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Bishop v. Bishop

July 1, 2008

KATHERINE BISHOP, PLAINTIFF-RESPONDENT,
v.
WALTER BISHOP, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FV-14-1237-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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