Y.D v. M.H

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                                NOT FOR PUBLICATION WITHOUT THE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-3896-18T3

Y.D.,

          Plaintiff-Respondent,

v.

M.H.,

     Defendant-Appellant.
_________________________

                    Submitted December 16, 2020 – Decided January 29, 2021

                    Before Judges Accurso and Vernoia.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Hudson County,
                    Docket No. FV-09-1100-19.

                    Leslie A. Farber, attorney for appellant.

                    Ziegler, Zemsky & Resnick, attorneys for respondent
                    (Melissa B. Zemsky, on the brief).

PER CURIAM

          Following a trial, a Family Part judge entered a final restraining order in

favor of plaintiff Y.D. pursuant to the Prevention of Domestic Violence Act,
 N.J.S.A. 2C:25-17 to -35, based on findings that defendant M.H. committed the

predicate acts of harassment,  N.J.S.A. 2C:33-4, assault,  N.J.S.A. 2C:12-1(a),

stalking,  N.J.S.A. 2C:12-10(b) and terroristic threats,  N.J.S.A. 2C:12-3, during

a series of incidents between November 19, 2018, and November 24, 2018. 1

Defendant argues on appeal that there is insufficient credible evidence

supporting the court's findings of each of the predicate acts, and the court erred

by permitting plaintiff to reopen her case after defendant rested, admitting in

evidence an audio recording of a November 23, 2018 incident between the

parties and relying on the recording to support its decision.          We reject

defendant's contentions and affirm.

      Plaintiff and defendant had a fifteen-year romantic relationship, and they

share three children. Defendant is married and has three children with his wife.

On November 23, 2018, following a series of incidents between the parties

during the preceding weeks, plaintiff filed a complaint and obtained a temporary

domestic violence restraining order against defendant. Plaintiff amended the

complaint on two occasions and obtained two amended temporary restraining




1
   We use initials to identify the parties because the identity of a victim of
domestic violence and the identities of the parties in a domestic violence matter
are excluded from public access. R. 1:38-3(d)(9) and (10).
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orders. The final amended complaint alleged defendant committed the predicate

acts of harassment, terroristic threats, stalking, and assault.

      At trial, plaintiff and defendant provided conflicting versions of the

alleged domestic violence incidents. The parties' respective versions of some of

the events were either supported or contradicted by the testimony of other

witnesses. One of defendant's children testified in support of his version of some

of the events. We briefly summarize the testimony and evidence presented

concerning the separate incidents to provide context for our analysis of

defendant's arguments.

November 4, 2018

      Plaintiff testified she brought the parties' oldest child to her workplace on

November 4, 2018. While there, the child stole a phone plaintiff had sold to a

co-employee. After defendant picked up the child from plaintiff's workplace,

plaintiff realized the child had stolen the phone. She then called defendant, and

told him the child had the phone. According to plaintiff, defendant said he

would not return the phone until plaintiff gave him the phone's password.

Plaintiff surmised defendant asked the child to take the phone because he

believed plaintiff was seeing another man.




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      According to plaintiff, as she later drove home from work, she saw

defendant's parked car, and she stopped to retrieve the phone. She and defendant

then "scuffl[ed]" over the child returning the phone to plaintiff.

      Defendant testified he did not ask the child to take the phone and did not

ask plaintiff for the password. He testified that after plaintiff approached his

parked car, she slapped the child.

      Defendant recorded part of the parties' interaction at his vehicle. The

recording shows plaintiff called the police, and she reported defendant stole the

phone and would not return it. The police officer who arrived at the scene

testified that he did not observe any evidence of physical violence between the

parties and that defendant reported plaintiff abused the child. The officer did

not file charges against either party.

November 8, 2018

      Plaintiff testified that on November 8, 2018, defendant brought food to

her home, and he became upset because she refused to serve the food to him.

Plaintiff explained that defendant "got in [her] face," spit at her, and then left

her house.

      Defendant acknowledged he brought food to plaintiff's home. He denied

asking her to serve him, yelling at her, and spitting at her.


