July 1, 2008
KATHERINE BISHOP, PLAINTIFF-RESPONDENT,
WALTER BISHOP, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FV-14-1237-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 28, 2008
Before Judges Coburn, Chambers and Waugh.
Defendant Walter Bishop appeals from the entry of a final restraining order against him following a bench trial on claims of domestic violence brought by plaintiff Katherine Bishop, his wife. The trial judge found that defendant had committed an act of domestic violence, as that term is defined in N.J.S.A. 2C:33-4, by harassing plaintiff. On appeal, defendant contends that
(1) he did not receive a fair hearing and (2) there was insufficient credible evidence to sustain entry of a domestic violence restraining order. We affirm.
Plaintiff filed a domestic violence complaint in the Mountain Lakes Municipal Court on June 10, 2007. She alleged that defendant "became angry when he discovered plaintiff was going on a cruise without him", that he "became verbally abusive and intimidating" and "made numerous calls to victims [sic] friends." The complaint also alleged that plaintiff had called the police "3-4 years ago" for a "similar incident." A temporary restraining order (TRO), which granted plaintiff exclusive possession of the marital residence, was issued by the judge of the Mountain Lakes Municipal Court on June 10, 2007, with the final hearing scheduled for June 13, 2007. The complaint and TRO were served on defendant by the Mountain Lakes police on June 10, 2007.
On June 13, 2007, the final hearing was adjourned to June 20, 2007, at the request of plaintiff's counsel. The adjournment order also permitted defendant to arrange parenting time directly with the parties' children. Defendant was served with the adjournment order on June 13, 2007.
On June 14, 2007, plaintiff filed an amended complaint, along with a certification that elaborated on the events that gave rise to the initial complaint and the allegations concerning the prior history of domestic violence. A copy of plaintiff's voluntary statement to the police was attached to the certification. An amended TRO was issued by the trial judge, with the final hearing remaining scheduled for June 20, 2007. The amended TRO, the amended complaint, the certification and the voluntary statement were served on defendant on June 15, 2007.
The two parties and counsel for plaintiff appeared for the final hearing on June 20, 2007. Before calling the calendar, Judge Thomas L. Weisenbeck requested a member of the Family Part staff to explain the procedures followed in domestic violence cases. The staff member explained that the litigants "can request a postponement, or adjournment," which would require a "valid reason, such as, perhaps wanting to obtain an attorney, to have a witness here, or something of that nature." After explaining the basic outline of the hearing, she stated that a defendant against whom a final restraining order was entered would "have to go undergo some law enforcement identification procedures" and "have to pay a mandatory fine of anywhere between $50 and $500."
When the case was called, the trial judge asked defendant whether he had received the TRO and "the certification amending it," to which he responded that he had. The judge then asked defendant whether he knew "why we're here," to which he again replied in the affirmative. After ascertaining that defendant wished to contest entry of a final restraining order, the trial judge asked defendant whether he was "ready to proceed." The following exchange then took place:
MR. BISHOP: Yes. Exactly - - exactly would [sic] that procedure involve?
THE COURT: What would what procedure involve?
MR. BISHOP: Protesting it.
THE COURT: Well, we're going to have a hearing.
MR. BISHOP: Okay. Yes.
Plaintiff testified first. She was examined by her attorney and by the trial judge. She testified that she and defendant lived in a ranch-style house, but that they had used separate bedrooms for approximately a year. She described her separate bedroom as "basically my oasis to get away from my husband, especially when he goes into a rage, which has been more frequently." They have two children living at home, one of whom is still under age eighteen.
Plaintiff testified that during the "prior couple of evenings," defendant had been "incredibly emotionally upset, in a rage that I was invited to a cruise party with friends and he was excluded, which has not been the first time he's been excluded, in the past." She further testified that "generally" defendant has "trouble with alcohol" and that "generally he drinks at night and then he - - he rages against me." When asked what she meant by "raging," plaintiff replied that she meant "[y]elling, calling obscenities." She testified that he called her a "bitch," a "whore" and a "liar."
Plaintiff testified that, on the evening of June 9, 2007, defendant had been "raging" about his not having been invited to go on the cruise with plaintiff's friends. In a departure from the prior pattern, however, the "raging" continued on the morning of June 10, 2007. She testified that the continuation of the "raging" on the following morning was "frightening" to her because "he wasn't drinking that morning" but was "straight sober and -- and still the -- the accusations, the profanity continued."
Plaintiff testified that defendant was "slamming doors," including her bedroom door and "making noise outside of [her] room." She testified that, after he slammed her bedroom door, she felt "very frustrated and frightened."
