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A.K. v. D.K.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 21, 2007

A.K., PLAINTIFF-APPELLANT,
v.
D.K., DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-000592-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 1, 2007

Before Judges Coburn, Axelrad and Gilroy.

Plaintiff A.K. filed a complaint against her husband D.K., under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Plaintiff appeals from the December 14, 2005, order denying her request for a Final Restraining Order (FRO). We reverse and remand to the trial court for further proceedings consistent with this opinion.

Plaintiff was previously married to L.M. A son, L.J.M., was born of that marriage on April 28, 1994. Plaintiff's former husband was abusive, having raped plaintiff on several occasions and having sexually abused their son. Because of his abusive conduct, plaintiff filed and prosecuted a domestic violence complaint against L.M. In 1998, plaintiff filed for divorce from L.M. and began dating defendant in April of the same year. Following her divorce from L.M., plaintiff and defendant married on January 25, 1999. A son, W.K., was born of their marriage on March 31, 1999. Following their marriage, defendant adopted L.J.M., changing the child's name to L.J.K.

On June 27, 2005, plaintiff filed a domestic violence complaint alleging: "[T]he defendant has threatened her life on several occasions. Defendant verbally and mentally abuses her on a daily basis along with neglect[ing] her medical problems." The complaint also referenced past acts of domestic violence where plaintiff alleged that she "ha[d] been assaulted, pushed down the stairs," and "defendant said he [would] kill her on several occasions." A temporary restraining order (TRO) was entered against defendant that day. On December 14, 2005, the judge issued an oral decision denying plaintiff's request for a FRO and dismissing the complaint. A confirming order was entered that day.

The FRO hearing was conducted over eight non-consecutive trial days. Testifying for plaintiff were: plaintiff; Dr. Linda Bickery, plaintiff's treating family physician; Dr. Jessica Platt, a child psychologist; and E.N., plaintiff's mother. Testifying for defendant were: defendant; Dr. Avanente Tamagnini, a child psychologist; Dr. Dennis Stainken, a toxicologist; and W.E.K., defendant's father.

Plaintiff testified to the June 26, 2005 incident as follows. Plaintiff's parents, visiting from Poland, gave plaintiff $400 to use in applying for American citizenship. Plaintiff deposited her parents' check into the parties' joint checking account. On June 20, 2005, plaintiff wrote a check in the amount of $390 to herself; exchanged the personal check for a bank cashier's check; and sent the cashier's check to the Department of Homeland Security to commence her application for citizenship.

On June 24, 2005, defendant called plaintiff into the kitchen, where he "had the checkbook in his hand." Defendant "started to waive [sic] [the checkbook] at me, yelling at me that how dare my father [give] me the money for my birthday, how dare I apply for the citizenship without his authorization. He called me and my father [thieves]." Following the encounter, defendant forcibly shut the door as plaintiff tried to leave and ordered her to go upstairs. Plaintiff refused and left the house with her father to obtain proof from the bank that she had not stolen any money. After realizing that the bank was closed, plaintiff returned home, stopping on the way at the Vernon Police Department where she reported defendant's abuse but did not sign a complaint, desiring to give him one last chance.

On June 26, 2005, plaintiff's father returned to Poland, with his wife accompanying him to the airport. After her parents left for the airport, defendant came out of the house, "furious":

I was with the children outside on the swing set. My husband came out of the house very angry. He said to me inside the house right now. I said to him I don't want to . . . go inside, I'm not going.

He said to me inside right now and I said I'm not going. Then he said that my father would regret that he left my [m]om behind, that if he would come back again in August[,] he's going to hurt him, he's going to hurt my parents. He went towards the house. He came back after a few minutes and he screamed, yelling to me and to the kids that he will hurt us and he will kill us all.

When plaintiff finally entered the house, she found that defendant had locked himself in the master bedroom, so she gave the children a bath and put them to bed. After the children were in bed, defendant grabbed her, and pushed her onto the bed, yelling that if her mother did not leave the house by next Saturday, "he's going to hurt us, he's going to kill us and I'm gonna be dead." Plaintiff filed her complaint the following day.

