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Pesce v. Stilton

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 11, 2007

JANET A. PESCE, PLAINTIFF-RESPONDENT,
v.
DONALD A. STILTON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-425-98C. Donald A. Stilton, appellant pro se.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 9, 2007

Before Judges Gilroy and Baxter.

Defendant Donald A. Stilton appeals from the September 8, 2006, order of the Family Part that among other matters: 1) denied his motion for dissolution of the final restraining order (FRO) that was entered against him on July 31, 1998, pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff Janet A. Pesce; 2) denied his motion for free transcripts of the FRO hearing; 3) directed that he obtain leave of court before filing any further motions in the action; and 4) entered a judgment against him in the amount of $23,875 for failing to pay attorney fees and costs pursuant to prior court orders. We affirm in part; reverse in part; and remand the matter to the trial court for further proceedings consistent with this opinion.

Plaintiff and defendant commenced their relationship in June 1994, over the telephone, while defendant was incarcerated in a New Jersey state prison, serving a thirteen-year term of imprisonment on convictions of burglary, theft, and assault.*fn1 Following a three-year on-again/off-again dating relationship, plaintiff filed a domestic violence complaint against defendant on August 27, 1997. One child, B.P., was born of the relationship on July 10, 1997. A temporary restraining order (TRO) was entered the day the complaint was filed, granting plaintiff temporary custody of B.P. A ten-day final hearing was conducted between January 8, 1998 and February 4, 1998, during which the trial court heard testimony from twelve witnesses and considered over 175 exhibits. On the last day of the hearing, the trial court entered an order that, among other matters: 1) reserved decision on whether defendant had committed an act of domestic violence; 2) awarded plaintiff custody of B.P., pending further order of court; and 3) referred the issue of parenting time, both as to defendant and B.P.'s paternal grandparents, to the Preventive Dispute Resolution Unit of the Ocean County Family Part for an investigation and a report.

On July 31, 1998, Judge Fall rendered a twelve-page, single-spaced, written opinion in which he considered the exhibits introduced into evidence; analyzed and made credibility determinations concerning the witnesses' testimony; and concluded that defendant had committed the predicate act of harassment. In reaching his conclusion, Judge Fall stated:

The credible evidence discussed above supports plaintiff's domestic violence complaint based on harassment. The [c]court finds plaintiff, starting in January[] 1997, attempted to terminate her relationship with defendant, and he resisted. She was pregnant with defendant's child and was vulnerable, wavering occasionally under the almost constant pressure of his letters and telephone calls. However, by May[] 1997[,] it was clear the relationship was over and that plaintiff had made it very clear to defendant to stop calling and to stop writing and otherwise bothering her. He purposely persisted nevertheless, virtually daring plaintiff to seek a restraining order. It was made very clear to defendant that his actions were annoying plaintiff, were disturbing, irritating and bothersome. Yet, he nevertheless continued. He was unable to take no for [an] answer. He wa[s] attempting to wear her down, to make her do as he wished. Finally, when it was clear that no amount of pleading would stop defendant from annoying and bothering her, plaintiff filed the subject domestic violence complaint. Looking at the totality of the circumstances of this case and the history of threatening and abusive behavior, plaintiff's fears and desire to be left alone are justified. Defendant is a compulsive, relentless person. The [c]court is completely convinced he will never voluntarily leave plaintiff alone, but rather will continue to attempt to interface with her on a regular, if not daily basis. His reams of letters and inordinate amount of telephone calls to plaintiff, largely in the face of protests by plaintiff, conclusively demonstrate that conclusion. Many of his own letters during that period apologize for his behavior. He is a driven person, with an almost constant need to demonstrate he is right and anyone who disagrees with him is wrong. He embarks on a relentless examination of minutia to justify his conduct. By his own admission he has been diagnosed with psychiatric conditions that such conduct is symptomatic of. He testified Dr. Munoz . . .

[d]iagnosed him with a bi-polar disorder with obsessive characteristics. Defendant is a driven person, obsessed at getting what he wants. He has not hesitated to commit criminal acts in the past to satisfy his obsession. The past acts of control, and violence, by defendant towards plaintiff justify her fears. A Final Restraining Order is hereby entered.

Judge Fall also determined that the issue concerning defendant's visitation with his daughter would be re-listed upon his release from prison. A confirming order was entered the same day. On December 10, 1998, defendant was found guilty of violating the FRO.