After plaintiff described defendant as "screaming under his breath," the trial judge asked her what she meant by that. She replied that "[w]hen he -- it goes into his rage, which is generally in the evening when he's drinking, his body changes, his -- his mannerisms just become very abrupt" and "he'll say things to at me, and then -- and then say something, like under his breath, as though pretending that he -- he wants me to hear -- absolutely hear it." She then demonstrated what she meant at the trial judge's request, adding that it was loud enough to be "very audible" in her bedroom with the door closed.
Plaintiff testified that the "raging" lasted for about an hour on the morning of June 10, 2007. Eventually, she left her room, went toward the kitchen and heard defendant on his cell phone. She concluded that he was calling one of her friends to complain about her. She said that he was "insulted" that he had not been invited to the event. She asked him to get off the cell phone, but he refused. She believed that he "knew" she was getting upset. She then "tried to grab the phone" and "he walked away." She told defendant that she could not "take it anymore" and was "calling 9-1-1."
Plaintiff testified that there had been a "raging" incident on June 8, 2007 and at other times during the prior two years.
My husband drinks, and he used to drink a couple of times a week and -- and scream obscenities at me. This has been going on for years. Now, over these last two years, since he's again lost a job, he's drinking more and more and it's every single night.
I've had to go back to work to pay for medical insurance for my children, and I come in the door at 8 o'clock at night time, and, you know, he's been drinking since 5 o'clock, and as the night progresses, he's just getting nastier and nastier. And so the obscenities come constantly and the anger, and the rage.
In response to a question from the trial judge, plaintiff testified that this type of thing had been happening between three and four times per week.
Plaintiff further testified that, several weeks before the June 9th and 10th events, her older son attempted to intervene to prevent defendant from "verbally abusing" her and there was "the beginning of a physical confrontation" between them, which was averted only by her threat to complete a 9-1-1 call she had initiated.
Plaintiff also described an incident that she said occurred between three and four years earlier. Defendant had been "drinking, going on, obscenities . . . it really got horrible." She said that she went into their bedroom and locked the door. He followed her and "put his fist -- it's one of those double-hollow doors . . . his fist through, and it cracked the outside, and made a dent on the inside part -- of the door." She telephoned 9-1-1 and defendant was arrested, but there was apparently no domestic violence complaint.
When asked by her attorney if she was concerned for her safety, plaintiff replied:
A. Yes. I have been, because he -- when he's drinking, it's -- he -- he loses who he is. The next morning, which is where we were interrupted before, we -- we -- he could be just a horrible abuser, it could be an awful night. And I wake up and I'm just so upset about it, and he wakes up like nothing happened. And he'll bring me Starbucks or flowers. It's -- it's -- it's scary. And I don't understand it.
When defendant was asked by the trial judge whether there were any questions he wanted to ask his wife, he said he wanted to know "the truth" about why he was "the only spouse not invited" on the overnight cruise. The trial judge responded that the question was "not necessarily relevant to what [his] reaction was to not being invited" and asked for his next question. Defendant said: "Oh, that's it, Your Honor."
The trial judge then asked defendant whether there was any testimony he wanted to give. Defendant proceeded to explain his efforts to find out why he had not been invited to go on the overnight cruise, including efforts to contact the host. He testified that, on the morning of June 10, 2007, he had called a mutual friend and was explaining how "frustrated" and "hurt" he was about not being invited, when plaintiff came into the kitchen and "started yelling" at him and asking who he was calling. He testified that he walked away from her. He said that he had been "upset" and was "mumbling things," like "Someone's lying" and "Lying" and "Liar."
Defendant testified that the event several years prior was related to his efforts to find out from plaintiff the identity of a "Richard" whose telephone number kept coming up in the telephone bills. He described the situation as being "very painful and very hurtful," because he loves his wife and family. He testified that, after plaintiff went into their bedroom and locked the door, he "unjammed it and opened it" by "pushing up against it" with his "shoulder" and "body." He did not know if he punched a whole in the door. He stated that he "wanted to find out who Richard was."
The trial judge asked defendant whether he had "a drinking problem." He responded that he "sometimes" drank "more than one or two glasses of wine at night." He denied drinking a whole bottle or more than "three" glasses. He testified that he had no "DWI's." In response to the judge's question about whether he became "drunk or intoxicated," he said that "it gets me a little, you know, close, you know, just . . . . " He then changed the subject and started to discuss his problems in finding full-time employment.
