June 26, 2008
LINDA TARVYDAS, PLAINTIFF-APPELLANT,
JAMES CASTIMORE, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-594-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2008
Before Judges Messano and Newman.
Plaintiff Linda Tarvydas appeals from the June 28, 2007, order that dismissed her domestic violence complaint against defendant James Castimore, and vacated the previously-entered temporary restraining order (TRO). She contends the trial judge "erred as a matter of law," by concluding that "the conduct complained of did not constitute an assault . . . or an act of domestic violence requiring the issuance of a final restraining order (FRO)." We have considered this argument in light of the trial record and applicable legal standards. We reverse and remand for further proceedings consistent with this opinion.
On June 14, 2007, plaintiff filed a complaint against defendant pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 through -35. She alleged that defendant had committed a terroristic threat, N.J.S.A. 2C:12-3, by "stating 'I will fucking kill you,'" and had "grabbed [her] left arm attempting to pull [her] from the room." The municipal court judge issued a TRO. On June 19, 2007, plaintiff sought 1) to amend the complaint by adding "assault" as one of the predicate acts of domestic violence, N.J.S.A. 2C:25-19(a); and 2) to supplement the "prior history" portion of the complaint with four, single-spaced, typed pages of details regarding her relationship with defendant from May 2006 through the present. The Family Part judge issued an amended complaint that continued the temporary restraints already in place and set June 21, 2007, as the date for the hearing on the FRO.
After an agreed upon continuance, the parties appeared in the Family Part for trial on June 28, 2007. Plaintiff testified that she and defendant had been engaged for four years, "liv[ing] back and forth" between "Tonopah, Nevada and Sparta." They arrived in Sparta on the morning of June 14, and were staying at a home owned by defendant and his father, Dean Castimore.*fn1
Plaintiff testified that later that evening, at approximately 9:55 p.m., she was in the house when defendant returned home and was preparing himself a sandwich. After some tense conversation, plaintiff claimed that defendant made a "comment about a phone call he had received from [her] brother," "something about money owed," and "started yelling and screaming 'I'm F-ing done. I'm done.'" When she tried to approach him, defendant pounded his fist on the table and told her "get the fuck away from me before I fucking kill you."
Plaintiff claimed defendant was intoxicated, and as she tried to leave the room, defendant "grabbed [her] left arm," and said, "I'll help you leave the fuck now. Get the fuck out of here. You have to go. You get out of this house." Plaintiff broke away and "ran into Dean's room," asking him to calm his son down. Plaintiff testified that she, defendant, and Dean all went into the kitchen where defendant asked his father, "Do we throw her out now, or do we call the cops?" Plaintiff objected and told both of them, "I'm not going."
Before leaving the house for the night, defendant told plaintiff that she had to leave by the next day when he "g[o]t home from work." Plaintiff then called the police who responded and took her complaint. Plaintiff testified that she had a small bruise on her left arm as a result of the altercation with defendant, claimed that she feared for her safety, and that the relationship with defendant was "over."*fn2 The next day, despite obtaining the TRO that permitted her to remain at the home, plaintiff "packed [her] things" and left for her brother's home in "Hopatcong."
Plaintiff described a prior incident with defendant in August 2006, in Nevada, at a truck stop and deli the two owned.*fn3
At that time, she claimed defendant accused her of having an affair, "grabbed [her] arm," and she "fell up against the wall." Defendant threatened to kill her, and called her several derogatory names before she "left the property," and obtained a restraining order. Over the objection of defense counsel, the trial judge admitted into evidence the Nevada "Order for Protection," and several photographs showing bruising on plaintiff's arm as a result of this altercation.*fn4
Plaintiff left Nevada after this incident and came to New Jersey, staying until some time in October 2006, when she drove to Cottonwood, Arizona where the parties owned another home.*fn5
There, she and defendant agreed to reconcile and in November 2006, while back in Nevada, plaintiff "agreed to drop the restraining order" against defendant. While denying any other incidents of physical violence, plaintiff claimed there was "verbal abuse" thereafter with defendant telling her to "get the fuck away from me," denying he loved her any more, and "totally ignoring [her]," and "no[t] communicating." Plaintiff testified that defendant was "mean" and "[n]asty" whenever he drank alcohol.
Plaintiff called no further witnesses, and defendant then testified. He acknowledged that there had been an argument on the night in question regarding a debt plaintiff's brother owed to him. However, he denied ever threatening plaintiff, calling that suggestion "preposterous." Defendant admitted that he told plaintiff to get out of the house and that it "was time to separate company." Defendant claimed plaintiff ran into Dean's room "screaming," and that his father suggested that he call the police, though defendant thought it was not necessary. Instead, he left the house for the evening and stayed at his warehouse business located nearby. Defendant denied ever touching plaintiff that night. Regarding the August 2006 incident, defendant recalled there was an argument about money; but he denied ever threatening plaintiff or assaulting her on that occasion either.
Dean was called as a defense witness and testified that on the night in question, he was asleep when plaintiff came into the bedroom "hollering and screaming." He told both parties to "quiet down" but never heard defendant threaten plaintiff or touch her. Dean's testimony concluded the trial.
The judge began his decision by noting,
I would say that the incident in terms of the physical interaction as alleged was not an acute assault or egregious assault. There was some alleged contact.
I agree with [c]counsel for [p]laintiff, that you have to then look at some prior history, to try to put into context what might be [an] ambiguous incident . . . .
So, my general sense is, I don't know if--I don't know if I can--if I'm of a mind that the bruises shown in the photograph are not evidence of grabbing. It would seem to fit with the notion of get out of the house, this is not your house; and it could be the product of an argument.
