E.P v. A.P

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4309-17T1

E.P.,

Plaintiff-Respondent,

A.P.,

Defendant-Appellant.
________________________

Submitted March 2, 2020 – Decided March 19, 2020

Before Judges Vernoia and Susswein.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FV-07-2441-18.

Robert J. De Groot, attorneys for appellant (Robert J.
De Groot, of counsel; Oleg Nekritin, on the brief).

Jacobs Berger, LLC, attorneys for respondent (Amy L.
Miller, of counsel and on the brief; Jamie N. Berger, on
the brief).

PER CURIAM
Defendant A.P.1 appeals from an April 11, 2018 final restraining order

(FRO) entered in favor of his estranged wife, plaintiff E.P., pursuant to the

Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17

to -35. We affirm.

Plaintiff and defendant married in 1978. On March 11, 2018, plaintiff

filed a complaint seeking a temporary domestic violence restraining order

(TRO) against defendant, claiming he committed the predicate act of harassment

in violation of N.J.S.A. 2C:33-4. A municipal court judge entered the TRO,

which in pertinent part barred defendant from the marital home and from having

any contact with the parties' adult daughters K.P. and M.P. (Mary); K.P.'s seven-

year-old son J.P.; and plaintiff's sixty-year-old developmentally disabled

brother, C.S., all of whom reside in the marital home. The TRO also barred

defendant from any contact with the parties' adult son, M.P. (Mark), who does

not reside in the marital home.

1
We use initials and pseudonyms to identify the parties and their family
members and to protect from disclosure domestic violence records and the name
of a domestic violence victim that are excluded from public access under Rule
1:38-3(d)(9) and (10).
A-4309-17T1
2
The next day, plaintiff filed an amended complaint seeking a TRO and

alleging defendant also committed the predicate acts of criminal mischief,

N.J.S.A. 2C:17-3, and terroristic threats, N.J.S.A. 2C:12-3. The municipal court

judge issued an amended TRO granting the identical relief ordered in the

original TRO.

During the one-day trial on plaintiff's request for an FRO, plaintiff

testified on her own behalf and called Mary and Mark as witnesses. Defendant

also testified. During plaintiff's testimony, audio recordings from conversations

between plaintiff and defendant were played and transcribed into the trial record.

In addition, the parties introduced photographs and other documentary exhibits

into evidence.

The trial record established that following plaintiff's filing of a complaint

for divorce in September 2017, the parties' relationship worsened, and defendant

engaged in daily yelling, cursing, and verbal threats against plaintiff and the

other family members residing in the marital home. Plaintiff testified she and

her daughters began recording defendant's statements as a means of "self-

preservation" when "anything started to get volatile." Mary testified she began

recording defendant in December 2017 because his conduct was "scary."

A-4309-17T1
3
During a December 16, 2017 recorded telephone conversation with

plaintiff, defendant made threats after demanding that Mary move out of the

marital home:

Plaintiff: They left.

Defendant: Fucking gets out of my fucking house, my
car, or I'll fuck you alls out of that fucking
house. I'll come up there right now - -
(indiscernible) - - that fucking house. Do
you understand where I'm coming - -
(indiscernible). Get her the fuck out
motherfucker. Do you hear me?

Plaintiff: I hear you, []. You're going off - -

Defendant: (indiscernible) - - I swear to god I'm going
- - (indiscernible) - - I'll - - I'll crack you
alls by your fucking necks and throw you
the fuck out. You understand what I'm
telling you? Get her the fuck out of my
house. That's my fucking house. You
better tell her to pack her bags and get out
before I come over there.

[(Emphasis added).]

During a January 12, 2018 conversation at the marital home, defendant

called plaintiff names and threatened her in the presence of their grandchild,

J.P.:

Defendant: Let me tell you something you piece of
fucking shit. (Indiscernible) - - that shit.
(Indiscernible) - - I didn't touch that

A-4309-17T1
4
fucking woman. Do you hear what I tell
you? I didn't fucking touch that woman.
You motherfucker.