Defendant testified that June 10, 2007, was the only time he slammed his wife's bedroom door. He generally denied having a practice of going past the door and saying things under his breath. He said that he might have called his wife a "bitch" several months before and might have said something about "lying," but he denied using other profanity. However, in response to the trial judge's questions about "raging," he did admit that "it happens now and then," by which he meant "once every couple of weeks, once every three weeks." He said that there were "yelling matches" started by both of them.
Based upon the testimony, Judge Weisenbeck made the following findings of fact:
[The] Court makes the following findings of fact with respect to plaintiff's complaint. The Court finds that [the] parties are married. They have two sons, one of whom is an adult. At least their son, Eric, - well, at least one of their sons still resides in the home. Both of their sons reside there.
About a year ago, the parties took up separate sleeping arrangements in the house. On June the 10th the defendant was yelling at the - at the plaintiff, was calling - referring to her as a bitch, a whore, a liar; slamming doors in the house; a type of conduct that the plaintiff has described as a "raging."
He was upset, and perhaps obsessively so, with his exclusion from a - an overnight cruise party, that only the plaintiff had been invited to, and then was calling - contacting other people - speaking to other people about his - about being so excluded.
Prior to the - the 10th, there has been an increasing history of raging conduct by the defendant, directed toward the plaintiff. An example would be on June, the 8th, two nights before, the defendant had been drinking.
He drinks three to five times - or three to five evenings per week. And during these periods when he's drinking he's extremely upset, perhaps about his relationship with the plaintiff, perhaps about his present unemployment, having lost his job two years ago.
When this occurs, as it does with a fair degree of frequency, the plaintiff retreats to her bedroom. The defendant - and - locks the door. Defendant then walks by her door, cursing, calling her a liar - which is perhaps a reference to plaintiff's own social life, or some other issue confronting the defendant, at the time.
His countenance is - has been described by the plaintiff, as mean and angry. And this has been increasing to a crescendo that culminated in the morning of June 10th, when in fact, the record does not even indicate that the defendant was under the influence of any alcohol.
On - about three or four years ago, the defendant, on one occasion had been drinking. The plaintiff locked herself in the bedroom - door, at a time when they were - the parties were still sleeping in the same bed. The defendant was angry; he was upset at the plaintiff, and he punched his way into the bedroom door. Plaintiff ended up calling 9-1-1, the police - then the police responded.
I've listened to the testimony of both parties. I'm satisfied that the circumstances that the plaintiff has described are true and accurate. I credit her testimony. And Mr. Bishop's testimony, to the extent that it materially differs with the defendant - with the - with the plaintiff's, - excuse me - I reject as not being reliable.
I think, quite candidly, that he is in a state of denial, A, about his drinking, B, about the relationship, which he unfortunately no longer has with the plaintiff.
It should be clear - although perhaps I can understand why it might not be as clear to Mr. Bishop as it is to me, that this is a marriage only in name. The parties have been living, for all practical purposes, separately, for a year. The plaintiff has her own social life. She is invited to events that the - that do not include invitations to the - to the defendant.
And perhaps Mr. Bishop feels the weight of the world crushing around his shoulders, and that's not a position that anyone envies. That being said, it doesn't serve as a justification, under the law, for this type of conduct.
And while I have clearly officiated in domestic violence hearings involving harassment that are more egregious, I believe that the plaintiff has demonstrated, by the greater weight of the evidence, that the conduct of the defendant, culminating in the events of June the 10th, amounted to a course of alarming conduct or of repeatedly committed acts, with a purpose to alarm or seriously annoy the plaintiff, and serve no other purpose other than to harass.
The fact that Mr. Bishop felt hurt, excluded frustrated, - and I'm not suggesting to Mr. Bishop, that he shouldn't feel these things - that would be natural, under the circumstances. It's his reactions and his conduct that are being called into question, and serve as the basis for plaintiff's claim.
So I am persuaded, considerably in this case, by the prior history of domestic violence, that is, as to the events that the plaintiff testified to prior to June 10th, that the events of June 10th rise to the level of domestic violence.
And I have concern for - or I should say, I find that there is good cause for plaintiff to be concerned for her life, health, or her well-being.
While there was one act of violence, three or four years ago, I don't believe that Mr. Bishop is a violent man. But domestic violence does not require - or a showing of domestic violence does not require a showing of assaultive behavior, for example, or - or other traditionally violent acts.
And that's why the statute includes, as a predicate act, the crime of harassment, which can sometimes be as devastating as a slap across the face if continued over a period of time, as it has here.
The trial judge then entered the final restraining order (FRO).