As far as finding it to be an act of domestic violence, that is actually a different question to me.
Quoting our decision in [Corrente v. Corrente], 281 N.J. Super. 243, 246 (App. Div. 1995), he noted, "[d]omestic violence is a term of art, which describes a pattern of abusive and controlling behavior [w]hich injures its victim."
The judge continued that his "overall sense of the case is that it really is a scenario where there was a relationship that has gone sour." He concluded that with respect to the June 14, 2007 incident, "there was an argument between the parties[,] [n]o doubt unpleasant, but I don't think in context it was a part of a pattern of abusive and controlling behavior. And I don't find it to be an assault requiring the issuance of a domestic violence order." He entered the order under review, and this appeal ensued.
We begin by noting some general principles. "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.
Plaintiff argues that the judge "erred as a matter of law when he concluded that the predicate act alleged here constituted neither an assault nor an act of domestic violence." She further claims he failed to give proper consideration to her testimony regarding the contemporaneous threats defendant made on the evening in question. She also contends that the judge "posited a model of domestic violence that is . . . at substantial variance with New Jersey precedent[.]" Defendant counters by arguing that no assault occurred because plaintiff herself admitted that when defendant grabbed her, she felt no pain and experienced no tenderness over the bruise that resulted. He argues that the judge properly considered the incident in the context of the parties' history and determined that plaintiff failed to demonstrate the need for an FRO.
We have recently reiterated the analytical framework to be employed by any trial judge deciding whether to issue an FRO.
First, the judge must determine whether the plaintiff has proven . . . that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred . . . . In performing that function, . . . [the] acts claimed by a plaintiff to be domestic violence [must] be evaluated in light of the previous history of violence between the parties. Stated differently, when determining whether a restraining order should be issued based on an act of assault . . . the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property.
The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim . . . .
[T]he Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence restraining order. [Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006).]
In Silver, we reversed the trial judge's dismissal of plaintiff's domestic violence complaint, ultimately concluding that although the judge found an assault had occurred, he failed to consider "whether a domestic violence restraining order [wa]s necessary to protect plaintiff from immediate danger or further acts of domestic violence." Id. at 128. We remanded the matter to the trial court for further proceedings. Ibid.
We confess some confusion, as have the parties, as to whether the judge determined that defendant's conduct was or was not an assault, N.J.S.A. 2C:12-1(a), and, hence, a predicate act of domestic violence. N.J.S.A. 2C:25-19(a). At one point, after reviewing plaintiff's testimony and the photograph of her bruise, he determined it to be the "product" of an argument between the parties and evidence that an assault had occurred. This interpretation of the judge's conclusion is bolstered by his subsequent comment that whether defendant committed an act of domestic violence was "actually a different question." Further confusion for purposes of our review is caused by the judge's final statement--"I don't find it to be an assault requiring the issuance of a domestic violence order." We are unsure whether the judge determined there was no assault, or whether he determined there was an assault, but, in light of the other evidence in the case, there was insufficient proof to support the issuance of an FRO. Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999). We note further that the judge failed to address the evidence in light of the other predicate act alleged in plaintiff's complaint, i.e., terroristic threats.
Our confusion is enhanced by the fact that the judge failed to determine whether the August 2006 incident in Nevada was evidence of prior physical violence between the parties. He noted, "I'm not here to decide what happened in August of 2006, except as it may provide an historical context with [the] June 2007 incident." However, he never again addressed the issue or made any findings regarding the divergent testimony of the parties.
Obviously, a pattern of physically abusive or controlling behavior is a hallmark characteristic of domestic violence. Cesare, supra, 154 N.J. at 397 (citations omitted). The judge recognized this by quoting from our decision in Corrente. While it might be inferred that the judge did not believe the August 2006 incident occurred as plaintiff claimed because he found no "pattern of abusive and controlling behavior," we cannot be sure because he made no factual findings regarding the incident in the first instance.
For purposes of our review, however, the more problematic possibility is that the judge concluded there was no act of domestic violence requiring the issuance of an FRO because there was no pattern of abusive and controlling behavior. See Silver, supra, 387 N.J. Super. at 128 (discussing the error of the trial judge in "finding that 'domestic violence' had not occurred" because of the lack of "'a pattern of abuse and a pattern of controlling behavior'"). "[T]he need for an order of protection upon the commission of a predicate act of 'domestic violence' . . . may arise even in the absence of such a pattern where there is 'one sufficiently egregious action[.]'" Ibid. (quoting Cesare, supra, 154 N.J. at 402).
We have repeatedly recognized in our review of non-jury domestic violence trials the importance of the judge fulfilling his obligations under Rule 1:7-4(a)(requiring the court to "find the facts and state its conclusions of law thereon" in all non-jury actions); Finamore v. Aronson, 382 N.J. Super. 514, 523 (App. Div. 2006); T.M. v. J.C., 348 N.J. Super. 101, 105 (App. Div. 2002); Kamen, supra, 322 N.J. Super. at 226. Given the divergent testimony in this case, the obligation to assess credibility and make specific factual findings was particularly important, and we decline the opportunity to do so ourselves. See Cesare, supra, 154 N.J. at 412 ("[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 veracity of witnesses")(internal quotations omitted).
In short, we must reluctantly remand the matter to the trial judge. In doing so, we express no opinion about the ultimate result that should be reached. However, since significant time has passed, and since both plaintiff and defendant are entitled to a resolution of these issues, we order a final hearing to take place within thirty days. We leave the exact contours of the remand hearing to the sound discretion of the trial judge. "The order of dismissal is reversed, the TRO reinstated, and the matter is remanded for further proceedings consistent with this opinion." Silver, 387 N.J. Super. at 128.
Reversed and remanded.