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                                          4 November 17, 2018

      Plaintiff testified that on November 17, 2018, defendant threatened to kill

her and their children, and also threatened to remove their children from her if

she did not take a polygraph exam. The purpose of the exam was to determine

whether plaintiff had "cheat[ed] on" defendant with another man. Plaintiff took

the polygraph exam in response to defendant's threats, but she never received

the results.

      Defendant denied threatening plaintiff if she did not take the polygraph

exam. He testified that plaintiff took the exam voluntarily and that he never

obtained the results or cared about them. He stated his only concern was

plaintiff's happiness.

November 19, 2018

      Plaintiff explained that on November 19, 2018, defendant was at her home

and "smacked" her on the face when she attempted to kiss him as he was about

to leave. She later sent a text message to defendant asking why he hit her, but

he did not respond. According to plaintiff, defendant later called and apologized

for hitting her.   At trial, defendant admitted going to plaintiff's home on

November 19, 2018, but he denied slapping her.




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      Defendant's father testified that he, defendant's mother, and defendant

went to plaintiff's home on November 19, 2018. He explained plaintiff and

defendant were never alone during the visit, and he did not see defendant slap

plaintiff or observe any marks on plaintiff's face.

November 22, 2018

      Plaintiff testified that on Thanksgiving, November 22, 2018, defendant

went to plaintiff's home, and she permitted him to enter her bedroom because he

said he wanted to speak with her. Once in the bedroom, defendant told plaintiff

that he apologized for slapping her three days earlier because he wanted to get

back into her home.     Plaintiff testified defendant said he felt like "slicing

[plaintiff's] throat, leaving [her] on the bed to die and bleed out,

and . . . mak[ing] it look like someone else did it."   Plaintiff said she was

"shock[ed]" by defendant's statement.       Defendant then attempted to kiss

plaintiff, and, when she resisted, he became angry and left her home.

      Defendant testified he went to plaintiff's home only to exchange vehicles

with her, and he never entered the home. He said he saw plaintiff only when

she opened the garage door for him, and that she had a bottle of an alcoholic

beverage in her hands. Defendant said he did not threaten plaintiff, and he did

not speak with her when she drank.


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        One of defendant's children testified she was with defendant when the

vehicles were exchanged, and she saw plaintiff with the bottle in her hands. The

child explained she did not go into plaintiff's home, and that defendant spoke

with plaintiff only over the phone when he asked plaintiff to open the garage

door.

November 19, 2018 through November 23, 2018 – Text Messages and Photos

        During the week of November 19, 2018, defendant sent plaintiff

photographs of plaintiff naked that plaintiff testified defendant took from

outside her home without her permission.       Defendant also sent plaintiff a

photograph of the male co-worker with whom defendant suspected plaintiff was

romantically involved. The photographs were accompanied by texts, such as

"He [t]alking to his pussy," "Aww you so [i]n love," and "Perfect couple."

        Plaintiff responded to the texts and photographs, sending text messages

stating, "Stop harassing me," "You are sick in the head," "You need a lot of

help," "I told you already I am not with anyone," "Why do you have pictures of

me naked," and "What is wrong with you." Plaintiff also texted, "[T]he fact that

you said that you will kill me by cutting my throat and leaving [me] on the bed

to die . . . How could you think like that[?] That scares me."




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      Defendant testified he took the photographs of plaintiff with her consent,

and he sent them simply to show them to her. He explained that he sent the

comments accompanying the texts because he did not know the man's record

and he was concerned for his children's safety.         Defendant testified he

"respect[ed]" plaintiff's relationship with her male co-worker, and defendant

denied he was jealous or otherwise concerned about the relationship.

November 23, 2018

      On November 23, 2018, plaintiff brought the parties' oldest child to work.

Plaintiff testified defendant appeared unexpectedly at her place of employment,

stood very close to her, and accused her of cheating on him. Plaintiff explained

she repeatedly asked defendant to leave, told him he was scaring her, and

advised him that he would get her fired. Plaintiff claimed she feared for her

safety, and, after she left work, she filed a complaint requesting a temporary

restraining order against defendant.

