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Bursztyn v. Klein


January 30, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-1715-06.

Per curiam.



Argued December 17, 2007

Before Judges Sabatino and Alvarez.

Defendant Yitzchok Klein appeals a Final Restraining Order ("FRO") under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"), issued against him by the Family Part on March 22, 2006. The FRO was procured by plaintiff, Kayla Bursztyn, based upon allegations that defendant repeatedly harassed and threatened her after he moved out of her rented home. Having fully considered the numerous substantive and procedural contentions raised by defendant on appeal, we affirm.

The case was tried on March 22, 2006, following the Lakewood municipal court's issuance of a temporary restraining order in favor of plaintiff sixteen days earlier. In her complaint, plaintiff alleged that defendant "has been stalking and making threatening phone calls to [plaintiff];" that he "has followed [plaintiff] around in town and has even driven three hours out of town to follow [plaintiff] to a summer camp in Woodridge, [New York];" and "also has been harassing [plaintiff] and made offensive comments in reference to her fidelity to her husband." The complaint also referenced a prior incident from July 2004 in which defendant allegedly stalked plaintiff.

The trial was adjourned six days from its original return date at defendant's request because, among other things, he wanted to consider consulting an attorney. He elected to proceed pro se, as did plaintiff. The judge heard testimony from plaintiff, her husband Moshe Burzstyn, and defendant. Both parties were given the opportunity to cross-examine the other witnesses.

During the course of his testimony, defendant acknowledged that he had lived in a rented bedroom in the same house as plaintiff and her husband for about eighteen months, and that he moved out in the spring of 2004. He denied threatening or harassing plaintiff. However, he did admit leaving a single voice message on plaintiff's telephone in June 2004, in which he expressed his displeasure that plaintiff was "maligning [his] name in the community." Defendant also admitted that he had criticized plaintiff, an Orthodox Jewish woman subject to certain religious constraints on her interactions with others, for socializing with a non-Jewish insurance adjustor and for spending excessive time on the Internet. Defendant denied stalking plaintiff in Woodridge, New York, explaining that he had coincidentally been hired to work there at the same Catskills camp where plaintiff and her family were staying.

After considering the proofs, the trial judge concluded that plaintiff had sustained her burden of proof under the Act by a preponderance of the evidence. Consequently, the judge issued an FRO prohibiting further contact by defendant with plaintiff, her husband and their children. In the course of his bench ruling, the judge made the following credibility determinations:

The Court has listened closely and observed the demeanor of all parties who've testified before the Court, including the plaintiff, her husband, as well as the defendant.

The Court's first finding is as follows:

Based on the Court's observations, the reasonableness of the plaintiff's testimony, the reasonableness of her supporting witness, namely her husband, the Court finds the plaintiff, as well as her husband, highly credible witnesses.

They were precise in their testimony. Their recollection was very vivid. The dates provided by the plaintiff were clear and unequivocal. The language she claims was used by the defendant was likewise clear.

To the contrary, the Court finds that the testimony of the defendant was not credible to the extent that it contradicted the testimony of the plaintiff as well as the plaintiff's husband.

The Court observed his demeanor, found his responses to be vague, found him not as clear and lucid, found that in most instances it was clear denial.

With respect to the events in question, the judge made the following pertinent findings of fact, which we repeat here at length:

The Court finds that, indeed, based on the theory of harassment, the plaintiff's proofs succeed. The Court is convinced that her testimony and that of her husband is compelling.

The Court finds that the plaintiff's husband allowed the defendant to utilize a room in their home. In retrospection he apparently now thinks that was a mistake, but that's not the point.

The Court finds that as a result of the fact that the defendant resided in the same household with the plaintiff and her family for a period from approximately September 2002 to May 2004, a period of approximately 18 months, that he was a member of the household, albeit he did not share meals or socialize with the plaintiff and her husband and her three children. But, nevertheless, he slept there at night. He spent time before and after sleeping there.

This Court finds he qualifies as a member of the same household and that he resided in that household within a relatively recent period of time and for a period of approximately 18 months. So, jurisdictionally, the Court finds that this case does qualify for an allegation of domestic violence.

The Court further finds that after the defendant left, in or about May or June of 2004, that he continued to have communication, particularly with the plaintiff.

She has testified -- and the Court believes her -- that he made constant telephone calls and left messages and that these messages were of a seriously annoying and alarming nature.

She claims -- and she strikes the Court as being totally honest -- that he accused [her of] not being worthy to be her husband's wife because, number one, she spent time on the Internet, she spent too much time on the Internet, and that she was friendly with non-Jews.

The Court finds that the defendant has downplayed those accusations, but, nevertheless, he admits that he told her she spent all day on computers. Succinctly put, that's none of his business, and he has no right to make those accusations, implying in some way she is a poor wife or not being noble to religious tenants of her orthodox faith.

The Court further finds that while he denies certain implications of her dealing with non-Jews, nevertheless, he admits saying that she flirted with a non-Jewish insurance adjustor.

