June 7, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH RILEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-228-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 20, 2007
Before Judges Kestin and Lihotz.
Defendant Joseph Riley appeals from a judgment of conviction and sentence, following a two-day bench trial in the Family Part, for contempt of a final restraining order (FRO) issued under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, a disorderly persons offense, N.J.S.A. 2C:29-9b. An additional charge of harassment, a petty disorderly persons offense, N.J.S.A. 2C:33-4a, was dismissed. Defendant was restrained from further contact with the victim, who is his estranged wife, Caroline Riley, and sentenced to pay a fine of $150 along with VCCB and SNSF assessments. We reverse, concluding the trial evidence presented was insufficient to warrant a conviction for contempt.
On October 6, 2005, the Family Part issued the initial FRO, which included a provision restraining defendant from having any form of contact or communication with Caroline, except as specifically noted. That same order granted Caroline temporary custody of the parties' six children, who ranged in age from one to eleven years of age. Defendant was awarded parenting time every Thursday and every other Friday through Sunday. By consent, the FRO was amended on November 3, 2005, to allow email and telephonic communication between defendant and Caroline to discuss issues related to the children, and to schedule additional parenting time, which defendant noted was one weekday each week. A second amended FRO was entered on November 30, 2005, to add defendant's obligation to pay Caroline's counsel fees.
Defendant testified that on December 2, 2005, Caroline asked him to drop-off a check, the parties' five-year-old son's sleeping blanket and some toner for a printer. Defendant advised he would place the items in Caroline's mailbox. Trial testimony by the parties and defendant's brother Miles Riley supported that the parties regularly used the mailbox to transfer items between themselves.
In the early morning of December 6, 2005, the parties exchanged emails regarding Christmas parenting time issues. Thereafter, defendant stated Caroline called him at 10:58 a.m., and they spoke about the parenting time issues. Defendant affirmed that during that twelve-minute telephone call, he told Caroline he would be dropping-off their son's sleeping blanket and his stuffed tiger, which were left behind during the last visitation. No one disputes that defendant actually left a bag containing the child's possessions in Caroline's mailbox on December 6, 2005.
As defendant approached the former marital home, he testified that he saw the parties' five-year-old son, alone on the front lawn, which "distracted him." Defendant accidentally drove into the Belgian block curb, which caused a flat tire and disabled his vehicle in front of Caroline's residence.
Caroline and defendant gave differing accounts of their interactions thereafter. Caroline testified she saw defendant in front of her house at 10 a.m. after she had received defendant's disparaging December 6, 2005 email at 9:11 a.m. Caroline stated that she felt "shocked and a bit frightened" by the course language used by defendant in his brief email response, so she was concerned when he appeared in front of her house. Caroline maintained defendant did not relate his intention to stop by her home to drop the child's items in her mailbox. When Caroline saw defendant's car outside her home, she "called her [divorce] lawyer." She stated that while she was on the telephone with her attorney, defendant made "several" calls, "at least five" to her, using his cellular phone. At her attorney's suggestion, Caroline called defendant to find out what he wanted. In that telephone call, defendant responded that he had a flat tire and requested to go "into the garage and get something to fix [it]." The prosecutor asked if defendant said anything else, and Caroline said, "Not that I recall." After again contacting her attorney, Caroline followed the lawyer's suggestion and "yelled out [her] door" asking what defendant was doing. Defendant said nothing. She stated she expressed her desire that he "drive away" and he "then raised his hands" in a gesture "like what am I suppose to do?"
Caroline called the police because defendant did not leave the premises.
On cross-examination, Caroline identified emails she had sent to defendant, which contained equally course language directed to him. She admitted that she and he used such language routinely during the parties' twelve-year marriage. Caroline agreed that defendant had sent her a second email that same morning at 10 a.m., which did not contain "foul language." The communication said: "Allow me to give you an answer that is more intelligent that the previous one," and further "stat[ed] he wished that [she] did not withhold the children from him."
