E.A.O v. S.A.O

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                                NOT FOR PUBLICATION WITHOUT THE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-3490-18T2
E.A.O.,

          Plaintiff-Respondent,

v.

S.A.O.,

     Defendant-Appellant.1
_____________________________

                   Argued March 10, 2020 – Decided April 28, 2020

                   Before Judges Messano and Ostrer.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Burlington County,
                   Docket No. FV-03-1367-19.

                   Ted M. Rosenberg argued the cause for appellant.

                   Abigail Cook, admitted pursuant to Rule 1:21-3(b),
                   argued the cause for respondent (Rutgers Domestic
                   Violence Clinic, Rutgers Law, attorneys; Denise Marie
                   Higgins, Staff Attorney, of counsel; Hannah Lee,
                   admitted pursuant to Rule 1:21-3(b), on the brief).



1
     We use initials to maintain the confidentiality of the parties. R. 1:38-3(d)(9).
PER CURIAM

      Following a two-day hearing, the Family Part judge entered a final

restraining order (FRO) in favor of plaintiff against defendant, her husband,

pursuant to the Prevention of Domestic Violence Act,  N.J.S.A. 2C:25-17 to -35

(the PDVA). The judge concluded defendant committed harassment,  N.J.S.A.

2C:33-4, a predicate act of domestic violence, and that issuance of an FRO was

necessary for plaintiff's protection. See Silver v. Silver,  387 N.J. Super. 112,

126 (App. Div. 2006) ("The second inquiry, upon a finding of the commission

of a predicate act of domestic violence, is whether the court should enter a

restraining order that provides protection for the victim.").

      Defendant appeals, arguing the judge failed to specifically find or

conclude that defendant's conduct was accompanied by an "intent to alarm or

seriously annoy" plaintiff, an essential element of harassment under  N.J.S.A.

2C:33-4(c). Defendant also argues the judge mistakenly exercised his discretion

in crediting plaintiff's testimony over defendant's; and in excluding from

evidence for impeachment purposes an audio recording of a conversation

between plaintiff and defendant. Lastly, defendant contends the judge failed to

properly analyze the evidence under the second Silver prong. Defendant urges

us to reverse and remand the matter for a "rehearing" before a different judge.


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      We have considered these arguments in light of the record and applicable

legal standards. We conclude the judge failed to make adequate findings of fact

and conclusions of law. We reverse and remand for a new hearing before a

different judge.

                                       I.

      On February 19, 2019, both parties filed domestic violence complaints.2

Defendant filed first by minutes, alleging plaintiff harassed him. He described

several events that allegedly occurred during the month of January, as well as

plaintiff's February 15 departure from the couple's home with their three

children without prior notice.3

      Plaintiff's complaint also alleged harassment and centered primarily on

events of February 11 through February 15. Additionally, plaintiff provided a

detailed and voluminous statement about events that allegedly demonstrated a

prior history of domestic violence during the marriage. Significantly, plaintiff

alleged that defendant had sexually assaulted her on several occasions.


2
  For reasons unexplained by the record, temporary restraining orders (TROs)
were not entered until March 12, 2019, by the same judge who was the trial
judge.
3
  Defendant also described various events over the years that demonstrated a
"prior history of domestic violence." We need not discuss them here because
they are unimportant to our decision.
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      Defendant testified first at trial, described the allegations made in his

complaint, and introduced text messages between himself and plaintiff that, he

claimed, demonstrated his caring concern for his wife. Defendant denied that

he ever sexually assaulted plaintiff and, instead, claimed that plaintiff was

purposely denying him sexual relations.      Defendant said that early in the

morning of February 14, he drove plaintiff's car to work because his car was

being repaired. Plaintiff texted him, demanding he return her car, and he drove

home, albeit sometime later. When he arrived home, plaintiff was angry and got

into the car to leave with the couple's infant son. Defendant had no idea where

plaintiff was going, and so he "tapped" on the window and asked. Plaintiff

refused to answer and drove away. Defendant claimed that the following day,

he went to work in the morning and returned home to find plaintiff and the three

children gone without explanation.

      Plaintiff's testimony described in general terms defendant's controlling

behavior leading up to her February 15 departure with the children. She said

that on February 13, having decided to leave and go to a shelter with the

children, she went to her neighbor's house to see if the neighbor would care for

plaintiff's cat. However, defendant followed her to the neighbor's home, and




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plaintiff was unable to make the request. Plaintiff claimed defendant always

wanted to know where she was and what she was doing.