Plaintiff: I have to take [J.P.] - -

Defendant: Say it one more time.

Plaintiff: - - to school.

Defendant: Say it one more fucking time.

Plaintiff: I have to bring the kid to school.

Defendant: One more time say it.

Plaintiff: You stop now.

Defendant: You motherfucker.

Plaintiff: (indiscernible)

Defendant: You accuse me of shit I didn't do. What
about when you cheated on me, it's okay?
I'm supposed to forget that?

Plaintiff: I'm trying not to. I got to get the - -

Defendant: I'm supposed to forget you cheated on me?
If I had known half the shit before I married
you, I would have never married you. I'm
married 40 years of my fucking life down
the fucking drain because of you.

Plaintiff: Stop.

Defendant: And them shit fucking kids you raised. I
swear I'm going to kill. The rest of my life

A-4309-17T1
5
I don't give a fuck. Now I know how
people kill their fucking - - fucking
families.

Moments later, defendant and plaintiff had the following exchange:

Plaintiff: Please leave. I have to take [J.P.] to school.
He's going to be late. And he hears all this
yelling. Stop.

Defendant: No. It's your fault. You're ruining things.

Plaintiff: I didn't even say - -

Defendant: You've destroyed us. The whole family
you've destroyed. You fucking destroyed
my whole life and my family. I got to kill
for that. I have to or I can't live with myself
no more.

[(Emphasis added).]

A few weeks later, on February 20, 2018, defendant threatened plaintiff

again:

Defendant: (indiscernible) - - stop.

Plaintiff: Stop.

Defendant: I'm tired of you.

Plaintiff: [] - -

Defendant: What you're - -

Plaintiff: - - would you - -

A-4309-17T1
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Defendant: - - doing to me.

Plaintiff: - - just stop - - (indiscernible). Stop it.

Defendant: What you're doing to me. What you're
doing to me you motherfucker.

[Unidentified Speaker]: She's not doing anything. Get
out, Daddy.

Plaintiff: Stop. Stop.

Defendant: Destroying our family. You're destroying
my kids.

[Unidentified Speaker]: Daddy, - -

Defendant: Now you're going to destroy my fucking
grandchildren.

Plaintiff: Stop.

[Unidentified Speaker]: She's not doing anything.

Plaintiff: Stop.

[Unidentified Speaker]: Just go, [D]ad.

Plaintiff: Stop.

Defendant: I'm going to cut your fucking throat.

[Unidentified Speaker]: That's not - -

Defendant: I want to go to jail for killing - -
(indiscernible)

A-4309-17T1
7
[Unidentified Speaker]: That's not helping. Well, then
that's what you're going to do
--

Defendant: I'm going to go to jail for kill - -
(indiscernible) - - what you did to me - -

Plaintiff: (indiscernible)

Defendant: - - after 40 years - -

[Unidentified Speaker]: Daddy, you got to stop - -
(indiscernible) - -

Defendant: And what you're doing to me is a fucking
disgrace for nothing.

[Unidentified Speaker]: Stop.

Defendant: For nothing. I never touched that fucking
- - (indiscernible). I never fucking had sex
with her. Fuck you. Fuck you, mother.
And fuck your fucking dead sister. You're
going to push me. I'm going to - -

Plaintiff: I am not pushing - -

Defendant: - - put a gun to your fucking head - -

[Unidentified Speaker]: Enough.

Defendant: - - and I'm going - -

[Unidentified Speaker]: Enough.

Defendant: - - to jail.

[Unidentified Speaker]: Enough.

A-4309-17T1
8
Defendant: Now fuck you.

Plaintiff: (indiscernible)

[Unidentified Speaker]: That's - - that's enough.

Defendant: Ain't that fucking great. You're getting it.

Plaintiff: (indiscernible). I am done with this. I've
had - - (indiscernible). Just leave.