During defendant's testimony, he introduced his cellular telephone records, which, he testified, reflect Caroline's calls to him. He identified the twelve-minute telephone call she placed at 10:58 a.m., and a two-minute call she made at 11:29 a.m. Defendant explained that, when the latter call was made, his vehicle was disabled in front of the former marital home. In that conversation, Caroline asked what he wanted and he told her he was delivering their son's possessions, and he had a flat tire, which he needed to change. Defendant confirmed he did ask to go into the garage to retrieve a spare tire, and also questioned Caroline on why their five-year-old was unaccompanied after exiting the school bus. Defendant testified Caroline called him a second time at 11:37 a.m., inquiring why he had not left. Defendant testified he told her that he could not locate a spare tire or the necessary tire changing tools in the van and asked whether the parties' oldest child could get him the spare tire in the garage; Caroline declined his request. Defendant states he again raised the issue about their unattended five-year-old son, suggesting he disagreed with the child walking from the bus to the house alone. Caroline told him she had "an arrangement with the bus driver" and the child was not his concern. She then ended the call.
Defendant called Caroline back, making two one-minute calls: the first, to her mobile telephone at 11:38 a.m., and, when she did not answer, the second, to the residence telephone at 11:39 a.m. Defendant testified he wanted to continue the discussion about the parties' son being left alone outside, but Caroline did not answer either call. The telephone records list a final one-minute call at 11:44 a.m., which is identified on the bill in the same manner as the prior calls defendant attributed to Caroline; however, defendant did not testify as to the nature of that call.
Montgomery Township Police Officer Laura Pavan, testified that she responded to the police call regarding a possible violation of a restraining order. Defendant explained to Officer Pavan that he intended to drop-off his son's toy in the mailbox and then leave, but he saw the child on the front lawn, he hit the curb and suffered a flat tire. Officer Pavan stated defendant's comments to her evidenced his belief that he was permitted to be on the street, so long as he was not on the property. Officer Pavan testified defendant said "he called his wife to find out whether he could enter the garage to get a couple of tools to help him change the tire." Because the FRO in the police's file did not contain the provisions allowing telephone calls, Officer Pavan "reacted" to those calls, as a violation of the FRO.
Miles Riley, defendant's brother, provided testimony regarding his observations and experiences with the parties' practice of leaving items for each other in the mailbox of the former marital home. Miles stated that there were "at least a dozen" occasions between October 6, 2005 and December 6, 2005, when Caroline had called him to ask defendant to drop-off the children's belongings or other items or when, in Miles's presence, Caroline called defendant asking him to drop-off items or to pick-up the children's belongings she had left in the mailbox.
Citing State v. Wilmouth, 302 N.J. Super. 20 (App. Div. 1997), the trial court determined that no contempt occurred as a result of defendant's act of going to Caroline's house to drop-off the child's personal property, stating: the parties had established a pattern of interacting; that is pick-up and drop-off of personal property at or in the mailbox over the course of the period of time after the entry of the first [FRO] on October 6, 2005, and the time of the alleged violation, December 6, 2005.
Examining the telephone calls, the trial judge explained that she "could not tell from the records," whether the two telephone calls identified by defendant were actually made by Caroline. The trial court found defendant's explanation about the substance of the two telephone calls he initiated, at 11:38 a.m. and 11:39 a.m., to be "incredible" suggesting defendant's concern for the child would have been "far outweighed by the aggravation [defendant] must have felt in the situation he was [in]." The trial judge stated:
Now he's outside [Caroline's] home and he's calling her up twice in one minute to complain to her by his own testimony about a subject, their son . . . getting off the bus with nobody meeting him there, that the victim had already said she didn't want to talk about. That's the problem. In combination with his being outside her home where he is not supposed to be, the Court finds that was a violation of the restraining order.