        Plaintiff had been sleeping separately from defendant in her daughter's

room. When she awoke on the morning of February 14, her car was gone. She

texted defendant because she needed the car to run an errand, but defendant did

not return for a couple hours. When he did, plaintiff exited the house with her

infant son and entered the car, but defendant tried to block her from leaving and

demanded to know where she was going. According to plaintiff, defendant was

banging on the car window and screaming at her. She was frightened.

        Plaintiff eventually ran her errand — a trip to a mechanic — but was

unable to use her credit card to pay the bill. She texted defendant for information

about the account, but he refused to provide her any. Instead, defendant texted

her back sometime later, saying that he had resolved the problem. The mechanic

confirmed receipt of payment. Plaintiff testified that she had no credit cards in

her own name and was not on a joint bank account with defendant. She claimed

that defendant insisted on approving all her purchases. On February 15, after

defendant left for work, plaintiff gathered the parties' three children and left for

the shelter, which is where they still resided at the time of trial in mid-March

2019.


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      Plaintiff recounted in detail several sexual assaults defendant allegedly

committed. She described how on more than one occasion she awoke from sleep

to find defendant engaged in intercourse with her. During cross-examination,

plaintiff testified that she had no sexual relations with defendant during the prior

year. Defense counsel wished to confront her with an audio recording defendant

surreptitiously made with his phone, in which, counsel proffered, plaintiff

admitted or implied that she had sex with defendant in January. Because the

recording was twenty-five minutes long, the judge took a break and told counsel

to "listen to it[,]" and then he would consider argument.

      The record reflects that proceedings resumed approximately thirteen

minutes later, before both attorneys had a chance to listen to the entire recording,

and, according to defense counsel, before they "g[o]t to the part." Refusing to

listen to "[twenty-five] minutes worth of stuff," the judge asked defense counsel

for a proffer.    Essentially, counsel claimed that during the conversation

defendant referenced a certain night in January, and plaintiff said, "Don't even

bring that up. Everyone has needs."

      The judge said he understood and instructed defense counsel to continue

his cross-examination, offering the following explanation:




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              Judge: . . . And just so the record's clear, . . . the
              allegations of whatever happened or didn't happen in
              January are not part of the predicate act.

              Defense counsel: I understand . . . .

              Judge: . . . [I]t just goes to the weight of the history.
              So that's why I don't want to spend a lot of time on that
              particular issue.

              Defense counsel: Okay. Thank you, Judge.

              Judge: But you made your point.

       The judge rendered an oral decision following testimony. He found that

defendant's allegations were evidence of "marital contretemps rather than a

criminal harassment." See, e.g., Corrente v. Corrente,  281 N.J. Super. 243, 250

(App. Div. 1995) (noting the PDVA "was intended to address matters of

consequence, not ordinary domestic contretemps"). He opined that the parties'

unhappy relationship signaled the likelihood of a divorce complaint being soon

filed. The judge concluded defendant failed to meet "his burden as to showing

a predicate act[,]" and dismissed defendant's complaint. 4

       Turning to plaintiff's allegations, the judge focused on the events in

February and found no "particular incident" committed by defendant "was

criminal harassment." However, the judge found defendant engaged in a "course


4
    Defendant has not appealed the dismissal of his complaint.
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of conduct . . . controlling of both [plaintiff's] whereabouts[,] as well as the

finances." Citing the frequency of defendant's text messaging of plaintiff, which

the judge described as "mostly innocuous," he nevertheless expressed concern

"that [plaintiff] presents as a victim of domestic violence under the cycle." As

to plaintiff's allegations of sexual assault, the judge specifically eschewed

making any findings, stating, "It's not part of the predicate act, so it's not

necessary for me to do so. . . . I don't find anything happened one way or the

other as to those allegations."

      Citing plaintiff's credible testimony "as to what she's endured during the

course of the marriage[,]" the judge found "she does present as a domestic

violence victim who's been controlled by the defendant." As to the events of

February 14, "where [defendant] essentially tried to stop [plaintiff] from

leaving," the judge found this was "further evidence of the fact . . . that he was

trying to control and keep her within the relationship." The judge found plaintiff

"met her burden as to showing that a criminal harassment has occurred." After

making a cursory statement regarding the second Silver prong, the judge entered

the FRO, and this appeal followed.




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                                        II.