      Defendant testified he went to plaintiff's place of employment because she

told him they could speak there. Defendant said he was confused once he arrived

because plaintiff kept saying she was afraid of him, so he left. Defendant also

testified he never entered plaintiff's place of employment on that day.




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      During cross-examination of defendant, plaintiff's counsel sought to

introduce into evidence an audio recording of the November 23, 2018 incident

that plaintiff made on her phone.       The recording shows defendant accused

plaintiff of being unfaithful to him with another man, called plaintiff a

"prostitute," and accused her of "whoring herself out" to other men. Plaintiff

repeatedly asked defendant to leave her workplace, told defendant he was

scaring her, and explained that defendant would get her fired. The interaction

took place in front of the parties' oldest child, who can be heard on the recording .

      Defendant objected to the admission of the recording. The court sustained

the objection, finding there was an inadequate foundation for its admission

because defendant did not make the recording and the recording did not have a

time stamp. 2 November 24, 2018

      Plaintiff testified that on November 24, 2018, defendant went to plaintiff's

house because plaintiff had been ignoring his calls and texts. Plaintiff had

wrapped a phone cord around the handle of the door to her home to prevent

defendant from entering and so she could hear defendant if he attempted to enter.



2
  Plaintiff did not cross-appeal from the court's denial of her request to for admit
the recording in evidence.
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Defendant arrived, cut the wire, and entered the home.         Plaintiff testified

defendant entered her bedroom, "jumped on [her] and started choking [her],"

and said he owned her. Plaintiff screamed and tried to call 911, but defendant

took her phone from her. Eventually, plaintiff was able to dial 911 and, at that

point, defendant left.

      Defendant testified he went to plaintiff's home because they had agreed to

go shopping for a coat. When he arrived at the home, plaintiff did not answer

her phone or the door. Defendant explained that he was concerned about

plaintiff's safety, and when he entered the home, he saw a thin phone cord and

heard a popping noise when he pushed the door open. He also testified the cord

was cut when he opened the door. Defendant testified he checked on plaintiff

in her bedroom, and she started screaming and saying she had obtained a

restraining order against him. Defendant said he left the home after plaintiff

called the police.

Admission of The Audio Recording of The November 23, 2018 Incident

      After defendant completed the presentation of his case, plaintiff sought to

reopen her case to lay the proper foundation to admit in evidence the audio

recording of the November 23, 2018 incident at her workplace. Defendant

objected, but following plaintiff's testimony about the recording, the court


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admitted it in evidence for the purpose of rebutting defendant's testimony that

he was not inside plaintiff's place of employment that day.

The Court's Decision

      In its opinion from the bench, the court found plaintiff testified in a

consistent and credible manner, and the court accepted plaintiff's testimony as

truthful. The court explained that it rejected most of defendant's testimony

because he provided inconsistent versions about what occurred and why he acted

in the manner plaintiff described. The court also found defendant provided false

testimony about some issues, and, for that reason, the court concluded most of

defendant's other testimony was similarly false.

      The court also found defendant's suspicions about plaintiff's involvement

with another man became an issue between the parties beginning around

November 17, 2018. The court found defendant falsely testified he did not have

an issue with plaintiff seeing another man, and that his testimony was

undermined by other credible evidence.

      The court reviewed the separate incidents and found defendant committed

a predicate act of assault on November 19, 2018, when he slapped plaintiff in

the face while in her home.




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       The court also found defendant committed the predicate act of terroristic

threats on November 22, 2018, when he arrived at plaintiff's home uninvited and

threatened to slice her throat and leave her to bleed out. The court rejected as

not credible defendant's denial that he threatened to slice plaintiff's throat. In

part, the court reasoned plaintiff's text messages to defendant restating his threat

to her confirmed her testimony about the incident.