Defendant: (indiscernible) - - embarrassing in front of
her sister.

[Unidentified Speaker]: (indiscernible)

Plaintiff: (indiscernible)

Defendant: I'm tired of you accusing me I never said I
didn't do.

Plaintiff: Stop.

[Unidentified Speaker]: This - - you know what, you
have to - - you have to just
leave right now. Just go.

Defendant: No.

[Unidentified Speaker]: Wherever you're going go.

Defendant: You think - -

[Unidentified Speaker]: Just go.

Defendant: - - you're going to take - -

A-4309-17T1
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[Unidentified Speaker]: She's not doing anything. She
--
Plaintiff: (indiscernible)

[Unidentified Speaker]: (indiscernible)

Defendant: She destroyed our family.

[Unidentified Speaker]: She's just - - (indiscernible).

Defendant: No. She's not done nothing. She destroyed
our fucking family over nothing.

[Unidentified Speaker]: I can't do it no more.

Defendant: Over nothing. Look at all this because of
me.

[Unidentified Speaker]: (indiscernible) - - just go.

Defendant: She destroyed my family. And trying to
take everything I fucking have from my - -

Plaintiff: I don't want anything - -

Defendant: - - fucking home.

Plaintiff: - - from you.

Defendant: (indiscernible) - - to stop this fucking - -
(indiscernible).

[Unidentified Speaker]: Go, go, go. You - -

Defendant: (indiscernible) - -

[Unidentified Speaker]: - - please just - -

A-4309-17T1
10
Defendant: (indiscernible) - - stop.

[Unidentified Speaker]: - - walk out the door.

Defendant: You cock sucking motherfucker.

[Unidentified Speaker]: Walk out the door, please.

Defendant: I've had it with you.

Plaintiff: Okay.

....

Defendant: We were doing fine, you motherfucker.
We were doing okay until you started this.

Plaintiff: [], stop.

Defendant: Until you started this you, motherfucker.
Now you got to force me to go live with
people that I don't want to fucking live
with. You dirty fucking whore. I can't go
on my own, so I got to go with somebody.
And you're forcing me to go with
somebody I don't want to live with. You
dirty whore. You have no idea what you're
doing. Because you're a greedy, selfish
motherfucker.

Plaintiff: It's not about money. I don't - - and not
with money, [].

Defendant: You're a greedy - - (indiscernible) - - the
motherfucker.

Plaintiff: (indiscernible) - - [].

A-4309-17T1
11
Defendant: Where's my ring?
Plaintiff: What ring?

Defendant: Where's my fucking ring? [It] came off my
finger.

Plaintiff: Go look that way.

Defendant: You fucking whore. What you did to me
after 40 - - I gave your retarded brother a
fucking home. Nobody would do that. No
fucking body would do that. I took you out
of the gutter you motherfucker. Gave you
homes, gave you every fucking thing. Gave
you three fucking kids. Took your brother
in when your sister-in-law and your fucking
brother didn't even want him.

Plaintiff: (indiscernible). I can't argue with him
anymore. (indiscernible)

Defendant: Dirty fucking whore what you're doing to
me. You don't think I ain't going to kill
you.

[Unidentified Speaker]: You have to do it now. I
understand but we're doing it
today. You're going today - -
(indiscernible)

Defendant: You fucking accuse me of something I
didn't do and then filing for a divorce from
me. I wish I could have fucked her. I really
do. And if I did, she wasn't the one to
worry about. (indiscernible) - - was the one
you should have fucking worried about. I
have no desire to have sex with any of
them. You fucking bitch. Look what

A-4309-17T1
12
you're doing to me. Look what you're
doing. I'm down to 180 fucking pounds.
Look what you're doing to me, you
motherfucker. My cancer is back. I don't
have long to live. So you think I'm going
to let you get away with this shit? I'm
lucky if I got one fucking year left you
cocksucker.

[(Emphasis added).]