      "The scope of appellate review of a trial court's fact-finding function is

limited. 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) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co.

of Am.,  65 N.J. 474, 484 (1974)). "We defer to the credibility determinations

made by the trial court because the trial judge 'hears the case, sees and observes

the witnesses, and hears them testify,' affording it 'a better perspective than a

reviewing court in evaluating the veracity of a witness.'" Gnall v. Gnall,  222 N.J. 414, 428 (2015) (quoting Cesare,  154 N.J. at 412). Moreover, "[b]ecause

of the family courts' special jurisdiction and expertise in family matters,

appellate courts should accord deference to family court factfinding." Cesare,

 154 N.J. at 413. However, we do not defer to the judge's legal conclusions if

"based upon a misunderstanding of . . . applicable legal principles." T.M.S. v.

W.C.P.,  450 N.J. Super. 499, 502 (App. Div. 2017) (quoting N.T.B. v. D.D.B.,

 442 N.J. Super. 205, 215 (App. Div. 2015)).

      A person is guilty of harassment if,

            with purpose to harass another, he:

            a. Makes, or causes to be made, a communication or
            communications anonymously or at extremely

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            inconvenient hours, or in offensively coarse language,
            or any other manner likely to cause annoyance or alarm;

            b. Subjects another to striking, kicking, shoving, or
            other offensive touching, or threatens to do so; or

            c. Engages 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.]

Although the judge did not specify what subsection of the "statue" applied, we

conclude his reference to defendant's "course of conduct" means the judge

considered the testimony under subsection (c).

      Section (c) of  N.J.S.A. 2C:33-4 "proscribes a course of alarming conduct

or repeated acts with a purpose to alarm or seriously annoy an intended victim."

State v. Hoffman,  149 N.J. 564, 580 (1997); see also, Peranio v. Peranio,  280 N.J. Super. 47, 55 (App. Div. 1995) ("Integral to a finding of harassment under

 N.J.S.A. 2C:33-4(c) is the establishment of the purpose to harass, along with a

course of alarming conduct or repeated acts intended to alarm or seriously annoy

another[.]" (citation omitted)) "'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) (quoting Hoffman,  149 N.J. at 577).




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      "A history of domestic violence may serve to give content to otherwise

ambiguous behavior and support entry of a restraining order." J.D. v. M.D.F.,

 207 N.J. 458, 483 (2011). Nevertheless, the Court has cautioned trial judges

when considering allegations of harassment under subsection (c).

            Although a purpose to harass can be inferred from a
            history between the parties, that finding must be
            supported by some evidence that the actor's conscious
            object was to alarm or annoy; mere awareness that
            someone might be alarmed or annoyed is insufficient.
            The victim's subjective reaction alone will not suffice;
            there must be evidence of the improper purpose.
            Moreover, when evaluating whether an individual acted
            with the requisite purpose, our courts must be
            especially vigilant in cases involving, as do many
            domestic violence disputes, the interactions of a couple
            in the midst of a breakup of a relationship.

            [Id. at 487 (emphasis added) (citations omitted).]

      Here, the judge recognized ongoing marital disharmony in this family

culminating in the events of February 15, 2019, and found that "no . . . particular

incident" amounted to harassment. He never specifically determined which acts

or incidents comprised defendant's "course of conduct" in violation of

subsection (c). Instead, the judge expressed a general feeling that defendant was

exerting control over plaintiff, who the judge concluded was trapped in a cycle

of domestic violence. We do not minimize the judge's concerns nor necessarily

question his assessment. However, a judge is required to make specific findings

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of fact and state his or her conclusions of law. R. 1:7-4(a); Strahan v. Strahan,

 402 N.J. Super. 298, 310 (App. Div. 2008).

      Most importantly, the judge never found that defendant acted with the

conscious object to alarm or seriously annoy plaintiff.        Perhaps we could

conclude this was implicit had the judge made explicit findings regarding

plaintiff's allegations of prior domestic violence, most notably and seriously, her

assertions that defendant repeatedly sexually assaulted her. However, the judge

elected not to make any findings at all about those allegations.

      Although our standard of review is generally limited, where inadequate

factual findings are made or where issues are not addressed, we are constrained

to vacate the FRO and remand for further proceedings. Elrom v. Elrom,  439 N.J. Super. 424, 443 (App. Div. 2015). The TRO shall remain in place until the

remand hearing is completed. Because the judge made credibility findings, we

order that a different judge conduct the rehearing. See, e.g., R.L. v. Voytac,  199 N.J. 285, 306 (2009) ("Because the trial court previously made credibility

findings, we deem it appropriate that the matter be assigned to a different trial

court.").

      Lastly, we do not know what evidence may be adduced on remand, and,

therefore, we cannot say with assurance that the audio recording defendant


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proffered at trial should be admitted into evidence at the rehearing. We leave

that decision to the sound discretion of the remand judge.

      Reversed and remanded. We do not retain jurisdiction.




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