The Court finds that that was in retaliation for what he perceives as his name being bandied about within the community. But, nevertheless, there is no such complaint outstanding against the plaintiff. There is a complaint against the defendant. He concedes retaliation. He concedes making that statement.

The Court finds that this caused serious annoyance and alarm to the plaintiff and justifiably so.

She testified she felt frightened, further that he followed her to the grocery store. And while the Court accepts the fact that the defendant has testified there are only perhaps two, three or four grocery stores at which religious Orthodox Jews in Lakewood shop, nevertheless, he had a choice to make. He didn't have to follow her or walk to the very same grocery. He could have selected a different grocery store. It might have been inconvenient. It might have been a few blocks away. But he could have avoided any further contact with her.

Now, the Court is very troubled by the fact that the plaintiff has testified that on one of those occasions he confronted her in the aisle of a grocery store out of the earshot of any other adults.

The Court finds that the plaintiff's expressed concern about that confrontation in the aisle of the grocery store is genuine and that, once again, he accused her of being on the Internet and infidelity, and that she had every reason to be alarmed and annoyed by virtue of those confrontations.

The Court further finds that it is really not contradicted that in the summer of 2005 the plaintiff went to the Catskills with her husband and children and that, lo and behold, who should appear but the defendant. That is more than a mere coincidence. The Court finds, that, based on the troubled relationship between the parties, he should have exercised judgment and avoided any further contact. But he did not do that.

The Court further finds and believes the testimony of the plaintiff that once again they had a conversation and he repeated the same accusations against her, namely, an accusation of infidelity toward her husband and that she was on the Internet all of the time, all of which was designed and purposeful on the part of the defendant to alarm and annoy her.

The Court further finds that the plaintiff's husband testified as a supporting witness as to separate incidents whereby the defendant and the plaintiff's husband were together.

And the Court is very troubled by the testimony attributed to the defendant to the effect that he said that the plaintiff could not hold herself back from complying with Jewish law concerning her relationship with her husband on certain high holy days and/or Sabbaths, that the clear implication of that was that she may be consorting with a gentile. The Court finds those comments true, that they are salacious in nature and that those comments could do nothing but, if brought back to the attention of the plaintiff, cause her serious alarm and annoyance.

The Court further finds . . . . [t]he plaintiff's husband has testified that the defendant told him he took nude pictures of his wife and he'd publish them in the neighborhood. The Court has already found both plaintiff and her husband to be credible witnesses.

The Court finds that this defendant, based on this series of activities, is absolutely out of control.

The Court finds, based on the series of acts, that he has indeed committed harassment upon the plaintiff and her family.

The Court finds the plaintiff's proofs compelling and the defendant's proofs not compelling, in fact, not credible whatsoever.

Based upon all of these findings, the Court finds that the plaintiff has proven the defendant has committed the act of domestic violence by way of harassment and will now enter a final restraining order. The Court will go about doing that at the present time.

Defendant appeals the FRO, now with the assistance of counsel. He argues that (1) he was not a former "household member" with plaintiff subject to the jurisdiction of the Act; (2) the trial judge improperly elicited testimony as to ultimate issues; (3) the judgment is against the weight of the evidence; and (4) the court denied him due process by considering proofs outside the scope of the pleaded allegations. In an amended notice of appeal,*fn1 defendant further contends that the trial court erred in the manner in which it performed a reconstruction of gaps in the trial record and in denying defendant certain discovery in connection with that reconstruction process.

As a threshold matter, we are satisfied that the trial court's reconstruction of the transcript from this pro se trial was performed in a reasonable fashion, consistent with the objectives of R. 2:5-3(f). The reconstruction was conducted because the latter part of plaintiff's direct examination, her cross examination, and the first part of Mr. Bursztyn's direct examination could not be transcribed, due to background sounds on the audio tape recording. On remand from this court, the trial judge reasonably attempted to reconstruct the omitted portions of the record. Although the judge had not retained any bench notes, he obtained written submissions from both litigants and conducted a hearing. Following that process, the judge issued a reconstruction order on June 27, 2007, adopting the mutual reconstructions agreed upon by the parties and also granting some, but not all, of the other reconstructions individually proposed.

Although defendant has criticized the reconstruction in various respects, none of those criticisms warrant relief. In particular, the judge did not err in allowing plaintiff to use her notes regarding the content of defendant's telephone messages, which also were notes that she had consulted during the original trial, to refresh her recollections and thereby assist in the reconstruction. We defer to the judge's discretion in discovery matters, in his determination that plaintiff did not have to turn over her personal notes to defendant. We further sustain the judge's imposition of counsel fees as a sanction for defendant's repeated unsuccessful applications to the court on reconstruction issues that necessitated the services of plaintiff's appellate counsel. N.J.S.A. 2C:25-29(b)(4); see also R. 4:23-1(c).

