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D.S. v. K.P.


July 24, 2007


On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Mercer County, FV-11-1073-04, FV-11-1074-04.

Per curiam.



Submitted May 15, 2007

Before Judges Weissbard and Payne.

Defendant, K.P., appeals from the entry of a final domestic violence restraining order against him, pursuant to N.J.S.A. 2C:25-29, and from the denial of his motion for reconsideration of that order. On appeal, he raises the following arguments:





A. The Trial Court Erred in Not Considering the Credible Evidence Which Created the Inference that Plaintiff Filed the Domestic Violence Complaint to Gain an Advantage in the Parties' Civil Litigation.

B. The Trial Court's Finding that Defendant Did Not Satisfy His Burden and Prove That an Assault Occurred Disregarded the Credible Evidence Presented and Constituted a Misapplication of the Law.

We affirm.

Plaintiff, D.S., and defendant, K.P, maintained an eleven-year romantic involvement while also working together as business partners. On February 12, 2004, D.S. filed a complaint seeking the entry of restraints against K.P., pursuant to the provisions of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. A similar complaint was filed by K.P. on February 18, 2004.

The matters were heard on March 11, 2004, at which time both parties were represented by counsel. At the hearing, testimony was presented by D.S. and K.P., as well as by two other witnesses. At the conclusion of the hearing, the Family Part judge granted a final restraining order to D.S., finding that she had established harassment by K.P. occurring on January 15, February 3 and February 8, 2004, as well as a history of domestic violence. The judge denied similar relief to K.P., finding that he had failed to establish either assault or harassment sufficient to meet the Act's requirements. In doing so, the judge credited the testimony of D.S., but not that of K.P. Following a motion for reconsideration, on June 7, 2004, the judge issued a lengthy written opinion in which she affirmed her prior conclusion that conduct constituting harassment arising from a course of alarming conduct had been proven by D.S. See N.J.S.A. 2C:33-4c and 2C:25-19a(13).

Testimony at the hearing supported the judge's finding that acts of domestic violence directed at D.S. had occurred on January 15, February 3 and February 8, 2004. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). According to the testimony of D.S., following the deterioration of the relationship between her and K.P., in early January 2004, she sought its end, claiming that a relationship with a married man such as K.P. was "an immoral situation," and that she wished to marry and have children. K.P., according to D.S., "pretty much went ballistic." D.S. stated that K.P. "threaten[ed] me on the phone that if I did not stay with him he would take me down and destroy me. He would take everything from me and make sure that I had nothing. But if I stayed with him everything would be fine." D.S. continued:

After I . . . initially told him[,] it started an ongoing conversation of why are you leaving? I want you to stay. I want to work this out. If you don't stay, I'm going to . . . take you down, destroy you, leave you with nothing. You're a worthless piece of shit. You can't run a business to save your life. I created you and without me you're nothing. And it was hot and cold. One day he was nicey nice, come back to me, and the next day[,] if I wouldn't submit[,] the onslaught of everything that I described would happen.

He accused me of cheating on him with a gentleman named Eli who I had only ever spoken to on the telephone. That I only had started talking to at length on or about November 17th. He told me that Eli was the reason that I was ending our relationship. And that he wanted to know all about Eli . . . because he was the problem.

The record discloses that the parties had agreed to meet on January 15, 2004 to discuss the dissolution of their businesses -- a step that K.P. stated was necessary as the result of the deterioration of their personal relationship. D.S. was late for the meeting, having determined to obtain legal advice before speaking with K.P., and K.P. had left the meeting place prior to her arrival. They did, however, speak later by telephone and, as was their wont, they argued. Later in the afternoon, K.P. arrived at the home of D.S. and her mother, brandishing a rent bill for the parties' Manhattan office that D.S. was to have paid. When D.S. refused to permit K.P. to enter the house, he proceeded to call D.S. a "fucking little bitch," a "whore," and a "cunt," and he accused her of "fucking that guy in Indiana [Eli] as well as half the rest of the state." Although D.S. requested that K.P. leave the property, he refused to do so, pacing in circles between the porch and the driveway while loudly threatening to inform D.S.'s mother of her true nature and sexual activities with a married man and yelling at the top of his lungs "let me inside, I'm going to tell your mom you're a fucking bitch, you're a cunt, you're a slut, you're a slut."