In November 2000, after his release from prison, defendant filed a motion for visitation with B.P., consistent with the order of July 31, 1998. The motion was denied by order of January 18, 2001, the trial court determining that all conditions contained in the July 31, 1998, order, concerning defendant submitting to substance abuse, psychological and psychiatric evaluations, had not been complied with.

On May 17, 2001, defendant moved for supervised visitation with his daughter. On May 31, 2001, the trial court entered an order denying defendant's motion pending submission of a psychological evaluation pursuant to the order of July 31, 1998. "To that extent, the [c]court shall appoint a forensic psychologist with a background in custody evaluation cases to prepare an evaluation of the parties to determine the best interest of [B.P.] as it relates to visitation requested by defendant . . . ." On August 29, 2001, an order was entered granting defendant supervised visitation with his daughter at the Ocean County Courthouse, under the supervision of the Ocean County Supervised Visitation Program. During the first half of 2002, defendant exercised his right to supervised visitation with his daughter.

During the pendency of the visitation matter, defendant submitted to psychological evaluations by Dr. Ralph Fretz, a psychologist, on October 29, 2002, November 6, 2002, November 20, 2002, January 9, 2003, and March 12, 2003. In a report dated February 27, 2004, Dr. Fretz summarized his evaluations of defendant. Although Dr. Fretz opined that defendant "did not exceed the actuarial threshold for psychopathy," he did determine that there was a "moderate probability that [defendant] has an Anti-Social Personality Disorder. His probability is increased by his history of serious infractions*fn2 within the [State prisons]." Dr. Fretz submitted copies of his reports to Dr. Mark White, a psychologist retained by plaintiff.

Dr. White submitted a report dated September 19, 2003, in which he described the purpose of his evaluation as, "a risk assessment around the issue of introducing [B.P.'s] father, Donald Stilton, into a significant role in her life at this immediate stage in her development, and secondarily around the issue of the potential assets and liabilities of Mr. Stilton as a parent." After determining that defendant "cannot be considered a psychological parent to [B.P.]" because "[h]e virtually had no contact with her until she was approximately four years old, and then intermittently over the course of approximately eight months," and that B.P. was in her developmental stage, the doctor stated:

With this understanding, with the understanding that [B.P.] experiences no bond to Mr. Stilton as a psychological parent, and with the understanding that [B.P.'s] mother is terrified of Mr. Stilton (based on the reality of his behavioral history) and his potential impact on [B.P.], and also factoring in the findings of Dr. Ralph Fretz, it is the professional opinion of this psychologist that currently the risks of harm to [B.P.] by virtue of her experiencing overwhelming affects over a significant number of years outweigh any potential benefit that might be hypothetically connected to the imposition of ongoing contact with Mr. Stilton at this time in her life. These affects will predictably have harmful impact on the ultimate outcome for [B.P.], in terms of her adult adjustment, to a high degree of psychological probability.

The probability of harm to [B.P.] is increased by the deficits and limitations of Mr. Stilton. While he does not explicitly meet the DSM-IV criteria for Anti-Social Personality Disorder, his history clearly reflects significant levels of anti-social behavior, substance abuse[,] potential[] anger and physical aggression issues, interpersonal relationship instability, general deficits of social judgment and skills, and an elevated probability of recidivism and re-incarceration.

From the risk/benefit point of view, the most protective recommendation would be to postpone the issue of visitation until [B.P.] is much older. In this psychologist's opinion, she should be located firmly in her adolescence before direct contact between [B.P.] and her father is again attempted. By this time, not only will [B.P.] be psychologically better defended, but Mr. Stilton hopefully will have established a history of stability and a pattern of behavior that mitigates against the current concerns about him and his fluid circumstances.

