On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County.
King, Gruccio and Brochin. The opinion of the court was delivered by King, P.J.A.D.
This is an appeal from a March 25, 1991 adjudication of domestic violence under the now-repealed original Prevention of
Domestic Violence Act, N.J.S.A. 2C:25-1 to 2C:25-16 (the Act); L. 1981, c. 426. The Act has been repealed and replaced by the Prevention of Domestic Violence Act of 1990, L. 1991, c. 261, § 20, effective November 15, 1991. Defendant-appellant Richard Roe (Richard) contends that the Family Court Judge committed the following errors by ruling that: (1) he committed an act of domestic violence; (2) testimony of prior acts between the parties were relevant; (3) he admitted threatening to kill his wife, Donna Roe (Donna); (4) Donna did not have to produce her diary; and (5) his actions warranted his permanent removal from the marital home. There has been no motion to accelerate the appellate hearing in this matter. See R. 1:2-5; R. 2:9-2.
On January 22, 1991 plaintiff Donna filed a complaint under the Act, see N.J.S.A. 2C:25-13. She alleged that her husband, Richard, had committed an act of domestic violence against her on January 14, 1991. A temporary order was entered on January 22, 1991, restraining Richard from returning to the marital home, prohibiting any contact with Donna, granting Donna temporary custody of the couple's two minor children, and prohibiting Richard's visitation with the children pending a final hearing. Richard appeared pro se before Judge Chaiet on January 23, 1991 and requested an immediate hearing. A hearing was scheduled for January 24, 1991.
On January 24, 1991 Donna appeared with counsel and Richard again appeared pro se. At that time a consent order was entered between the parties in which Richard agreed to remain outside the marital home, pay $100 a week in support, and pay roof and gasoline expenses. A visitation schedule was set and the parties, and their daughter, age 6, were directed to attend counseling. Judge Chaiet ordered the matter re-listed in 30 days.
The matter was not heard until March 25, 1991. Donna and Richard both testified at this hearing. After considering the testimony of both parties, Judge Bassler issued a final order under the Act. The order forbade Richard from "returning to
the scene of the domestic violence;" from having any contact with Donna or her relatives, except for making visitation arrangements; and granting custody of the children to both parties.
A consent order was filed on April 23, 1991 and addressed visitation arrangements. The order also provided that Richard pay $100 a week unallocated support, the mortgage on the marital residence, taxes, reasonable utilities, homeowner's insurance, and a gasoline credit card. On May 9, 1991 Richard filed this appeal from the adjudication of domestic violence.
These are the facts developed at the hearing and relied upon for the issuance of the March 25, 1991 order. Donna and Richard Roe were married on May 15, 1983. Their daughter was born September 15, 1983; their son was born on October 10, 1988.
In the complaint against Richard filed on January 22, 1991, Donna alleged that Richard committed an act of domestic violence on January 14, 1991. According to Donna, Richard threatened to kill her, or to have someone kill her, during a heated Discussion in their home. At the March 25 hearing she testified that she and Richard had been having marital problems for some time. On the night of January 14, Richard brought home a "soft porn" movie and convinced her to watch it with him. Donna felt "distanced" from her husband, in part because of the movie and his admission to her that he was going to a "go-go" bar the next day with a friend. At about 1:30 a.m. they went to their bedroom and had a "heated Discussion." Donna testified that Richard "became very nasty" because she "did not want to be with him" and
He said that's it. I'm putting you on notice. I'm not going to be your patsy anymore. I'm, not carrying -- you're carrying your own freight. Richard goes in day care and you go to work . . . . He said I'm putting you on notice that we're separated so if you, if you hear about me seeing anyone, you know in advance and I'm going, I'm going to get whatever I can, wherever I want it, whenever I want it.
And I said, well, Dick, you know, we'll always be connected because of the kids. And with that he said, not if I kill you. Or I won't kill you, I'll have
someone do it. And he wasn't laughing. It was a, it was a -- it was something of a heated argument. I mean, not -- he was laying down and saying all this. But he wasn't laughing. He wasn't joking. He didn't say I'm only kidding. He didn't say anything and I proceeded to just -- I just went to sleep. I was really afraid and as I thought about what he had said, because I've been in a marriage that's been abusive from day one, both physically and mentally and verbally, I took him very seriously. And that's why I filed a complaint.
Donna testified that she feared for her life and believed that Richard had the capability to carry his threat out. Donna said that during their marriage Richard had displayed constant emotional outbursts, used foul language in front of the children, and often threatened to withhold money for food and household bills.
Donna testified to specific examples of abuse over the eight years of their marriage. On one occasion, when their daughter was 18 months of age, Richard grabbed Donna by the throat, pinned her on the couch, and threatened her for arguing with him. Donna testified that when she was nursing their daughter, she "did something he didn't like" and he pulled her by the hair. She said that once he hit her on the head with a hardcover book. Donna also described an "emotional outburst" in which Richard, in frustration because he could not find a pair of jeans, threw a basket of folded laundry down the stairs in front of the children.
Donna filed a domestic violence complaint in October 1985 which she later withdrew. She filed the complaint because of a "series of . . . problems" and "all the physical abuse that he doled out" made her realize their marriage was not going to work. She stated that after the complaint was filed the abuse stopped for a while and then changed from physical abuse to verbal abuse and "mental cruelty." She withdrew a final restraining order on October 4, 1985 because it was early in the marriage and she wanted to "try and work things out."
Donna also testified to an alleged act of violence which she said occurred after the filing of the present domestic violence complaint. According to Donna, on March 16, 1991, Richard appeared at her parents' house with the children during one of
his visitation days. The baby was asleep and Richard wanted to leave him with Donna. The couple argued and Donna testified that Richard came up the steps and pushed her out of the open door. Donna pushed back, but he pushed harder and "pushed his way into the house." Richard then went up the stairs, had a drink of water and used the bathroom, while Donna yelled at him to leave the house. The couple apparently talked outside for a while before Richard left with the children.
On cross-examination, Donna said that she had filed a divorce complaint February 19, 1991. She admitted that the death threat of January 14, 1991 and the earlier "hair pulling" incident were not among the enumerated allegations of cruelty in the complaint, however. Counsel also brought out the fact that Donna had remained in the home after the January 14th incident for eight days before filing her complaint: during that time the couple continued to talk, go out to eat, and rent movies. Donna never called the police after Richard allegedly threatened her; she slept in the ...