On March 5, 2018, the parties appeared in a court proceeding in their

pending matrimonial action. Plaintiff testified that the next day, defendant made

threats to her related to those proceedings. In a recorded conversation on March

6, 2018, defendant told plaintiff:

I'll move out. You give me a few bucks.
It's all fucking over. That's what she'll tell
you. If not, your son goes down the drain.

Later the same day, defendant threatened plaintiff and the children again:

Plaintiff: Oh, man.

Defendant: Either you drop - -

Plaintiff: I--

Defendant: - - this shit - -

Plaintiff: Stop - -

Defendant: - - or your fucking kids are dead. They're
gone. Their careers are fucking shot.

A-4309-17T1
13
[(Emphasis added).]

In addition to the recorded conversations, plaintiff, Mary, and Mark

testified concerning a March 5, 2018 incident that occurred at the marital home

following the court proceeding in the matrimonial action. After plaintiff and

Mary left the proceeding, Mary was unable to reach K.P., whom Mary expected

to be available at home. Concerned she could not reach K.P., Mary called Mark,

who was employed as a police officer in the municipality where the home was

located. He said he would stop by the home to check on K.P.

Plaintiff and Mary arrived at the home at the same time as Mark. Plaintiff

remained in her vehicle, while Mary and Mark entered the home. Mary and

Mark testified that when they entered the home, defendant screamed and cursed

at Mark and told him to leave the house. Mary testified defendant also began

yelling at plaintiff's disabled brother, C.S. According to Mary, defendant

screamed they should "get that handicapped idiot motherfucker out of my house.

He can't live here anymore." Mary and Mark testified defendant left C.S.'s room

and attempted to return, but Mary was in the way. They testified defendant

grabbed Mary and pushed her aside.

They further testified Mark and K.P. stepped in defendant's path to block

him from C.S.'s room, and defendant fell. Mark called the police. They

A-4309-17T1
14
responded, and Mark left the home. Defendant also left the home for a brief

period, but he returned that evening. According to plaintiff, defendant was

upset, threw her clothes around the bedroom and into another room, threw coffee

and food, and screamed at her to "pack [her] shit and get out." Plaintiff testified

defendant's behavior continued into the early morning hours, and, out of fear,

she spent the night with Mary and J.P. in a locked bedroom. At trial, plaintiff

described five photographs admitted in evidence that depicted the food, coffee,

and clothing strewn by defendant, as well as damage to plaintiff's dresser and

bedroom door jamb caused by defendant during the incident.

Plaintiff also described a photograph admitted in evidence showing

damage to a kitchen pantry door. Plaintiff testified that during an argument on

March 11, 2018, defendant "bang[ed] on the door to where he – he broke – [the]

top." Plaintiff then called the police and filed her initial complaint requesting

the TRO.

Defendant testified his statements and conduct were the result of "months

and months" of plaintiff's and the children's provocation, harassment, and

torment. He asserted plaintiff made false claims he had affairs; called him

names; spit on him; threw urine at him; taunted him; and, as a result, he

"exploded." He explained he had been employed in law enforcement for forty

A-4309-17T1
15
years and was undergoing cancer treatment. He acknowledged that on the

recordings he "sounds like . . . a mad man," but said that was "not [him]" and he

"never spoke like that. Not until . . . the torment started." He denied he would

ever harm plaintiff or his children.

The parties stipulated defendant possessed in the home nine guns; one

bayonet; six knives; six ammunition magazines; and 570 rounds of various

caliber ammunition. The guns were seized following entry of the TRO.

The judge rendered an opinion from the bench, addressing each prong of

the dual-element standard for the issuance of an FRO set forth in Silver v. Silver,

387 N.J. Super. 112 (App. Div. 2006). The court considered whether plaintiff

proved by a preponderance of the credible evidence that defendant committed

one or more of the predicate acts constituting domestic violence under N.J.S.A.

2C:25-19(a), id. at 125, and whether an FRO was required to protect plaintiff

from future acts or threats of violence, id. at 126.