In conclusion, Dr. White recommended that "face-to-face direct contact with [Mr. Stilton] (supervised or otherwise) should not occur until [B.P.] has developed a more mature personality defense structure that includes expectable adolescent defenses against anxiety and psychological conflict." On April 5, 2004, the court-appointed Guardian ad Litem recommended that the court not grant defendant any visitation with B.P. "Unfortunately for [B.P.] the bond with the [d]efendant, as her father, has not been maintained. His behavior towards her borders on obsession with 'winning' visitation over the objection of Ms. Pesce, rather than based on a genuine desire to be a loving father." The Guardian ad Litem continued, "[B.P.] should not be a pawn in a game. She is not a prize to be won or lost. Respectfully, it is the recommendation of this Guardian that the court not grant the [d]efendant any visitation with [B.P.]." On December 22, 2004, the trial court entered an order that, among other matters, directed:

That pending further order, the defendant shall not have any contact with [B.P.], either supervised or otherwise, until she has attained at least [thirteen] years of age, after the completion of the latency age of her childhood development. Once [B.P.] has reached the age of [thirteen], defendant may apply to the court to consider the appropriateness of institution of direct contact between defendant and [B.P.].

No appeal was taken from the December 22, 2004, order.

On June 24, 2006, while still incarcerated in the East Jersey State Prison, Rahway, defendant filed a motion seeking an order: 1) dissolving the FRO pursuant to N.J.S.A. 2C:25-29d; 2) granting him free transcripts of the domestic violence final hearing; 3) enforcing prior orders against plaintiff; and 4) amending the December 24, 2004, order to allow supervised visitation. On July 25, 2006, the trial judge issued a written opinion, denying defendant's application for free transcripts, stating that she could resolve the matter based on Judge Fall's twelve-page written opinion, in which he made detailed findings of fact and conclusions of law. Plaintiff filed a cross-motion requesting that the court: 1) require defendant to obtain leave of court prior to filing any further motions in the action; 2) determine that defendant had violated plaintiff's litigant rights by filing his motion in contravention of the prior order of December 22, 2004, directing that defendant not have any contact with B.P. until she reaches thirteen years of age; 3) determine that defendant had violated plaintiff's litigant rights by not paying court ordered counsel fees and costs; and 4) enter judgment against defendant in the amount of $23,875, representing the amount of unpaid counsel fees and costs.

On September 8, 2006, the trial judge entered an order that denied defendant's motion in its entirety; directed defendant to obtain leave of court prior to filing any further motions in the action; and entered judgment against defendant in the amount of $23,875, said sum representing attorney fees and costs previously awarded to plaintiff under prior court orders.

I.

On appeal, defendant argues:

POINT I. [THE JUDGE'S] DECISION MUST BE REVERSED AS HER ORDER VIOLATES THE LEGISLATIVE INTENT ALLOWING PARTIES TO DISSOLVE RESTRAINING ORDERS FOR GOOD CAUSE SHOWN PURSUANT TO N.J.S.A. 2[C]:25-29(d).

POINT II. [THE JUDGE] IMPROPERLY DENIED APPELLANT TRANSCRIPTS THAT SHOULD HAVE BEEN CONSIDERED PRIOR TO MAKING A DECISION TO DENY DISSOLUTION OF A RESTRAINING ORDER.

POINT III. [THE JUDGE] ERRONEOUS[]LY DENIED TO ENFORCE AN ORDER OF THIS COURT WHERE RESPONDENT IS FAILING TO COMPLY WITH AN ORDER THAT DOES DIRECTLY DENY APPELLANT A LIMITED AMOUNT OF PARENTAL RIGHTS.

POINT IV. [THE JUDGE'S] ORDER TO ENFORCE PRIOR ORDERS OF THIS COURT[,] DEPRIVING APPELLANT OF ANY CONTACT WITH HIS DAUGHTER[,] DENIES HIM HIS CONSTITUTIONALLY SECURED RIGHTS AND [IS TANTAMOUNT] TO AN ILLEGAL SEVERATION [SIC] OF HIS PARENTAL RIGHTS.

POINT V. [THE JUDGE'S] DECISION TO ENFORCE LITIGANT[']S RIGHTS[,] FORCING APPELLANT TO PAY COUNSEL FEE[]S PROFESSIONAL REPORT[S] AND ENTERING A JUDGMENT AGAINST APPELLANT FOR $23,875.00[,] IS EXCESSIVE AND CONTRARY TO LAW MUST BE REVERSED.

POINT VI. [THE JUDGE'S] DECISION THAT APPELLANT MUST SEEK LEAVE OF COURT BEFORE FILING ANY MOTION IS ARBITRARY AND AN ABUSE OF DISCRETION.

POINT VII. THE ISSUE OF PARENTING TIME AND PARENTAL RIGHTS MUST BE REMANDED BACK TO THE TRIAL COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THE DIRECTIVES OF THE APPELLATE COURT.

