On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-331-01.
Before Judges King, Cuff and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This domestic violence case requires us to address questions of procedural due process as well as the required elements of harassment and stalking as predicate acts under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 ("the Act").
Defendant J.C.S. (hereinafter "J" or defendant), the husband of plaintiff H.E.S. (hereinafter "H" or plaintiff), appeals from a final restraining order entered pursuant to the Act. The order was entered after the trial judge found that defendant had committed acts against plaintiff constituting harassment, proscribed by N.J.S.A. 2C:33-4, and stalking, proscribed by N.J.S.A. 2C:12-10. Each of those offenses is a predicate offense under the Act. N.J.S.A. 2C:25-19a(13) and (14).
Defendant presents the following arguments on appeal:
THE TRIAL COURT VIOLATED [J'S] DUE PROCESS RIGHTS BY FINDING THAT HE COMMITTED AN ACT OF DOMESTIC VIOLENCE NOT EVEN ALLEGED IN THE COMPLAINT.
THE TRIAL COURT VIOLATED [J'S] DUE PROCESS RIGHTS BY FAILING TO SUPPLY HIM WITH SUFFICIENT NOTICE OF THE FINAL RESTRAINING ORDER HEARING.
A. [J] DID NOT HAVE TIME TO PREPARE A REASONABLE DEFENSE BECAUSE HE WAS NOT GIVEN SUFFICIENT NOTICE OF THE CHARGES AGAINST HIM.
B. THE COURT TOOK AWAY [J'S] RIGHT TO SUBPOENA WITNESSES BY FORCING HIM TO PROCEED TO TRIAL.
PLACEMENT OF A CAMERA AND MICROPHONE IN THE WALL OF THE COUPLE'S HOME DOES NOT CONSTITUTE DOMESTIC VIOLENCE.
THE COURT'S FACTUAL FINDING WAS NOT BASED ON SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD SINCE THERE WAS NO EVIDENCE THAT [J] PLACED THE CAMERA IN HIS WIFE'S BEDROOM OR USED IT TO TAPE HER.
We conclude that the facts supported by the evidence and found by the trial judge do not satisfy the elements of harassment as a matter of law; however, we agree with the trial judge that the proofs support the elements of stalking, and that under all the circumstances, defendant's due process rights were not infringed.
Defendant moved into a separate bedroom in November 1999, while plaintiff continued to occupy the marital bedroom. In June 2000, plaintiff filed a divorce complaint against defendant. However, the parties continued to share the marital home, along with their two young daughters, after the complaint was filed.
On August 21, 2000, J (the defendant in this case) filed a domestic violence complaint (FV-01-000321-01-C) against H (the plaintiff in this case), alleging that on August 17, 2000, H conspired with her brothers to break windows in J's two vehicles, thereby committing acts of terroristic threats and criminal mischief under the Act. A temporary restraining order was entered against H, with a final hearing scheduled for August 31.
On August 22, H filed this domestic violence complaint against J (FV-01-000331-01-C). The typed complaint that was served upon J specified the following acts committed by him:
ON 8-18-00 PLA[INTIFF] CAME HOME FROM CHURCH WITH THE CHILDREN. PLA[INTIFF] COULDN'T GET INTO HER GARAGE BECAUSE DEF[ENDANT] LOCKED SAME. DEF[ENDANT] BEGAN TO YELL AND SCREAM ABOUT HOW HE WAS GOING TO DESTROY PLA[INTIFF] & HER FAMILY. AND THE ONLY WAY PLA[INTIFF] WOULD GET OUT OF THIS MARRIAGE IS BY DEATH.
Plaintiff's August 22, 2000, complaint was filed on a pre- printed form designed for domestic violence complaints. The form provided five lines, each line approximately five inches long, on which to place this information. In the section for checking which of the predicate criminal offenses plaintiff alleged, there is a typed "X" next to "terroristic threats." Neither "harassment" nor "stalking" is checked.
In answer to the form question, "Any prior history of domestic violence?" there appears a typed "X" next to the printed answer "yes," but the only additional information in the three lines following the instruction "explain and dates," is the last line of the above-quoted answer about the August 18 incident and the cross-reference "SEE FV 01-321-O1C" (J's August 21 complaint against H).
Plaintiff's complaint and temporary restraining order, which set a final hearing for August 24, was served on defendant on August 23. Defendant's attorney's request for a continuance was denied, and a combined hearing on both complaints began on August 24.*fn1 J testified on his complaint. H testified in defense of J's complaint as well as on her own complaint. J did not take the stand to rebut H's testimony. At the conclusion of the hearing, the trial judge dismissed defendant's complaint for insufficient evidence. Defendant has not appealed that dismissal.
Plaintiff testified about the August 18 incident set forth in her complaint. Before she left for church with her children, defendant threatened to "destroy" plaintiff if she did not drop her divorce complaint. When she returned home after church, at about 11:15 p.m., defendant met them at the front door and said, "girls, you can come in. [H], it's over. You're doomed. I will destroy you. The only way you're going to get out of this marriage is by death." Plaintiff proceeded to go into the house, and defendant began to "rant and rave." When plaintiff's counsel asked if defendant had ever acted that way before, defense counsel objected that the complaint failed to list any prior incidents. The Judge ruled that "what may be in that form may be an issue for cross-examination and credibility, but it doesn't preclude in any way testimony regarding past incidences [sic] which are admissible in the Court."
Plaintiff proceeded to describe several incidents that occurred on various dates, one as far back as 1991, in which defendant displayed his "violent temper." He once refused to let her use one of his cars to get to work, telling her to "find your own way to get to work." Another time, when she did take his car to work, he came and took the car, leaving her stranded. About a year before the hearing, plaintiff confronted defendant when she found pictures of women, with names, addresses, and phone numbers, that defendant had printed from the Internet. Defendant chased her and physically pinned her down in an attempt to take the papers from her. He ...