The court made findings concerning the manner in which plaintiff, Mary,

and Mark testified, their demeanors, and the content of their testimony; and it

determined they were credible witnesses. The judge found plaintiff did not

sustain her burden of proving the predicate act of criminal mischief, but she did

prove by a preponderance of the evidence that defendant committed the

A-4309-17T1
16
predicate acts of harassment, N.J.S.A. 2C:33-4(a), and terroristic threats,

N.J.S.A. 2C:12-3.2 The court found defendant's statements—reflected in the

seven recorded conversations and including threats to kill plaintiff and the

children—were made for the purpose to harass and were made in a manner likely

to cause annoyance or alarm. See N.J.S.A. 2C:33-4(a). The court also

concluded plaintiff proved defendant committed the act of terroristic threats

because the totality of the circumstances—including defendant's anger; his

repeated threats to kill; his possession of, and access to, guns and knives; and

his statements implying he had nothing to lose if he killed plaintiff—provided a

reasonable basis to believe the immediacy and likelihood that the threats would

be carried out. See N.J.S.A. 2C:12-3(b).

The court also determined an FRO was required to protect plaintiff from

future acts of domestic violence. Relying on the totality of the circumstances

presented, and more particularly defendant's statements during the recorded

conversations, the court found plaintiff satisfied her burden of establishing an

FRO was required to prevent further acts of domestic violence.

2
Plaintiff does not cross-appeal from the court's finding she did not prove the
predicate act of criminal mischief.
A-4309-17T1
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The court entered the FRO. It barred defendant from returning to the

marital home, and from having any contact with plaintiff, Mary, Mark, K.P., J.P.

and C.S. This appeal followed.

II.

We are bound by the trial court's factual findings if they are "supported

by adequate, substantial, [and] credible evidence." Cesare v. Cesare, 154 N.J.
394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J.
474, 484 (1974)). Such deference is "especially appropriate when the evidence

is largely testimonial and involves questions of credibility." In re Return of

Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, a greater degree of

deference is to be accorded to the Family Part's factfinding because it possesses

"special jurisdiction and expertise in family matters." Cesare, 154 N.J. at 413.

We are not, however, bound by the judge's interpretations of the legal

consequences that flow from established facts. Manalapan Realty, LP v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Defendant does not dispute he made the statements attributed to him on

the recordings, or that he acted out of anger—indeed, he admitted his statements

and threats were made because he "exploded." Instead, he claims the court failed

to consider that plaintiff and the parties' children colluded to provoke his anger

A-4309-17T1
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and outbursts so they could remove him from the house. He also argues that ,

had the court correctly considered that plaintiff and the children acted to provoke

his threats and outbursts, it would have concluded they actually did not fear him,

and, therefore, there was no need for an FRO. We are not persuaded.

Defendant's claim the court did not consider that he was provoked by

plaintiff and the children is contradicted by the record. The judge addressed the

claim directly, stating that, although "defendant would want . . . the court to

find . . . there was some kind of extreme provocation that led to . . . what [was]

heard on the" recordings, there was no credible evidence supporting the

contention. Thus, the court did not fail to consider the claim; the claim was

considered and rejected because the court found no credible evidence supporting

it. We defer to the court's findings based on its credibility determinations,

Cesare, 154 N.J. at 411-12, and we discern no basis to reverse its findings of

fact. Those findings include a rejection of defendant's testimony he was

provoked by plaintiff and the children into committing the predicate acts of

domestic violence found by the court. 3

3
Because we determine there is no basis to reverse the court's determination
defendant failed to present credible evidence supporting his provocation claim,
we do not consider or address whether and under what circumstances, if any, the
commission of what would otherwise constitute a predicate act of domestic

A-4309-17T1
19
Defendant also argues the court violated his due process rights by barring

him from having contact with his three children; his grandson, J.P.; and his

brother-in-law, C.S. He argues the court barred him from communicating with

those individuals without permitting him to adequately cross-examine the adult

children about the threat he posed to them.

