June 10, 2008
EDDA VILLAGOMEZ, PLAINTIFF-APPELLANT,
EZEQUIEL ROMERO, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-1659-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 27, 2008
Before Judges Gilroy and Baxter.
Plaintiff Edda Villagomez appeals from a March 28, 2007 order that denied her request for a domestic violence final restraining order (FRO) and dismissed a previously-entered temporary restraining order (TRO). We affirm.
Plaintiff and defendant Ezequiel Romero previously resided together. A daughter, now age eight, was born of their relationship. Plaintiff also has a son, now age nine, born of a different relationship. On February 11, 2006, after defendant returned the two children to plaintiff after their visit with him, the son informed his mother that defendant stated he was going to kill her. The younger child confirmed the statement. Because of a past history of domestic violence, plaintiff filed a request for a TRO, in which she alleged defendant made a terroristic threat, namely the statement reported by the children. A judge issued a TRO.
At the hearing on the FRO, although neither child testified, the trial judge permitted plaintiff to testify to what her son told her defendant had said. Based upon that hearsay testimony, the judge found that defendant had committed a predicate act of domestic violence. Consequently, the judge entered a FRO. On appeal, we reversed and remanded for a new trial, determining that the admission of the hearsay statement of the son was reversible error. Edda Villagomez v. Ezequiel Romero, No. A-3972-05 (App. Div. January 30, 2007).
On remand, pursuant to the agreement of the parties, the court permitted the son, then eight years old, to testify in chambers, where he was cross-examined by the attorney who represented defendant. The child explained that on the day in question, he and his sister were in the back seat of defendant's van when he heard defendant speaking on his cell phone to an unknown third party. According to the child, defendant told the person on the other end of the phone, "I'm going to kill their mother." When the child was asked by the judge whether he "believed that [defendant] was talking about you and your sister" when he said "their mother," the child answered yes. After the son's testimony was concluded, the judge and the parties agreed that it was not necessary to interview the other child.
Plaintiff also testified on remand. She explained, as she did at the first trial, that within a half an hour of the children returning home from their visit with defendant, they started to cry and tell her that defendant said he was going to kill her. She added that she believed those threats because of the way defendant had acted in the past. According to plaintiff, there were incidents in 2000 and 2001 when she sought a TRO after defendant punched her and caused bruises. She acknowledged that neither of those requests for a FRO was granted. One was dismissed by the court because of insufficient proofs and plaintiff voluntarily dismissed the other.
At the conclusion of the testimony, the judge made findings of fact and dismissed the TRO:
[The son] testified that . . . he heard [defendant] talking on the cell phone one day while he was in the back of the car and into the cellphone [defendant] said words to the effect of, quote, I'm going to kill their mother, close quote. So this was not a communication made to the children directly. It was made in their presence and it was not made to [plaintiff]. That's what we know now.
I thought the [plaintiff's son] not only was a very credible witness, but is . . . a terrific kid. [A]nd I believe him. I have no problem . . . saying this was an act of terroristic threat if [defendant] turned to the children and said, you know what, I'm going to kill your mother one day. Because clearly that would be intended, I can infer easily, to upset them with the intention that it be communicated to [plaintiff]. But that's not what [the son] told us. [He] said that [defendant] was on the phone. He was speaking to somebody else, we don't know who it was. And [the child] overheard this. I have no reason to doubt that [defendant] said the words, I'm going to kill their mother to somebody on the telephone as [the child] said. . . . And . . . while an adult may think that it was the equivalent of . . . [defendant] bad mouthing [plaintiff] to another adult, to a child, certainly overhearing that, -- I can understand how it would be frightening. But it doesn't rise to proof that [defendant] intended for [plaintiff] to be threatened with a crime of violence . . . .
So, I can't find, giving all favorable inferences to the plaintiff of the testimony presented, that there was any proof of any intention to terrorize [plaintiff] or even the children. [H]e was on the phone. He was talking to whoever he talked to and opened up his big mouth, said some horrible things without considering . . . the children. And I think it's wrong. I think it's improper. I think it's insensitive. I'm not happy about it in the least bit. I believe it happened but it is not an act of terroristic threat.
"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). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).