Concerning the prior alleged incidents of domestic violence, plaintiff testified that defendant was abusive, both physically and mentally, as far back as April 1999. The incidents included: sexual assault in April 1999 by forcing her to have sexual relations while recovering from the delivery by caesarian section of W.K.; rape in the spring of 2002; verbal and physical abuse in October 2002, with defendant calling her a "stupid Polish bitch" and pushing plaintiff's mother into the wall of the master bedroom; rape again in November 2002; assault in February 2003, after plaintiff had a hysterectomy due to severe endometriosis, where defendant dragged plaintiff around their bed, pushed her across the hallway floor, and threw her onto the staircase; physical and verbal abuse in the Spring of 2003, when defendant told her that she was not a woman anymore because she did not have a uterus and forced her to perform oral sex on him; verbal abuse in November 2004, when defendant called L.J.K. a "stupid Peruvian bastard;" verbal and physical abuse in November 2004, when, following an argument concerning plaintiff's need for an ambulance, defendant grabbed and threw plaintiff onto the sofa, yelling "who did you call this time, you stupid Polish bitch?"; a terroristic threat in November 2004, following a police response to the home at the request of a friend of plaintiff's mother, defendant confronted plaintiff with a belt in his hands saying, "that if I will ever talk to or call police again, he will fix me so well that nobody will recognize me;" and physical abuse in Spring of 2005, when defendant grabbed her and threw her against a wall. Plaintiff also testified that W.K. had informed her in March 2005 that defendant had sexually abused him and that she believed that defendant had commenced poisoning her in the fall/winter of 2004.

Defendant denied all prior allegations of domestic violence against A.K. and sexual abuse of W.K. Regarding the June 26, 2005 incident, defendant testified that when he returned from work, he answered the phone, and a Citibank representative informed him that the parties' credit card payment was overdue. When he asked plaintiff if there were any bills that he had not seen, plaintiff threw the mail down on the counter and returned to the dinner table. Defendant called the bank's automated checking service to check the balance on their joint checking account. After hearing the balance, defendant believed that money was missing from the account. Defendant went through the checks, one by one, and checked which ones had cleared using the bank's automated system. In doing so, he came across the $390 check in the register, which had "void" written next to it, but the bank showed that it had cleared the account. Defendant asked plaintiff about the check, and she did not say anything to him, left the room to get her father who told defendant that the money was in the account. Plaintiff then told defendant that her father had given her $400 for her birthday to process her citizenship application. Defendant denied that any physical altercation had occurred between him and plaintiff that night.

On June 25, 2005, defendant viewed the scanned images of the cancelled checks on the bank's website. He discovered that plaintiff had written the check to herself, not to Homeland Security or to Immigration. Defendant confronted his wife about the check, and when he did so, his father-in-law retrieved the deposit slip to show him what had transpired. Defendant testified that no argument or physical altercation occurred that day.

On June 26, 2005, when his father-in-law was leaving for the airport, plaintiff told him that her mother was staying for the remainder of the Summer. As the taxi pulled away, his father-in-law told him that he would be back in August. Defendant believed that his father-in-law was coming back in August to take plaintiff and their children back to Poland with him. Defendant denied arguing with his wife during the day, but did acknowledge that they argued that evening:

We had a talk and I said, you know, we need to talk because I don't want your mother to stay . . . all summer again. Your mother has been here for - - now this is the fifth visit of duration of six months or so. And . . . that's enough. We hadn't discussed this when you came to me and asked if your parents could come, you indicated to me that your father could only stay for two weeks. It's already five weeks and now you just announced to me that your mother is going to stay for the balance of the summer, without even discussing it with me.

Plaintiff responded, "that's it, I'm not going to put up with this mental abuse anymore." Defendant left the room after that and did not see plaintiff for the rest of the night. On June 27, 2005, defendant was served with a restraining order by the Vernon Police Department.