       The court also determined that defendant's sending of the naked photos of

plaintiff and the photos of the man defendant suspected plaintiff of seeing

constituted the predicate act of harassment. The court concluded the photos and

the texts were intended as a veiled threat to plaintiff that defendant would share

the photos with others if plaintiff did not end her relationship with the other

man.

       The court further determined that defendant's appearance at plaintiff's

workplace on November 23, 2018, and his statements and conduct during that

incident, constituted the predicate act of harassment. The court found defendant

did not, as he asserted, go to plaintiff's home on November 24, 2018, to check

on her. The court determined defendant went to plaintiff's home because she

would not respond to, or speak with, him, and defendant entered the home

knowing she did not want to see him.           The court concluded defendant's


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appearance at plaintiff's place of employment on November 23, 2018, and his

entry into her home on November 24, 2018, constituted the predicate act of

stalking, and that he committed an assault by choking plaintiff after entering her

home on November 24, 2018.

      The court also determined defendant presented an ongoing danger to

plaintiff and that a restraining order was required to protect plaintiff from future

acts of domestic violence. The court granted plaintiff's application for a final

restraining order. This appeal followed.

      Defendant offers the following arguments for our consideration.             He

contends the court erred in its credibility determinations, it ignored evidence

contradictory to plaintiff's version of the events, and its findings of fact are

unsupported by sufficient credible evidence. He also asserts the court erred by

allowing plaintiff to reopen her case, admitting into evidence the recording of

the November 23, 2018 incident at plaintiff's place of employment, and

considering the recording for reasons beyond those for which the court admitted

it into evidence.

      "We accord substantial deference to Family Part judges, who routinely

hear domestic violence cases and are 'specially trained to detect the difference

between domestic violence and more ordinary differences that arise between


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couples.'" C.C. v. J.A.H.,  463 N.J. Super. 419, 428 (App. Div. 2020) (quoting

J.D. v. M.D.F.,  207 N.J. 458, 482 (2011)).          "[D]eference is especially

appropriate 'when the evidence is largely testimonial and involves questions of

credibility.'" MacKinnon v. MacKinnon,  191 N.J. 240, 254 (2007) (quoting

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

      Generally, "findings by a trial court are binding on appeal when supported

by adequate, substantial, credible evidence." Gnall v. Gnall,  222 N.J. 414, 428

(2015). We will not disturb a trial court's factual findings unless "they are so

manifestly unsupported by or inconsistent with the competent, relevant [,] and

reasonably credible evidence as to offend the interests of justice." Cesare,  154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Invs. Ins.,  65 N.J. 474, 484

(1974)). We do not accord such deference to the court's legal conclusions, which

we review de novo. Thieme v. Aucoin-Thieme,  227 N.J. 269, 283 (2016).

      Measured against these standards, we find no merit to defendant's claims

that the court erred in making its credibility determinations and that there is

insufficient credible evidence supporting the court's findings of fact. The court

analyzed plaintiff's and defendant's respective testimony and evidence, and it

determined plaintiff offered a credible version of the events and defendant did

not. The court found plaintiff credible based on her demeanor, the consistency


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of her version of the events, and the text messages between the parties. The

court explained defendant was not credible based on his demeanor and because

he testified falsely. We acknowledge there was some limited testimony offered

by defendant's father and defendant's daughter that is inconsistent with

plaintiff's version of the events, but we reasonably infer based on the court's

express finding plaintiff's testimony was credible, that it determined any

inconsistent testimony or evidence was either incredible or otherwise

unpersuasive. We find no basis in the record to question the court's credibility

determinations, and we defer to them. Gnall,  222 N.J. at 428; MacKinnon,  191 N.J. at 254.