We also reject defendant's contention that the reconstruction process in this case had to replicate the processes described in certain reported decisions. See, e.g., State v. Casimono, 298 N.J. Super. 22 (App. Div. 1997), certif. denied, 154 N.J. 609 (1998); State v. Izaguirre, 272 N.J. Super. 51 (App. Div.), certif. denied, 137 N.J. 167 (1994). Unlike this pro se case, the judges performing the reconstruction in Casimono and Izaquirre had the benefit of the collaborative efforts of trial counsel, who attempted as officers of the court to piece together the missing testimony from their professional work product and recollections. In sum, we discern no reason to set aside the judge's reconstruction.*fn2

With respect to jurisdiction, the circumstances are more than sufficient to support the judge's finding that defendant was subject to the Act as a former member of plaintiff's "household" under N.J.S.A. 2C:25-19(d). We note that our courts have tended to consider the term "household" in a broad, nonmechanistic manner. Storch v. Sauerhoff, 334 N.J. Super. 226, 235 (Ch. Div. 2000); see also Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 94 (2006) (sustaining a trial judge's finding that a private school functioned as a boarding student's "household," even though no members of his family resided there). "Depending on the factual circumstances . . . parties living in different houses in the same neighborhood or separate apartments in the same apartment complex may be deemed as part of the same household for purposes of the Act." Zappaunbulso v. Zappaunbulso, 367 N.J. Super. 216, 226 (App. Div. 2004) (citing Storch, supra, 334 N.J. Super. at 229-35; South v. North, 304 N.J. Super. 104, 109-14 (Ch. Div. 1997)).

Here, it is undisputed that plaintiff and defendant resided under the same roof. Plaintiff and her husband stated that defendant at times used the kitchen and appliances. Moreover, plaintiff's husband "testified that the [d]efendant used to speak to and play with the children during the time that he lived in the home." By his own admission, defendant, while living on the premises, watched plaintiff interact with her insurance adjustor and spend time on the Internet. It is not dispositive that defendant paid rent for his quarters in the house, or that plaintiff and her husband were themselves renters. Notwithstanding those financial arrangements, defendant clearly maintained a level of interaction with plaintiff's family. He did not have his own separate entry. Indeed, after defendant had moved out and later confronted plaintiff and her husband at the Catskills camp, the husband stated that defendant specifically asked "to come back to the family's home."

Based on these and other factors cited in his ruling, the trial judge found that defendant "qualifie[d] as a member of the same household and that he resided in that household within a relatively recent period of time and for a period of approximately 18 months." We must accord deference to such fact-finding, recognizing "the family courts' special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). The judge's factual findings concerning the household issue are supported by adequate, substantial and credible evidence, and amply justify his legal conclusion that defendant was indeed a former household member. See Tribuzio v. Roder, 356 N.J. Super. 590, 594 (App. Div. 2003) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). The relationship plainly was more than one of a tenant and a co-tenant.

As to the substantive allegations underlying the FRO, we are likewise satisfied that the judge's decision was founded upon substantial, credible evidence. In this regard we note that the Act is designed to "assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18.

Under the Act, N.J.S.A. 2C:25-19(a)(13) enumerates that harassment is one of the predicate offenses that may support a finding of domestic violence and the issuance of a final restraining order. Harassment, in turn, is defined in the Criminal Code to include conduct in which a defendant, "with purpose to harass another[,] . . . [m]akes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4. Hence, a single harassing communication may suffice under the Act. State v. Hoffman, 149 N.J. 564, 580 (1997). Additionally, the offense of stalking, a violation of N.J.S.A. 2C:12-10, is also within the ambit of the Act. See N.J.S.A. 2C:25-19(a)(14). Stalking is defined to include "repeatedly maintaining a visual or physical proximity to a person or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person." N.J.S.A. 2C:12-10(a)(1).

There is ample proof in the record to support the judge's ultimate determination, by a preponderance of the evidence, that defendant harassed plaintiff, confronted her in a threatening manner at a local grocery store, and stalked her at the camp in the Catskills. We reject defendant's argument that plaintiff's proofs were defective because they also alluded to the impact of his aberrant conduct on plaintiff's other family members. Reasonably construed, the proofs are sufficient to show, at the very least, that plaintiff herself was victimized by his wrongful behavior. The circumstances also support defendant's motive and desire to retaliate against her, after he was ejected from her home and she had allegedly disparaged him in her dealings with others.

The remaining issues raised by defendant lack sufficient merit to address at length in this written opinion. R. 2:11-3(e)(1)(E). We simply note in passing that the trial judge did not act unfairly in the manner in which he questioned the pro se witnesses in this case, in his reasonable effort to search for the truth and to ascertain and clarify the parties' contentions. Although the judge's questioning of the pro se witnesses at times was leading or closed-ended, the questioning was not unduly suggestive. We also are satisfied that the TRO and complaint afforded defendant with reasonable notice of the central allegations against him, see H.E.S. v. J.C.S., 175 N.J. 309, 321-22 (2003), and any trial proofs that went beyond the fair ambit of those pleadings are only cumulative.


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