In denying plaintiff's application for an FRO, the trial judge determined plaintiff was "a credible -- generally speaking, a very credible person with regard to her testimony." Notwithstanding, the judge rejected plaintiff's testimony concerning her allegations of past acts of domestic violence, determining her testimony not believable. In doing so, the judge found that plaintiff had serious medical problems requiring "a very extensive course of treatment, all of which could result in a psychological overlay which may color her perception of certain events that have taken place." As to the past acts of forced sex, the judge stated:

I [am] not satisfied that those allegations have been proven to my satisfaction by the credible evidence. While I do believe that there were times that she had certain physical limitations, that she may have not preferred to engage in sexual relations, that those -- that that testimony is colored by the perceptions that exist now rather than anything that took place previously.

The judge rejected plaintiff's testimony concerning the alleged past acts of domestic violence, determining that her version of events was belied by the fact that she never reported the assaults to the police or her treating doctors. Specifically, the judge stated:

The most telling aspect of that is that she never made any complaints about that to any law enforcement agency. She never -- she had gone through a domestic violence proceeding with her former husband. She knew what her rights were. She had gone through this whole process, including a trial, and a woman who had been through that whole process of going and making a domestic violence complaint and going through the court process, is, in my view, less likely to let the same conduct be repeated by another perpetrator, maybe not just once, but multiple occasions as she alleged, I don't believe that portion of her testimony is credible. It's really an effort to paint [D.K.] as some kind of abusive individual who is a vicious brut, who is a person who acts inappropriately toward her, violently toward her. I reject that testimony. I don't believe it.

As to the alleged predicate acts of domestic violence on June 26, 2005, the judge found that defendant had become suspicious concerning plaintiff and her parents' trips to New York City and plaintiff's attempt to obtain citizenship, and perhaps a passport. The judge found that defendant confronted plaintiff out of fear that plaintiff would take the children to Poland, based on her extended stay there with L.J.K. during her prior marriage, and research defendant did on the family computer showing that plaintiff had sought information concerning the Polish Embassy. The judge concluded that although June 26, 2005, was an unhappy day in their lives, "that nothing was done which constitute[d] an act of domestic violence under our statute." He found that "[i]t was a completely dysfunctional household," but he was "not satisfied that the proofs had established [an act of domestic violence] by a preponderance of the evidence."

On appeal, plaintiff argues:

POINT I.

IN DISMISSING PLAINTIFF'S DOMESTIC VIOLENCE COMPLAINT AND VACATING THE CORRESPONDING TEMPORARY RESTRAINING ORDER, THE TRIAL COURT FAILED T[O] GIVE PROPER CONSIDERATION AND WEIGHT TO THE FACTORS RECITED IN N.J.S.A. 2C:25-29(a).

POINT II.

THE TRIAL COURT COMMITTED REVERSIBLE LEGAL ERROR WHEN IT LIKENED THE CURRENT MATTER TO THE CASE OF CORRENTE V. CORRENTE, 281 N.J. SUPER. 243 (APP. DIV. 1995).

POINT III.

THE DEFENDANT'S FAILURE TO PRODUCE PROFERRED WITNESES OFFERED IN SUPPORT OF OBJECTIONABLE EVIDENCE ENTITLED PLAINTIFF TO AN ADVERSE INFERENCE RULING AND/OR SUA SPONTE RULING STRIKING THE EVIDENCE, THE EFFECT OF WHICH WAS TO CREATE UNDUE PREJUDICE.

POINT IV.

THE TRIAL COURT'S IMPOSITION OF UNREASONABLE AND IMPROPER RESTRICTIONS UPON THE PLAINTIFF'S COUNSEL DURING CROSS-EXAMINATION AND IN SUMMATION UNNECESSARILY LIMITED COUNSEL IN HIS REPRESENTATION OF THE PLAINTIFF.

POINT V.

THE TRIAL COURT COMMITTED ADDITIONAL REVERSIBLE ERROR WHEN IT IMPROPERLY AND WITHOUT AN ADEQUATE FACTUAL BASIS CONJECTURED THAT PLAINTIFF'S ALLEGATIONS OF DOMESTIC VIOLENCE WERE CAUSED BY PSYCHOLOGICAL OVERLAYS CREATED BY HER SERIOUS MEDICAL CONDITION.

POINT VI.