Ordinary due process protections apply in the domestic violence context.

H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2001). "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.'" Id. at 321-22 (quoting

McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)).

Additionally, a basic due process right of a party to a domestic violence case is

the opportunity to cross-examine the witnesses called by his or her adversary.

Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005).

The record does not support defendant's due process claim. In the first

instance, defendant was on notice prior to the trial that an FRO could be entered

barring his contact with the children, J.P., and C.S. The TRO barred him from

violence may be excused under the PDVA because it was in some manner
provoked. Nor do we address or suggest whether provocation might serve as a
defense to the issuance of a domestic violence restraining order under the
PDVA.
A-4309-17T1
20
having any contact with them, and from the marital home, where Mary, K.P.,

J.P., and C.S. lived. Moreover, N.J.S.A. 2C:25-29(b)(7) authorizes the issuance

of an FRO forbidding a defendant from communicating with the victim or other

family members where such communications are likely to cause annoyance or

alarm. Here, the evidence showed defendant threatened plaintiff and the parties'

children; engaged physically with Mary and Mark at the marital home; made

threats and engaged physically with Mary and Mark in front of six-year-old J.P;

and threatened developmentally disabled C.S. with removal from the home.

Defendant was also not denied due process by any decision of the court

barring him from cross-examining his children about the threat he posed to them.

Mark testified concerning defendant's conduct during the March 5, 2018

incident at the home, during which defendant pushed Mary aside and became

physical with Mark. Defendant's counsel cross-examined Mark without

restriction, and defendant does not point to any limitation on the cross -

examination of Mark about the threat defendant posed to him and their family

members.

Defendant's due process claim is founded solely on the cross-examination

of Mary, during which she described the March 5, 2018 incident at the home.

She testified defendant "aggressively walked towards [C.S.'s] room," and "put

A-4309-17T1
21
his hands on [her] shoulder and shoved [her] to the side." She explained Mark

stood in the way to C.S.'s room and "put his hands up" as defendant approached,

and defendant "stumble[d] back into the cabinet."

In response to Mary's description of the subsequent interaction between

defendant and Mark, defendant's counsel asked if there was force used. Mary

said there was force "on [defendant's] end," and defendant's counsel stated, "on

both ends." Plaintiff's counsel objected, asserting defendant's counsel's

statement was "argumentative." The judge agreed, saying there was prior

testimony about the interaction, Mary had not applied for an FRO, and counsel

could "move on." Defendant's counsel did not object or attempt to pursue any

further cross-examination concerning the force used by either defendant or Mark

during the incident. And defendant's counsel did not pose any questions to

which objections were made concerning Mary's, Mark's, or anyone else's

possible need for an order barring defendant from communicating with them.

To the contrary, Mary's testimony is replete with statements characterizing

defendant's behavior as "horrible," "threatening," "abusive," and "vile," with no

restrictions by the court on defendant's right to cross-examine her.

We do not find a due process violation in the court's suggestion the

defendant move on from an area of testimony—concerning the force used by

A-4309-17T1
22
defendant and Mark during the March 5, 2018 incident—about which both Mark

and Mary provided testimony. The court's suggestion was accepted without

objection, and defendant does not claim the court otherwise limited his ability

to question the witnesses about any issues relevant to plaintiff's request for the

FRO. Even if the court's suggestion constituted error, defendant makes no

showing it was clearly capable of producing an unjust result. R. 2:10-2. Indeed,

it was defendant's recorded threats to kill plaintiff and his family that supported

the court's finding an FRO was required to protect plaintiff from future acts of

violence and her family members, Mary, Mark, K.P., J.P., and C.S., from

communications likely to cause annoyance and alarm. See N.J.S.A. 2C:25-

29(b)(7).

Any of defendant's arguments we did not directly address are without

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

Affirmed.

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