      Plaintiff's testimony and evidence, including the emails and photos,

provide ample support for the court's determination that defendant committed

the predicate acts of harassment, stalking, terroristic threats, and assault. 3

Indeed, defendant acknowledges in his brief on appeal that plaintiff's testimony

and evidence, if true, provide adequate support for the court's finding that

defendant committed the predicate acts of harassment, terroristic threats,



3
   The evidence also supports the court's finding a final restraining order was
required to protect plaintiff and prevent defendant from committing future acts
of domestic violence against plaintiff. See Silver v. Silver,  387 N.J. Super. 112,
126-27 (App. Div. 2006). Defendant does not argue otherwise.
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stalking, and assault. Because the court found plaintiff's testimony and evidence

credible, we therefore affirm the court's factual findings and legal conclusion

that defendant committed each of the predicate acts supporting the court's grant

of the final restraining order. Gnall,  222 N.J. at 428. Defendant's claim that the

court erred in finding plaintiff's testimony and evidence credible does not

warrant any further discussion in a written opinion. R. 2:11-3(e)(1)(E).

      We also reject defendant's claim that we should reverse the final

restraining order because the court erred by permitting plaintiff to "reopen" her

case, admitting the audio recording of the November 23, 2018 incident in

plaintiff's workplace, and relying on the recording for reasons other than that it

contradicted defendant's testimony that he never entered plaintiff's workplace.

      The decision to permit a party to reopen its case on the proofs or on

rebuttal rests within the sound discretion of the trial court. Magnet Res., Inc. v.

Summit MRI, Inc.,  318 N.J. Super. 275, 297 (App. Div. 1998); Healy v. Billias,

 17 N.J. Super. 119, 122 (App. Div. 1951). "An abuse of discretion 'arises when

a decision is "made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis."'" Pitney Bowes Bank,

Inc. v. ABC Caging Fulfillment,  440 N.J. Super. 378, 382 (App. Div. 2015)

(quoting Flagg v. Essex Cnty. Prosecutor,  171 N.J. 561, 571 (2002)).


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      We find no abuse of discretion in the court's decision to permit plaintiff

to reopen her case. The evidence was proffered to rebut defendant's testimony

that he did not enter plaintiff's workplace on November 23, 2018, and it

otherwise undermined his version of what occurred during the incident.

Contrary to defendant's assertion, the evidence was not cumulative, and it was

otherwise probative as impeachment and substantive evidence concerning what

occurred at plaintiff's workplace.     Cf. Casino Reinvestment Dev. Auth. v.

Lustgarten,  332 N.J. Super. 472, 497 (App. Div. 2000) (finding a court abused

its discretion by barring rebuttal evidence that "was neither cumulative nor

repetitive of testimony offered in plaintiff's case" and "both challenged and

contradicted testimony produced for the defense"); Wyatt ex rel. Caldwell v.

Wyatt,  217 N.J. Super. 580, 590 (App. Div. 1987) (reversing a trial court's order

barring proffered rebuttal impeachment and substantive evidence, and

explaining the plaintiffs were not required to "anticipate" the defendant's

testimony and "attack[] [the defendant's] credibility before she testified"). We

therefore discern no abuse of discretion in the court's decision allowing plai ntiff

to reopen her case to admit the recording.

      Defendant correctly argues that when the court overruled his objection to

plaintiff's request to reopen her case, the court indicated it would consider the


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audio recording for the purpose of assessing defendant's testimony that he did

not go into plaintiff's workplace. Defendant also correctly notes the court

actually relied on the recording as substantive evidence of what occurred during

the November 23, 2018 workplace incident.

      To the extent the court erred by relying on the recording in a manner

inconsistent with the limited purpose for which it admitted the evidence, the

error was harmless because it was not clearly capable of producing an unjust

result. R. 2:10-2. Plaintiff's testimony, which the court found credible, provides

an alternative and independent basis for the court's findings of fact concerning

the workplace incident. And, even had the court considered the recording solely

for the purpose of impeaching defendant's testimony that he did not go into

plaintiff's workplace, the recording otherwise supports the court's determination

that defendant was not a credible witness because he falsely testified at trial.

Additionally, there is sufficient evidence the court found credible that otherwise

supports the court's findings of each of the predicate acts without regard to the

audio recording of the workplace incident. The court's reliance on the recording

for purposes beyond those for which it was admitted was therefore harmless.

      Affirmed.




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