POINT VIII. [THE JUDGE'S] FAILURE TO MAKE [] FINDING[S] OF FACT[] AND CONCLUSIONS OF LAW REQUIR[]ED BY R. 1:7-4 REQUIRES REMAND OF THE MATTER AND REVERSAL OF THE ORDER IN CONTROVERSY.

"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. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision below.

Initially, the parties on appeal filed their briefs under the impression that the trial judge had not made findings of fact and conclusions of law supporting the order of September 8, 2006, because the order did not contain a notation that the judge had rendered an oral opinion on the record. The parties' impression, however, was mistaken.*fn3

In Point II, defendant argues that the trial judge erred in denying his request for free transcripts of the ten-day FRO hearing. Defendant contends that because the judge who conducted the FRO hearing was not available*fn4 to decide his motion to dissolve the July 31, 1998 FRO, defendant was required to provide the court with "a complete record of the hearing on which the order was based," N.J.S.A. 2C:25-29d. Defendant asserts that he was, and still is, not financially capable of requesting the preparation of the transcripts of the FRO hearing because he is indigent and presently confined to prison.

The trial judge addressed defendant's request for free transcripts by letter of July 25, 2006. While recognizing defendant's obligation to provide the court with the full record of the FRO plenary proceeding and defendant's indigent status, the judge denied the request, concluding that the transcript was not necessary in this case:

Domestic violence trials are usually expedited proceedings. However, in this matter, Judge Fall wrote a comprehensive 12 page written decision, together with a supplemental two and half page order, memorializing his detailed findings. The written decision summarizes the testimony of virtually every witness. I am satisfied a transcript of the ten-day trial in this matter is unnecessary where Judge Fall took the time to craft such a comprehensive and complete written opinion.

In deciding whether or not a defendant is entitled to a free transcript in a civil matter, the court must consider whether or not fundamental constitution[al] rights are at stake. In denying Mr. Stilton's request for a transcript at public expense, I do not minimize the importance of rights implicated in the domestic violence setting. Certainly, a violation of an order may lead to arrest and incarceration, and the existence of an order may impinge upon other rights normally enjoyed by citizens.

However, each case must turn on its individual facts. In this case . . . the written decision and comprehensive orders entered obviate the need for a transcript of the final hearing. A complete record is presently before this court.

We agree with the judge's decision, denying defendant's request for free transcripts of the FRO hearing. Judge Fall's thoughtful and cogent twelve-page decision analyzes the evidence presented at the FRO hearing, and when taken with all pleadings and orders of the trial court, served as a "complete record" of the FRO hearing. N.J.S.A. 2C:25-29d. Compare Kanaszka v. Kunen, 313 N.J. Super. 600, 606 (App. Div. 1998) where we affirmed a trial court's denial of a defendant's application to dissolve an FRO because defendant had not provided the trial court with a transcript of the FRO hearing. In Kanaszka, because there was confusion as to what had occurred at the FRO hearing, we held that the "complete record" under the statute required as "a minimum, all pleadings and orders, the court file, and a complete transcript of the final restraining order hearing." Here, because of the comprehensive, detailed opinion of Judge Fall, there is no confusion as to what had occurred at the plenary hearing. Accordingly, the transcripts were not required for the trial judge to decide defendant's motion seeking to dissolve the FRO.

As to the merits of defendant's motion seeking to dissolve the FRO, we agree with the trial judge's decision of September 8, 2006, that the mere passage of time from the entry of the FRO does not constitute "good cause" under the statute. N.J.S.A. 2C:25-29d. Plaintiff remains in fear of defendant, and defendant has accumulated numerous prison infractions, some of which involve violence. We conclude the trial judge correctly denied the motion to dissolve the restraining order.

Initially, in Point VIII, defendant had argued that we should reverse the order of September 8, 2006, because the judge, with the exception of that part of the order denying his application for free transcripts, failed to state her findings of fact and conclusions of law when she denied his motion and granted plaintiff's cross-motion. As stated previously, the judge placed her findings of fact and conclusions of law on the record. A copy of the transcript has been provided to the parties. Accordingly, except to the extent discussed below, we reject defendant's contention.

