On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-1057-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges Graves and Sabatino.
Defendant Tonya Knox appeals from a final restraining order (FRO) entered on January 25, 2007, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Although we usually "accord deference to family court factfinding," Cesare v. Cesare, 154 N.J. 394, 413 (1998), our review of the record in the present matter has convinced us that defendant has raised valid issues regarding the fairness of the proceedings and the sufficiency of the evidence to support the court's findings. We therefore reverse and remand for a new trial.
Prior to the issuance of the domestic violence complaint and temporary restraining order (TRO) on January 15, 2007, the parties, who are married, resided together with their two daughters: thirteen-year-old Susan*fn1 and nine-year-old Emily. In his domestic violence complaint, plaintiff Roderick Knox alleged that his wife had physically assaulted him "and their daughter on multiple occasions," made "terroristic threats in regard to continued assaults," and randomly destroyed "property belonging to the plaintiff and their children." Plaintiff's complaint also alleged that defendant had committed the following offenses: assault, terroristic threats, and criminal mischief, but the complaint did not specify any dates or time frames when the acts of domestic violence allegedly occurred. Plaintiff's complaint also indicated there was a prior history of domestic violence consisting of "[m]ultiple domestic violence incidents."
On January 25, 2007, the return date of the TRO, each of the parties appeared in court without counsel, and they were the only witnesses to testify. Plaintiff testified he was requesting a final restraining order because his wife had been "verbally, physically, and mentally abusive to my kids and me." On the other hand, defendant testified, "my kids are not afraid of me at all. If anything, they're afraid of him." Defendant also testified that she had previously dismissed a restraining order that she obtained against her husband because "[h]e agreed to go to anger management, but he never went. Then he puts it on me. Okay. He's saying that he defends [himself]. Okay. He's 200 pounds more than me, darn near, you know."
The trial judge, who was understandably concerned for the welfare of the parties and their children, found that neither party was solely responsible "for the long history of antagonism that you two have experienced." The court also made the following findings:
The only thing . . . that is in my discretion is to determine whether, [Mrs.] Knox, based upon the testimony of Mr. Knox, and based upon my assessment of the credibility of both of you, and very frankly, I think in the large both of you testified honestly, but from different perspectives. But I do determine that . . . Mr. Knox's testimony was credible. I think your testimony was largely credible, but I think that you have maybe perhaps underestimated the impact that some of your behavior, which I think was instigated by your dislike for your husband, has upon your children and that is really what concerns me. I'm concerned about . . . [Susan's] notes, which I have here. Clearly, she is bearing witness to a relationship which is toxic for her and for [Emily].
So, therefore, I am going to grant a permanent restraining order. I think that it's necessary to preserve the peace, to tell you the truth, in this particular situation. I do believe that there have been acts of harassment pursuant to [N.J.S.A.] 2C:33-4, which have been created utilizing as instrumentalities of that harassment the children of this marriage, [Emily] and [Susan]. Insofar as terroristic threats, I also think that there are . . . various threats for crimes of violence under [N.J.S.A.] 2C:12-3. Insofar as . . . the alleged assaults on Mr. Knox and on the children, disciplining children is a difficult thing. I'm not getting in the middle of that one. Whether it was justified or not justified I'm not going to rule as to whether that was justified disciplining of the children. Clearly, I have to tell you reading the account that I have here, which was [Susan's] account, I think it may have been excessive. But look, I've been there. I understand when your kid loses something that's valuable, you get irritated. But the bottom line is here I am going to grant a final restraining order. I think you two need to be separate.
On appeal, defendant contends that the "well-meaning [j]udge attempted to separate the parties in order to 'protect the peace,'" but the Domestic Violence Act does not provide relief on that basis. Defendant also claims the trial court erred in finding that she had committed acts of harassment in violation of N.J.S.A. 2C:33-4, because plaintiff's complaint, which was never amended, did not designate harassment as a predicate offense. We find these arguments persuasive. As we have previously indicated, "it is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint." L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999); see also H.E.S. v. J.C.S., 175 N.J. 309, 325 (2003) ("'[i]t constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.'") (quoting J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998) (alteration in original)). Moreover, the record does not reveal what facts the court relied upon in determining that defendant made terroristic threats.
We also conclude the court should not have considered the hearsay statements contained in Susan's diary. Susan did not testify during the trial, and it is clear from defendant's testimony that she wished to challenge the accuracy of the statements attributed to her daughter: "First of all, when she wrote that, who's to say when she wrote it, you know, that when I was out of the house for ten days that he didn't tell her, well, say this and say that and write that down. Who's to say that?"
The trial court undoubtedly exercised its judgment with the best of intentions. Nevertheless, given the court's credibility determinations, it is likely that the court was inappropriately influenced by the inadmissible statements in Susan's diary. Thus, our reading of ...