May 30, 2007
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-000382-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2007
Before Judges Coburn and Gilroy.
Defendant C.G. appeals from the September 5, 2006, entry of a Final Restraining Order (FRO) pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff T.G. We affirm.
On or about August 25, 2006, following a short duration of marriage of twenty-one months, the parties separated. On August 29, 2006, plaintiff filed a domestic violence complaint alleging that defendant had made terroristic threats and harassed her on August 28, 2006, when he went to her place of employment at a public library in Mercer County and threatened her, stating: "Play [with me] if you want. I'm in the Marines. I will kill you [and] get away with it." A temporary restraining order (TRO) was issued against defendant. A final hearing was conducted on the matter on September 5, 2006, with only plaintiff and defendant testifying.
Plaintiff testified that several days prior to August 28, 2006, following their argument on the telephone, she went home and found that defendant "had destroyed and broke up all [her] stuff." Plaintiff left the residence without confronting defendant. Plaintiff did not see defendant again until August 28, 2006, at the library. After plaintiff observed defendant in the foyer outside the children's department where she was working, plaintiff went to meet him, after which defendant stated that he wanted to talk to her. Because defendant seemed tense, an indication that he might want trouble, plaintiff refused, telling him to "just leave me alone . . . . I don't want to talk." In response, defendant "started yelling real loud where's the fucking car? Why are you trying to be slick?" Suspecting that things may escalate, plaintiff tried closing the door before walking away, stating that she would be right back. In response, defendant stated: "I'll, you know, I'll kill you. I'm in the Marines. They'll never be able to find me." After that remark, plaintiff closed the door, telling defendant that she'd be right back, but never returned. Plaintiff exited through the library's backdoor and left the area because she was scared. Plaintiff also testified as to prior incidents when defendant had struck her, dating back to the year 2000.
Defendant confirmed that plaintiff had moved out of their residence on August 25, 2006, but denied breaking any of plaintiff's personalty. Defendant admitted that he had gone to the library on August 28, 2006, but denied harassing or threatening plaintiff. Contrary to plaintiff's testimony, defendant testified that he and plaintiff had been talking every day since the breakup and that the parties had arranged to meet at plaintiff's sister's house at 9:00 p.m. on August 28, 2006, to discuss their marital discord. He decided to stop at the library because it was close to 9:00 p.m., to confirm that the meeting was still on for that evening. After entering the library, he inquired of plaintiff where his 2005 Toyota Solara automobile was, and plaintiff responded: "Not now, I'll be right back," after which plaintiff left and never returned. Defendant denied that there was a past history of physical violence between the parties and he believed that plaintiff had filed the complaint only to gain possession of the 2005 Toyota automobile. He also testified that in 2001 plaintiff had been convicted of arson and aggravated assault which, on rebuttal, plaintiff acknowledged. Lastly, defendant testified that he was a former member of the Marine Corps and was discharged in January or February of that year.
In determining that defendant had committed the alleged acts of domestic violence, the trial judge stated:
Now it is true in this case it's one party's word against the other and the
[c]court must make assessments based upon the part[ies'] demeanor and their credibility. And the [c]court find[s] that the plaintiff's more credible than the defendant.
He says that he did not demand that his wife return home and ask for permission to go shopping and if she didn't he would break her things. He denies that. She testifies that's the way it happened. The [c]court finds her more credible than the defendant.
Defendant has testified that at this meeting outside the library he just happened to be . . . in the neighborhood and showed up at the library before the meeting. That seems implausible.
He must have intentionally gone there. So at the beginning that raises questions about his credibility. If he testified, I wanted to speak to her earlier, I wanted to make sure she'd go to the meeting, I showed up early. But just to happen to be in the neighborhood, strains credibility.
Also it doesn't seem to make sense if she works until 9:00 how could she agree to meet at her sister's house at 9:00 in Hamilton. That also doesn't seem to make sense.
So the [c]court is persuaded ever so slightly by the plaintiff's version of events. That the defendant threatened the plaintiff at the library. He was incensed that the plaintiff had the courage to leave him and insisted that she talk to him.
And when she resisted and indicated that she wasn't going to talk and she wanted to leave, he said I'm in the Marines. I will kill you and get away with it. He threatened her.
And that constituted [a] terroristic threat and it also constitutes harassment. The statement was made with the purpose to harass. That is to annoy or alarm her. And it was a threat of violence so it constitutes a terroristic threat. It was a threat to do harm to someone.
The [c]court considered the prior history of domestic violence. The [c]court is persuaded by a preponderance of the evidence that there is a past history of violence or at least a controlling relationship and that the incident on the 28th fits a pattern of control.
Therefore the [c]court found that a predicate offense occurred and that the plaintiff is in need of protection to prevent her from future acts of domestic violence and to prevent future acts of domestic violence.
On appeal, defendant argues:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT ADJOURNING THE HEARING TO SECURE THE ATTENDANCE AND TESTIMONY OF CRITICAL NON-PARTY WITNESSES TO THE ALLEGED OCCURRENCE.
THE TRIAL COURT'S FINDING THAT DEFENDANT MADE A THREAT SUPPORTING A FINDING OF DOMESTIC VIOLENCE WAS NOT SUPPORTED BY AMPLE CREDIBLE EVIDENCE IN THE RECORDS.
"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). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Tp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).
We have considered each of the issues raised in light of the record, the brief filed, and the applicable law, and we are satisfied that neither of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons expressed by Judge Ostrer in his oral opinion of September 5, 2006. Nevertheless, we add the following comments.
Before a defendant may be found to have committed an act of domestic violence under the Act, "a plaintiff must first prove that the defendant committed an act of domestic violence, as defined by the statute." Cesare, supra, 154 N.J. at 400. N.J.S.A. 2C:25-19a defines fourteen acts upon which a finding of domestic violence may be entered. The complaint alleged terroristic threats and harassment, N.J.S.A. 2C:25-19a(3) and (13).
The terroristic threat statute provides in pertinent part:
A person is guilty of a crime of the third-degree if he threatens to kill another with the purpose to put him [or her] in eminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it would be carried out. [N.J.S.A. 2C:12-3b].
The harassment statute provides in pertinent part:
Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he [or she]:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively course 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.
Based on our review of the record, we are satisfied that there was sufficient credible evidence for the judge to have concluded that defendant committed the two acts of domestic violence complained of.
The trial judge determined that defendant had intentionally gone to plaintiff's place of employment for the purpose of demanding that she return the automobile. The judge found that plaintiff's version of the events were more credible than defendant's denial. The record amply supports these findings, and we find no reason, therefore, to interfere with the trial judge's sound conclusions. See Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989) (holding that a trial court's factfindings bind the appellate court if supported by evidence, especially when the evidence is testimonial and the "trial court has had the opportunity to observe the witnesses and determine their credibility.").
As to defendant's procedural argument that the trial judge should have adjourned the final hearing to allow defendant to secure the attendance and testimony of non-party witnesses, we find the argument unpersuasive. The record discloses that the judge advised the parties that they could have requested an adjournment or continuance of the proceedings in order to secure the attendance of witnesses that either party believed necessary to support his or her respective position. Both parties elected to proceed without witnesses. There is no duty for the trial court to have subpoenaed witnesses sua sponte.
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