Eventually, D.S. opened the door, throwing a Fortunoff magazine and cordless phone at K.P. while telling him to leave. She testified: "I wanted him to go away. I wanted him to leave, I wanted him to . . . stop saying those things, leave my mother alone, leave me alone, get off the property." The confrontation ended when the police arrived, having been called by K.P. Although K.P. testified that D.S. threatened him with a snow shovel, D.S. denied the charge, and her denial was deemed credible by the judge. Additionally, the judge found that D.S.'s acts of throwing the magazine and cordless phone did not constitute an assault, because K.P. had failed to demonstrate D.S.'s intent to cause injury. No injury occurred.

On February 3, after K.P. was informed by his wife that D.S. was taking boxes from the business, K.P. followed her in his car, confronting her in a local gas station. Then, accurately surmising that D.S. had seen an attorney regarding the parties' business dealings, he traveled from Princeton to Secaucus in pursuit of her. While on Route 3, K.P called D.S. on her cell phone stating:

Look, something horrible has happened, that's why I've been trying to find you, I really need to talk to you. I said, [K.] what is the matter. He said, look I don't want you to be driving when I tell you this, I need you to pull over because it's very upsetting and if you don't pull over I'm afraid that, you know, you might have an accident while you're driving.

Upon stopping, D.S. was accosted by K.P., who wedged himself between the mirror and window of D.S.'s car, and stated: "Where the fuck, you bitch, you're a fucking liar, you were at an attorney." According to D.S., K.P. then "lunged" through the window, seized D.S.'s car keys to keep her from driving off and ripped her cell phone from its cradle, entered the passenger side of D.S.'s car, and commenced to riffle through her brief case. Eventually, K.P. threw the keys and cell phone back to D.S., but jumped in front of D.S.'s car when she attempted to re-enter the highway.

A further episode occurred in the early morning hours of February 8, 2004, after D.S. had instructed K.P. not to come to her home. He nonetheless did so. Before it became light, K.P., seeing D.S. asleep on a couch, threw a stone at the window and then banged on the pane until he awakened her, insisting that the two discuss their personal relationship. Eventually, D.S. agreed to do so by telephone but, after a lengthy exchange, ended the conversation by stating that she needed to sleep. Testimony was also provided regarding additional incidents that formed the background of the relationship between D.S. and K.P., but had not been the subject of D.S.'s complaint.

On the basis of this evidence, the Family Part judge found harassment consisting of a course of alarming conduct, committed with a purpose to alarm or seriously annoy D.S., in violation of N.J.S.A. 2C:33-4c. A final restraining order was entered prohibiting contact by K.P. with D.S. and limiting his presence in the parties' Manhattan office to even days. K.P. also was prohibited from possessing firearms and required to surrender his firearms purchaser identification card. Additionally, a $50 civil penalty was imposed. An award of attorney's fees to D.S. in the amount of $5,534 was included in the order affirming the entry of the final restraining order upon reconsideration.

In an argument first raised on appeal, which we have nonetheless determined to consider, K.P. challenges N.J.S.A. 2C:25-29a as unconstitutional as the result of its specification of a preponderance of the evidence standard of proof in domestic violence actions instituted by complainants such as D.S. K.P. argues that, as the result of the placement of the statute within the criminal code and the severity of the penalties imposed upon a finding of domestic violence by a Family Part judge, the more stringent criminal beyond-a-reasonable-doubt standard should have been utilized to evaluate D.S.'s claims.

K.P. argues further that D.S.'s proofs did not meet that enhanced standard.

We do not accept K.P.'s position. In enacting the Prevention of Domestic Violence Act, the Legislature recognized the threat to society posed by domestic violence, and it stated that it is "the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public." N.J.S.A. 2C:25-18. In recognition of its goals, the Legislature provided a self-help mechanism whereby victims of domestic violence, themselves, could, upon filing a complaint alleging acts of such violence, obtain civil remedies, consisting of the entry of a temporary restraining order in an ex parte proceeding and entry of a final restraining order following a hearing on the matter. N.J.S.A. 2C:25-28 and -29a. The Legislature specified that, "[a]t the hearing the standard for proving the allegations in the complaint shall be by a preponderance of the evidence." Ibid.