Addressing the defendant's state of mind, the trial judge recited the following findings and conclusions:
The next question is was it knowingly or purposely? The Court is entitled to draw reasonable inferences from the facts established on the record, and those facts are [that] these two telephone calls within one minute of each other which the defendant now says were just about the child, yet the defendant by his own testimony was standing looking in the van outside the home in a vehicle that he was not terribly familiar with, couldn't find the paraphernalia he needed to fix the tire. He is late for work, he's supposed to be at work to make certain phone calls that he hadn't, and he's now there with a flat tire and no apparent means to fix it.
Those circumstances tell me that he called, made those two calls at 11:38 [a.m.] and 11:39 [a.m.] to[,] in essence [,] blame, intimidate, ask for or otherwise involve the victim in this situation he found himself in. And I believe his statements today that they were made about the child which, frankly, this court find incredible, are probably the best evidence that he knew perfectly well even at the time that he wasn't supposed to be making these calls about getting a spare tire, or getting the tools to fix it. He admits that he asked about that. That's not about a child, that's about fixing his flat tire. And on the subject of demanding to come in and get the flat tire I frankly find the victim's testimony more credible.
Based on this I find that the State has demonstrated beyond a reasonable doubt that the defendant knew that he should not be making these calls. That's why he today [has] couched them as being calls about a child when[,] even by his own testimony[,] one discussion was not about a child[,] although he didn't make that call by his testimony. Again, I find the victim's version more credible that he called her and demanded the spare tire, or demanded to be able to go get it.
On appeal, defendant challenges the trial court's determination that the State satisfied its burden of proof. He contends the only evidence presented shows that defendant made two telephone calls, leaving messages, to discuss their five-year-old son walking unaccompanied from the school bus. He argues no evidence supports a violation of the FRO and no proof was submitted to substantiate defendant knowingly violated the FRO.
Review of a judge's decision in a criminal trial is limited to "determin[ing] whether the findings made could reasonably have been reached on sufficient credible evidence present in the record," given the burden of proof, which is proof beyond a reasonable doubt. State v. Johnson, 42 N.J. 146, 161-62 (1964); see also N.J.S.A. 2C:1-13a; State v. Finamore, 338 N.J. Super. 130, 138-39 (App. Div. 2001); State v. J.T., 294 N.J. Super. 540, 545-46 (App. Div. 1996). Deference is required "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). The question is not whether this court would come to "a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. We reverse only if "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Ibid. "This sense of 'wrongness' can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, [or] a clearly unjust result . . . ." Ibid. there is no challenge to the trial judge's dismissal of the harassment charge and her conclusion that the prior course and pattern of behavior established that the parties demonstrated they had reached an accommodation to exchange property by using the mailbox at the former marital home. See Wilmouth, supra, 302 N.J. Super. at 21-22. Regarding defendant's conviction for contempt, however, our review determines that the record contains insufficient evidence to support the judge's conclusion. See Johnson, supra, 42 N.J. at 161-62; J.T., supra, 294 N.J. Super. at 545-46.
The applicable statute governing defendant's conviction, N.J.S.A. 2C:29-9b, provides in pertinent part:
Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the [PDVA] . . . when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense. In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States.
The elements of a fourth-degree offense, include that: (1) a restraining order was issued under the PDVA; (2) defendant violated the order; (3) defendant acted purposely or knowingly; and (4) the conduct that constituted the violation also constituted a crime or disorderly persons offense. See State v. Chenique-Puey, 145 N.J. 334, 341-42 (1996); State v. Krupinski, 321 N.J. Super. 34, 43 (App. Div. 1999). A simple knowing violation of a PDVA order, without more, is a disorderly persons offense.
The trial judge appears to have concluded defendant violated the restraining order when he communicated with Caroline to "demand" that she allow him access to the garage, and because he made "two calls at 11:38 [a.m.] and 11:39 [a.m.] to[,] in essence[,] blame, intimidate, ask for or otherwise involve [Caroline] in this situation [in which] he found himself." It is these factual findings that are unsupported.