THE TRIAL COURT DIMINISHED THE IMPACT OF DOMESTIC VIOLENCE ON VICTIMS BY IMPROPERLY CONCLUDING THAT VICTIMS SHOULD OR WOULD SPONTANEOUSLY DISCLOSE ABUSE TO MEDICAL PROFESSIONALS AND/OR LAW ENFORCEMENT PERSONNEL SIMPLY BECAUSE THE[Y] HAD SUCCESSFULLY OBTAINED A RESTRAINING ORDER IN THE PAST.

"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). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Rule 1:7-4(a) requires that a trial court "by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury." "'Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion. In the absence of reasons, we are left to conjecture as to what the judge may have had in mind.'" In re Farnkopf, 363 N.J. Super. 382, 390 (App. Div. 2003) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). Accordingly, "[a] trial judge must make detailed factual findings and relate them to the applicable law." C.F. Seabrook Co. v. Beck, 174 N.J. Super. 577, 594 (App. Div. 1980). We find insufficient explanation of the judge's reasons with respect to his conclusion that plaintiff failed to prove the predicate acts of domestic violence.

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. In determining whether a party's actions constitute domestic violence, the Act requires that a trial judge's consideration includes factors, such as any previous history of domestic violence between the parties, including any threats, harassment, and physical abuse, and the existence of any immediate danger to person or property. N.J.S.A. 2C:25-29a(1) and (2). However, "a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation." Cesare, supra, 154 N.J. at 402.

Here, the complaint alleged terroristic threats and harassment, N.J.S.A. 2C:25-19a(3) and (13). The judge, although determining plaintiff and her mother generally credible, concluded that the acts and statements complained of did not constitute acts of harassment or terroristic threats under the Act:

Now, with regard to the basic allegation that was made by [plaintiff] concerning the act of domestic violence complained of on June [26th], 2005, I [am] satisfied that that was an unhappy day in their lives but that nothing was done which constitutes an act of domestic violence under our statute. The allegation is made that there was a terroristic threat and harassment and broadly based that there was assaultive behavior that took place. I [am] not satisfied that the proofs establish that by a preponderance of the evidence. I think there was a lot of unhappiness in that household, there was a lot of arguing going on. There was a lot of commotion going on about the parents going back to -- rather the father going back to Poland, the commotion that existed with Mom --Grandmother staying there and everything else that was going on. It was a completely dysfunctional household.

And I am satisfied that to the end that there were any threats, harassment or physical abuse between the parties, that none of it rises to the level of domestic violence as alleged in the complaint, the specific acts I ruled upon that have been complained about.

As to the prior history alleged here, nothing that I heard testimony about would rise to the level of constituting domestic violence under the statute. And under our statute, under the particular definition of domestic violence, with regard to the events on June [26th], 2005, I am not satisfied that an act of domestic violence occurred that day.

The judge did not make specific findings of fact in support of his conclusion that the acts of domestic violence did not occur on June 26, 2005. As a result, we are unable to discern whether the judge found that the acts and statements complained of had occurred as testified to by plaintiff, but for unstated reasons defendant's actions and statements did not qualify as a terroristic threat or harassment under N.J.S.A. 2C:12-3 and N.J.S.A. 2C:33-4; or that the actions and statements complained of never occurred; or that the actions and statements did occur, in total or in part, but not in the manner or with the intended purpose as testified to by plaintiff.

Without the trial judge's specific fact finding, we are unable to fulfill our function in determining whether the denial of the FRO was correct. We can only speculate as to the judge's reasoning. "Such speculation is an unacceptable basis for appellate review." Fort Lee v. Banque Nat. de Paris, 311 N.J. Super. 280, 289 (App. Div. 1998). Accordingly, we reverse the December 14, 2005, order and remand the matter to the trial court for reconsideration after its review of the existing record and further findings of fact. Therefore, we need not address the merits of all issues presented by plaintiff. However, because the matter is being remanded to the trial court for reconsideration, we make the following comments.

The trial judge determined plaintiff's testimony concerning past acts of domestic violence not credible. In reaching his conclusion, the judge found that: 1) plaintiff's perception of the alleged events may have been colored as a result of a psychological overlay caused by the extensive course of medical treatment plaintiff had received for her illnesses; and 2) having filed a domestic violence complaint in the past against her former husband, that if the acts had truly happened, plaintiff would have reported defendant's conduct to the police or medical providers when they occurred.