N.J.S.A. 2C:25-19 defines "domestic violence" as the occurrence of one or more acts constituting enumerated crimes, such as homicide, assault, harassment, stalking, and others. However, the charge of domestic violence, when initiated by a victim "is treated as if it is not a crime." Cesare v. Cesare, 302 N.J. Super. 57, 67 n.6 (App. Div. 1997), rev'd on other grounds, 154 N.J. 394 (1998). Indeed, as John Cannel has noted in his annotations to the Prevention of Domestic Violence Act:

Although it is part of the Criminal Code, very little of Chapter 25 concerns substantive criminal law. The Chapter provides for particular procedures and predominantly civil remedies in cases where those crimes listed at 2C:25-19a have been committed, the person charged and the victim stand in the relationships defined at 2C:25-19d, and the history of the relationship warrants a finding that the safety of the victim is threatened. It does not create new criminal offenses.

[John M. Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:25-17 (2007).]

Our review of the remedies available to a victim filing a civil complaint alleging domestic violence confirms that no criminal sanctions can be imposed.*fn1 Matter of M.D.Z., 286 N.J. Super. 82, 86 (App. Div. 1995).

In Roe v. Roe, 253 N.J. Super. 418 (App. Div. 1992), we addressed the constitutional issue raised by K.P. and found no violation to have occurred as the result of the use of a preponderance of the evidence standard. Id. at 426-28. There, we observed:

Since a domestic violence complaint is pursued as a civil action and civil remedies obtain, the preponderance standard of proof better serves the purpose of the Act in protecting victims of domestic violence. Allegations of domestic violence will frequently be difficult to prove due to the private nature of the offense. There are usually few, if any, eyewitnesses to marital discord or domestic violence, thus enhancing credibility disputes. A criminal standard of proof may be all but impossible for most victims to prove and would undermine the social purposes of the Act. Since criminal sanctions are not imposed, no constitutional problem is presented by the preponderance of the evidence standard.

[Id. at 428.]

We perceive no reason why this view should be altered. When criminal penalties may be imposed, it is appropriate that the standard of proof be one that provides the maximum protection to the accused. A different calculus exists in actions seeking civil restraints on account of domestic violence. There, the focus is legitimately upon providing the maximum degree of possible protection to the victim -- a focus best effectuated by use of a lower standard of proof. See State v. Hoffman, 149 N.J. 564, 584 (1997) (noting that "[o]ur law is particularly solicitous of victims of domestic violence," and that "the purpose of the 1991 Act is to assure the victims of domestic violence 'the maximum protection from abuse the law can provide.'"). "At its core, the 1991 Act effectuates the notion that the victim of domestic violence is entitled to be left alone. To be left alone is, in essence, the basic protection the law seeks to assure these victims." Ibid.

We do not agree that State v. Widmaier, 157 N.J. 475 (1999) and State v. Cummings, 184 N.J. 84 (2005) -- decisions, respectively, applying double jeopardy protections and criminal standards of proof to prosecutions for refusing to submit to a breathalyzer test -- control the outcome of the present challenge. Trials of various aspects of drunk driving charges have long been viewed as quasi-criminal in nature as the result of the penalties imposed, that include incarceration for a period of six months upon conviction of a third offense.

N.J.S.A. 39:4-50. Moreover, consideration of the factors recognized in Widmaier as governing whether a statute is civil or criminal in nature clearly establish that N.J.S.A. 2C:25-28 falls within the former category. 157 N.J. at 493 (citing Hudson v. United States, 522 U.S. 93, 99-100, 118 S.Ct. 488, 493, 139 L.Ed. 2d 450, 459 (1997)).

We perceive no merit in K.P.'s additional argument that the Family Part judge failed to consider credible evidence that D.S. filed her complaint pursuant to N.J.S.A. 2C:25-28 in order to gain an advantage in litigation concerning the break-up of the parties business relationship, determining that the relationship between the two actions was thoroughly discussed in the course of the court's opinion denying relief following K.P.'s motion for reconsideration. We decline to consider evidence of acts allegedly occurring after the court's decisions were rendered.

As a final matter, we reject arguments by K.P. that focus upon the denial of restraints pursuant to his complaint of domestic violence. Even if we were to conclude that a simple assault took place, that conclusion would not require a finding of domestic violence. Bittner v. Harleysville Ins. Co., 338 N.J. Super. 447, 454 (App. Div. 2001). "The law mandates the acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present." N.B. v. T.B. 297 N.J. Super. 35, 40 (App. Div. 1997). Our independent review of the record satisfies us that insufficient evidence existed to support K.P.'s domestic violence claim.


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