their completeness, Carl then produced all his recordings,

which were played for the court during the thorough voir dire. Notwithstanding

that full turnover, Kathy's counsel continued to press the objection at the hearing

that the recordings were incomplete, but this was based only on the fact that, as

Carl testified, he did not immediately start recording one conversation until ten

minutes elapsed. That circumstance doesn't make the recordings incomplete. It

just means the complete recording did not contain the complete conversation.

The trial judge soundly admitted into evidence only the complete version, not

the edited portions offered earlier in the proceedings.

      To the extent Kathy's argument at the hearing about admission of the

recordings had any substance at all, it only went to the weight of the recorded

evidence, not its admissibility. We find no abuse of discretion.

      Affirmed.




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