We are satisfied that the judge erred when he inferred that the treatment plaintiff had received for various medical ailments may have clouded her perception of prior instances of abuse. "A factfinder should not be allowed to speculate without the assistance of expert testimony in an area where the average person could not be expected to have sufficient knowledge or experience." State v. Doriguzzi, 334 N.J. Super. 530, 538 (App. Div. 2000). The test for "determining whether expert testimony is required is whether the matter under consideration is so esoteric or specialized that jurors of common judgment and experience cannot form a valid conclusion." Giantonnio v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996). Stated another way, generally, expert testimony is needed and allowed when "the intended testimony [concerns] a subject matter that is beyond the ken of the average juror." Landrigan v. Celotex Corp., 127 N.J. 404, 413 (1992). "For example, any claim of mental illness affecting behavior is probably sufficiently esoteric to require expert testimony." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (2007). Such is the case here.

None of the medical experts who testified at the hearing opined as to plaintiff's state of mind; or that her perception of events was colored as a result of the medical treatment she had received; nor were any facts introduced that would lead to such a conclusion. Other than defendant testifying that he thought plaintiff was a hypochondriac, neither side presented any evidence that plaintiff's severe medical problems, or her legal use of prescription drugs during treatment, had any effect on her perception of reality. Therefore, the trial judge's determination that plaintiff's perception of past events may have been colored by the treatment she was receiving for her medical condition was not adequately supported by the record.

We also have concern as to the weight that the judge gave to plaintiff's failure to report the prior alleged acts of domestic violence to the police or her doctors. Plaintiff testified on cross-examination that she was "terrified" of her husband; that every time she had an opportunity to report the abuse to law enforcement or medical personnel, her husband was either present or within earshot; that defendant told her that he had friends in the Verona Police Department, and if she told anyone of the abuse, he would find out about it; and that defendant threatened her life on several occasions. When asked by defense counsel why she did not tell medical personnel about the abuse when she was hospitalized in Spring 2002, and why she told the triage nurse that "she had a good husband now," she testified that her husband was with her the entire time, except at night, when she was sleeping. Plaintiff provided similar testimony when asked why she did not tell the police of the abuse when they arrived at her house. Plaintiff stated that she did not tell the officers about the abuse because her husband was on the other side of the door, listening to her conversation.

In evaluating plaintiff's allegations of prior abuse, the judge found plaintiff's testimony not credible because "[i]t's more likely that [plaintiff], knowing what her rights were [as a prior victim of domestic violence] under the Domestic Violence law, would have done that and would have provided that information to her treating doctors." We do not criticize the judge's consideration of plaintiff's failure to report the prior acts of domestic violence in evaluating her credibility concerning the past acts. It is a reasonable inference based on common sense. "Common sense need not be ignored by the judge as a factfinder any more than by a jury." Fort Lee, supra, 311 N.J. Super. at 288. Where we question the judge's determination on the issue is the amount of consideration that he gave to the failure to report.

The record indicates that the judge gave the factor considerable weight, almost treating the factor as the sole factor in determining credibility, rather than just one among many. Nor did the judge explain why he did not consider plaintiff's testimony concerning the reasons why she did not report the past acts. Victims of domestic violence suffer in silence for various reasons. Wildoner v. Borough of Ramsey, 162 N.J. 375, 392-93 (2000). Such reasons include the woman's economic dependency upon her abuser, State v. Kelly, 97 N.J. 178, 195 (1984); the victim's feeling of "shame and humiliation, fear of reprisal by [the abuser], or the feeling that [she] will not be believed." Ibid. See also Carfagno v. Carfagno, 288 N.J. Super. 424, 436 (App. Div. 1995) (holding that "fear of the defendant is the center of the cycle of power and control existing in domestic violence situations"). On remand, the judge is to make factual findings as to whether plaintiff did not report the prior acts for other significant reasons.

Reversed and remanded to the trial court for further fact finding and reconsideration consistent with this opinion. We do not retain jurisdiction.

20070621

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