Contrary to the trial judge's statement that she "could not tell from the records" whether Caroline made the two telephone calls identified by defendant, the evidence speaks otherwise. Both Caroline and defendant testified that Caroline called defendant on two occasions that morning. The cellular phone bill reflects two calls made at 11:26 a.m. and 11:29 a.m. Defendant's testimony that these were the calls made to him by Caroline was not refuted. The telephone records also show no calls by defendant at 10 a.m., as Caroline swore. The records show the twelve-minute call Caroline placed to defendant at 10:58 a.m., occurred before defendant arrived at Caroline's house. This testimony also was not refuted. Further, the records reflect what defendant testified was his one-minute "heads-up" message at 10:58 a.m., when he left a message that he was almost at Caroline's home with the child's property; and the two calls he made after Caroline called him. Caroline's testimony that defendant called "at least five times" before she called him is not evident. Thus, the documentary evidence introduced corroborates defendant's account of events.
It is also unchallenged that the only request by defendant to access the garage for the spare tire was made during Caroline's call to him. In that call, defendant states he explained he had a flat tire, asked to get the spare, and voiced his concern about the child. Caroline neither disagreed nor refuted this testimony. Defendant asserted that Caroline terminated the call and he called her back --first on her cell phone and, when she did not answer, on the house telephone.
There was no contact made during these calls and no proof was submitted that "demands" by defendant were presented at this time. The trial court's determination to the contrary is simply not supported.
Additionally, there is no evidence proffered by the State, to substantiate a finding that defendant displayed a demanding or daunting demeanor. Neither Caroline nor Officer Pavan cited any evidence from which such an inference could be drawn. The trial court's conclusion that defendant violated the FRO because he was "making these calls about getting a spare tire, or getting the tools to fix it" is not sustainable. The specific finding that Caroline testified that defendant "called her and demanded the spare tire, or demanded to be able to go get it" is absent from this record.
The trial court also relied on general credibility findings to enunciate the conclusion regarding defendant's intent to violate the FRO. No evidence refuted defendant's explanation that he called to follow-up on whether their five-year-old son should be alone while walking from the school bus to the house. The trial judge found this "incredible" in light of the prior unsubstantiated finding that defendant "demanded" access to the garage. While credibility findings need not be explicitly enunciated if supported by the record as a whole, Locurto, supra, 157 N.J. at 474, we may intervene if a trial court's credibility evaluation is "undoubtedly mistaken." Lautek Corp. v. Image Bus. Sys. Corp., 276 N.J. Super. 531, 541 (App. Div. 1994). We determine that the findings made on defendant's intent are hobbled by the inaccurate material factual findings.
The trial judge concluded defendant was guilty of contempt for participating in a conversation initiated by Caroline. We find no reported cases reflecting facts similar to those presented, despite the sense that the scenario would be commonplace. Caroline called, defendant answered her questions, and also asked to enter the garage and inquired about the child. We conclude that a conviction for the violation of a FRO cannot be bottomed solely on defendant's response to the victim's communication. Absent actions by defendant, which otherwise support a finding of a criminal offense, his participation in a telephone call placed by Caroline was not contumacious. "Neither the subject matter nor its form of presentation warranted a contempt charge." See Finamore, supra, 338 N.J. Super. at 139. The trial court's conclusion to the contrary was mistaken.
We urge Family Part judges to scrupulously examine whether a communication from a defendant restrained by an FRO, which responds to an inquiry elicited by a victim of domestic violence, rises to criminal contempt, especially when the "potential for unfair advantage" in the light of ongoing matrimonial litigation is presented. See Peranio v. Peranio, 280 N.J. Super. 47, 56 (App. Div. 1995); see also Murray v. Murray, 267 N.J. Super. 406, 410 (App. Div. 1993). As we have noted, "[t]here are too many substantial and significant domestic violence matters requiring the urgent attention of the court system to squander judicial and prosecutorial resources on patently unmeritorious litigation which, moreover, unfairly subjects people to criminal penalties." Wilmouth, supra, 302 N.J. Super. at 23.
We are satisfied that the State's evidence is not adequate to permit a finding, beyond a reasonable doubt, that defendant knowingly violated a restraining order. See Finamore, supra, 228 N.J. Super. at 138-39.
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