A plaintiff seeking a FRO under the Prevention of Domestic Violence Act (Act)*fn1 must establish that the defendant committed an act of domestic violence. The Act defines domestic violence as the commission of any one of the thirteen crimes and offenses that are enumerated in N.J.S.A. 2C:25-19(a). Terroristic threats, N.J.S.A. 2C:12-3, is among the thirteen predicate offenses that, if proven, entitles a plaintiff to the entry of a FRO. N.J.S.A. 2C:25-19(a)(3).
The crime of terroristic threats is committed when a person "threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out." N.J.S.A. 2C:12-3(b). "Proof of terroristic threats must be measured by an objective standard." Cesare, supra, 154 N.J. at 402. "The pertinent requirements are whether: (1) the defendant in fact threatened the plaintiff; (2) the defendant intended to so threaten the plaintiff; and (3) a reasonable person would have believed the threat." Ibid.
We turn first to the trial judge's finding that plaintiff did not demonstrate that defendant intended to threaten her when he made the remark in question. The judge focused on the testimony that established defendant was on his cell phone speaking to an unspecified third party and that he was not communicating directly with the children. The judge concluded that plaintiff did not prove defendant intended to threaten her when he made the offending remark. We discern from the judge's findings a conclusion that the required element of intent to threaten plaintiff was not established because the record is devoid of any of the following evidence: a description of defendant's tone of voice, the balance of his conversation with the unnamed third party, or even how loudly he was speaking and whether he would reasonably have expected the children to overhear his remarks. While we recognize that plaintiff's son was only eight years old at the time he was being questioned, we also recognize that nothing prevented plaintiff's counsel from asking him those questions, none of which involved particularly sensitive matters.
In light of the absence of contextual details, we cannot find fault with the judge's conclusion that the evidence was not sufficient to support the required element of intent to threaten. Nor do we disagree with the judge's observation that the remark in question can constitute the type of "bad mouthing," or hyperbole, that is sometimes uttered by those whose relationship with a former partner has soured. We agree that not all such remarks are intended as threats. For these reasons, we find no meritorious basis upon which to disturb the judge's finding that plaintiff's proofs did not satisfy the element of intent to threaten. In so concluding, we remain mindful "[b]ecause a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify', it has a better perspective than a reviewing court in evaluating" the testimony of witnesses. Id. at 412 (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Consequently, "[t]he appellate court should 'exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter.'" Ibid. (quoting Rova Farms, supra, 65 N.J. at 484).
In so holding, we disagree with plaintiff's contention that the judge denied her request for the FRO solely because the terroristic threat was not made directly to her, but rather indirectly through the children. We do not read the judge's findings so narrowly. The judge's use of the descriptive term "bad mouthing" demonstrates that the judge properly focused on defendant's state of mind and intentions when defendant made the remark and that the judge did not deny the FRO because the threat was uttered to a third party rather than to plaintiff directly. Accordingly, we need not consider either McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007) or State v. Milano, 167 N.J. Super. 318, 323 (Law Div. 1979), aff'd, 172 N.J. Super. 361 (App. Div.), certif. denied, 84 N.J. 421 (1980), both of which hold that a threat communicated to a third party may in appropriate circumstances be sufficient to require the granting of a FRO.
Finally, plaintiff argues that the judge erred in barring testimony of defendant's prior acts of domestic violence. In light of our conclusion that the judge did not err when he concluded that the proofs were not sufficient to support a finding that defendant acted with the requisite intent, we need not reach the issue of whether the exclusion of such evidence was error. This is so because evidence of prior acts of domestic violence becomes relevant principally when a court is faced with the question of whether a reasonable person in the plaintiff's circumstances would have been alarmed by the comment in question. See Cesare, supra, 154 N.J. at 403. Here, because the court concluded that plaintiff did not prove defendant intended to threaten her, there was no need to consider the element of whether a reasonable person would have been alarmed by the remark. See id. at 402.
We recognize that evidence of prior incidents of domestic violence also plays a role in assisting the court in its evaluation of the present complaint. Cesare, supra, 152 N.J. at 401-02. Here, we are satisfied that if there was any error in excluding the proffered evidence, it was harmless because plaintiff was permitted to describe the 2000 and 2001 incidents in some detail.
The judge barred evidence of the one remaining prior act of domestic violence because plaintiff had not provided notice that she intended to rely upon such prior incident. Our basis for concluding that such evidence was properly barred is a different reason than the judge provided. Nonetheless, we affirm judgments, not reasons. State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002). We are satisfied that the exclusion of evidence of the one prior incident of domestic violence was not error.