On appeal, defendant argues that he was not accorded a fair hearing because (1) his due process rights were violated and (2) the trial court unduly intervened in the questioning of witnesses and elicited irrelevant, prejudicial testimony upon which he relied in making his decision. He also argues that there were insufficient credible facts to sustain a finding of domestic violence because (1) the factual findings did not support the predicate act of harassment and (2) the trial court failed to make the analysis required by Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), to determine whether an FRO was an appropriate remedy.
Turning first to the procedural issues, both the Fourteenth Amendment to the United States Constitution and Article I, paragraph 1 of the New Jersey Constitution protect the due process rights of defendants in actions brought under New Jersey's Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003). In the context of a domestic violence case, minimal due process requires "notice defining the issues and an adequate opportunity to prepare and respond." Id. at 321-22 (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)). A defendant is also entitled to have the opportunity to cross-examine witnesses and to call witnesses. Peterson v. Peterson, 374 N.J. Super. 116, 125 (App. Div. 2005). Although defendant cites no case requiring that counsel be appointed to represent a defendant in a domestic violence case, there can be no question that a defendant would be entitled to be represented by retained counsel.
We are satisfied from our review of the record that the hearing below complied with the due process requirements outlined above. Defendant received notice that he was a defendant in a domestic violence case and the initial allegations of the complaint on June 10, 2007. He received the amended complaint, which included the supplemental allegations, on June 15, 2007. Both the initial and amended TRO advised defendant of the types of relief that could be granted at final hearing. He also received the adjournment order on June 13, 2007, which alerted him to the fact that his wife was represented by counsel. The final hearing was not held until June 20, 2007. This was not a case like H.E.S., in which the defendant, whose request for an adjournment was denied, was given inadequate notice and insufficient time to prepare.
In addition to receiving adequate notice, defendant received an adequate explanation of his procedural rights. Prior to the commencement of the hearing on June 20, 2007, court personnel advised all parties, including defendant, that they could request an adjournment and that valid reasons for requesting an adjournment included retaining counsel or arranging for witnesses. Defendant never requested an adjournment or an interest in retaining counsel. The basic outline of the trial procedure was also described, including cross-examination of witnesses. Finally, all defendants were advised that if a FRO was entered, they would have to "undergo some law enforcement identification procedures" and pay fines. During the hearing itself, the trial judge gave defendant the opportunity to cross-examine Plaintiff and to testify himself, unlike the defendant in Peterson.
Defendant's complaint that the trial judge asked too many questions during the hearing and that he elicited irrelevant, prejudicial testimony is also without merit. N.J.R.E. 614 gives the trial judge the right to "interrogate any witness." Indeed, the Rule even permits the judge to call his or her own witnesses. This authority to examine and even call witnesses is part of the trial judge's broader authority to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to . . . make the interrogation and presentation effective for the ascertainment of the truth." N.J.R.E. 611 (emphasis added). A judge may intervene in the examination of witnesses "in the interest of assuring a fair trial," and may even have a duty to do so under certain circumstances. Hitchman v. Nagy, 382 N.J. Super. 433, 451 (App. Div.), certif. denied and appeal dismissed, 186 N.J. 600 (2006). In a bench trial, the trial judge need not be concerned that intervention in the questioning of witnesses or parties will unduly influence a jury. See State v. Ross, 80 N.J. 239, 248 (1979); Hitchman, supra, 382 N.J. Super. at 452. A Family Part judge trying a domestic violence case is required to balance the interests of the parties and to apply the public policy behind the Act. The judge needs the fullest factual information possible and can reasonably be expected to seek that information directly from the witnesses.
Defendant particularly complains about the trial judge's exploration of his use of alcohol, arguing that the issue of alcohol use was both irrelevant and prejudicial. There was considerable testimony from plaintiff that defendant had been drinking prior to the episodes of "raging" which formed the core of her harassment claim. Defendant's argument that alcohol use was irrelevant because there was no alcohol use on the morning of June 10, 2007 is inaccurate. Plaintiff's allegations and testimony with respect to harassment and domestic violence were considerably broader than the single event on June 10th. Although that event may have precipitated her seeking a restraining order, plaintiff's overarching complaint centered on defendant's increasingly frequent episodes of drinking and "raging" prior to that date.
The trial court properly explored the nature and extent of defendant's use of alcohol, including whether defendant had a history of "DWI," in order to ascertain the role any alcohol abuse played in the alleged domestic violence. His actions were proper because alcohol use is "highly relevant" in determining whether an FRO is needed, Carfagno v. Carfagno, 288 N.J. Super. 424, 440 (Ch. Div. 1995), and because alcohol evaluation and counseling is one of many remedial options available to Family Part judges should an FRO be issued. Such an evaluation was ultimately ordered for this defendant.