Paragraph No. 3 of the September 8, 2006, order provides that "[t]he defendant is required to obtain leave of the court prior to filing any motion in this matter." For reasons that are unknown, the judge failed to provide any findings of fact or conclusions of law supporting that injunctive provision of the order. R. 1:7-4(a).

Courts have the inherent authority, if not the obligation, to control the filing of frivolous complaints. Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 390-97 (App. Div. 2000). Generally, this responsibility falls on the Assignment Judge of the vicinage who has the "plenary responsibility for the administration of all courts" within the vicinage.

R. 1:33-4(a). However, the power to enjoin frivolous litigation must be exercised sparingly to protect the "constitutional right to access of the courts." Rosenblum, supra, 333 N.J. Super. at 390. Courts may not completely prohibit a litigant from filing a future complaint without providing for judicial review of its merits. Ibid. Accordingly, where a litigant has established a pattern of pursuing frivolous litigation and the Assignment Judge of the vicinage has assured himself or herself "that more judicial sanctions will not protect against frivolous litigation," the Assignment Judge may enter an order prohibiting the litigant from filing new complaints without first obtaining judicial approval. Id. at 396. Simply stated, a court may not completely preclude a litigant from filing future lawsuits, only that the litigant obtain leave of court before doing so in order to assure that the matter has merit. Id. at 391-97.

Here, the court did not prohibit defendant from filing future complaints, only from filing future motions in an existing action without prior leave of court. We are satisfied the principle of Rosenblum applies, although the order need not require the prior approval of the Assignment Judge, only the trial judge presiding over the existing matter. D'Amore v. D'Amore, 186 N.J. Super. 525, 530 (App. Div. 1982); Kozak v. Kozak, 280 N.J. Super. 272, 277-78 (Ch. Div. 1994), certif. denied, 151 N.J. 73 (1997).

D'Amore concerned post-judgment motion practice. The defendant, a former husband, had cross-moved against his former wife seeking to enjoin her from making future motions, asserting that she was filing the motions solely to harass him. D'Amore, supra, 186 N.J. Super. at 529. The trial court granted the husband's motion by issuing an order prohibiting the plaintiff "from filing any future harassing motions against defendant in the future." Ibid. On appeal, we held that "[t]here is, of course, no question of the power of the court to enjoin perspective harassing litigation. But that power must be exercised consistently with the fundamental right of the public to access to the courts in order to secure adjudication of claims on their merits." Id. at 530. Nevertheless, we reversed, determining that the restraint was too broad and too ambiguous. Id. at 531.

In reversing, we stated that there are "two circumstantial categories of enjoinable litigation." Id. at 530. "The first includes attempts to litigate claims despite their preclusion by such legal doctrines as res judicata. The second includes claims[,] which are already pending or are about to be instituted in another forum whose jurisdiction thereover is superior or prior." Ibid. Accordingly, we determined "it is only prospective litigation of specifically identified claims which is susceptible to restraint, and then only after those claims have been determined to fall within one of the recognized categories of objective harassment. A nonspecific and nondiscrete injunction against prospective litigation generally is patently insustainable." Ibid.

An injunction against future motion practice should be tailored to matters that fall within one of the two recognized categories of objective harassment in order that the party restrained is, "appr[ised] [of] the consequences of his [or her] conduct with reasonable certainty." Id. at 531. A general prohibition against filing future motions does not meet that standard. A party possessing "a future legitimate grievance" against another party to an action must be free to pursue the claim without running the risk of finding that he or she has "committed a contempt of court by doing so." Ibid. Because the prior restraint was not tailored to prohibit defendant from filing motions within one of the two categories of objective harassment and because the trial judge did not state her findings of fact and conclusions of law for granting injunction, we reverse Paragraph No. 3 of the order of September 8, 2006, and remand the matter to the trial court.

Because the judge who entered the September 8, 2006, order has since retired from the judiciary, the issue will have to be addressed by another judge sitting in the Family Part. We recognize the burden that the remand may place on that judge's calendar. However, we are not able to discern the motion judge's reasons in deciding the matter as she did. Therefore, reconsideration of that part of plaintiff's motion, in light of the full record of the proceedings between the parties, is the only remedy available.

We affirm the order of September 8, 2006, except for Paragraph No. 3; we reverse and remand Paragraph No. 3 to the trial court for further proceedings consistent with this opinion.*fn5 We do not retain jurisdiction.


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