Our review of the trial record satisfies us that the trial judge's questioning was designed to facilitate "the ascertainment of the truth." It was, consequently, a proper exercise of his discretion under N.J.R.E. 611 and N.J.R.E. 614.
We now turn to defendant's contentions with respect to the merits of the decision below. Before entering an FRO, a trial court must find, by a preponderance of the evidence, that a defendant engaged in conduct that would fit the definition of one or more criminal statutes, including harassment as defined by N.J.S.A. 2C:33-4. Silver, supra, 387 N.J. Super. at 125-26.
Defendant contends that there was no factual basis for the trial court's finding that his conduct amounted to harassment.
For the purposes of this case, the following two aspects of N.J.S.A. 2C:33-4 are relevant:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, 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;[or]
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person. [Emphasis added.]
Those are the two subparts of the statute discussed and relied upon by Judge Weisenbeck.
Our scope of review of the trial judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1988). We are generally bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Id. at 411-12. This is especially so when questions of credibility are involved. Id. at 412. We are satisfied that Judge Weisenbeck's factual findings are fully supported by the record, as is his decision to credit the testimony of plaintiff and, where inconsistent with plaintiff's, to reject the testimony of defendant.
We find no error in Judge Weisenbeck's conclusion that plaintiff "demonstrated, by the greater weight of the evidence, that the conduct of the defendant, culminating in the events of June the 10th amounted to a course of alarming conduct or of repeatedly committed acts, with a purpose to alarm or seriously annoy the plaintiff and serve no other purpose other than to harass." That conclusion is amply supported by the record.
Finally, defendant argues that, even if the predicate act of harassment was correctly found, the trial judge should not have entered the FRO because it was not warranted under the circumstances. He correctly points out that a finding of a predicate act of domestic violence does not "automatically mandate" the entry of an FRO. Silver, supra, 387 N.J. Super. at 126-27. He specifically contends that the trial judge erred with respect to the second step of the two-step analysis outlined in Silver, i.e., "whether the court should enter a restraining order that provides protection for the victim." Id. at 126-27.
The essence of defendant's argument is that entry of the FRO in this case "represents a trivialization of the Prevention of Domestic Violence Act." He cites several cases in which FROs were reversed on appeal, including Bresocnik v. Gallecos, 367 N.J. Super. 178 (App. Div. 2004). In that case, the underlying event was the hand delivery of a single letter to the plaintiff's place of employment, about which the trial judge did not even make a specific finding of intent to harass. Observing that the Act was "not a primer for social etiquette and should not be used as a sword to wield against every unpleasant encounter or annoying interaction that occurs between household members," we reversed. Id. at 181-84.
Defendant also cites J.N.S. v. D.B.S., 302 N.J. Super. 525 (App. Div. 1997), which involved the use of obscene language and the kicking over of garbage cans. Finding that there was "insufficient evidence from which to find 'constant harassment' or a threat to make plaintiff's life miserable," we reversed. Id. at 528-32. N.B. v. T.B., 297 N.J. Super. 35 (App. Div. 1997), another case cited by defendant, involved inadequate findings of fact and an ambiguous incident.
We find no basis to set aside the FRO entered in this case. As already noted, the trial judge's findings of fact were fully supported by the record, including his specific finding that defendant intended to harass plaintiff. Defendant's conduct in this case went far beyond a "breach of social etiquette" and an "unpleasant encounter" or "annoying interaction" of the type that concerned us in Bresocnik. Here, the parties were not just living in separate bedrooms; plaintiff's bedroom had become "basically [her] oasis to get away from [her] husband, especially when he goes into a rage, which has been more frequently." This case involved the type of ongoing harassment and efforts to make a spouse's life "miserable" that were missing in Bresocnik and J.N.S.
Judge Weisenbeck correctly held that "domestic violence does not require a showing of assaultive behavior . . . or other traditional violent acts." See H.E.S., supra, 175 N.J. at 329 ("The law is clear that acts of actual violence are not required to support a finding of domestic violence."). We are satisfied that he had a sufficient basis to conclude that plaintiff needed protection from ongoing domestic abuse. His conclusion that there was good cause for plaintiff to be concerned for her safety comports with the "objective standard" required in Cesare, supra, 154 N.J. at 403, and fully supported by the record.
In summary, we find that defendant received a fair trial in accordance with his due process rights and that Judge Weisenbeck's decision on the merits was fully supported by the record and applicable law. Given the particular expertise of Family Part judges, it is not our place to second-guess an exercise of discretion to enter an FRO "when supported by adequate, substantial, credible evidence," as was the decision below. Id. at 412-13.
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