December 30, 2008
JESSICA KVARTA, PLAINTIFF-RESPONDENT,
MICHAEL REGO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-724-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 13, 2008
Before Judges Stern, Lyons and Waugh.
Defendant Michael Rego appeals a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The entry of the FRO was based on the finding of the trial judge that defendant committed the predicate act of assault on plaintiff Jessica Kvarta. We reverse and remand for a new trial.
Kvarta and Rego were involved in an almost two-year, "[o]n and off," dating relationship that ended in March 2006. The relationship between Kvarta and Rego produced one child, a son, born October 16, 2006. Shortly after the parties separated, Kvarta filed a domestic violence complaint against Rego, which was dismissed. A second domestic violence complaint was filed by Kvarta in April 2007, but was voluntarily dismissed. This appeal arises from the filing of a third domestic violence complaint in January 2008.
At some point, an order was the entered by the Family Part in Somerset County requiring that exchanges for parenting time take place inside the Princeton Township Police Station.*fn1 In December 2007, Kvarta agreed to provide Rego with additional holiday parenting time. The parties were to meet at the police station so that Rego could take the child for a few hours on the evening of December 25, 2007. When Kvarta arrived at the police station, Rego was already in the parking lot. Instead of going into the police station, however, he approached Kvarta's vehicle. Kvarta testified that she told Rego she would meet him inside the police station and then went to remove their child from his car seat. Rego testified that the child called out to him, so he reached for his son.
Kvarta testified that in reaching for the child, Rego grabbed her right hand and, squeezing it, caused her "excruciating pain." Rego testified that he did not touch Kvarta, but that when he picked up his son, Kvarta started to pull back on the child. Rego stated that he "did not want to tug on [his] son in the parking lot," so he let go of the child. Both parties proceeded into the police station where Rego "waved to the camera," called Kvarta a "big baby," and left with the child. Rego returned the child to Kvarta that night, at the scheduled time, without further incident.
Kvarta did not immediately report the parking lot incident to the police, but left the police station and drove to her mother's house. She returned to the police station later that evening and reported the incident. However, she did not request a temporary restraining order (TRO) at that time.
Kvarta spoke with Officer Jennifer Lackovara, who testified at the FRO hearing. Lackovara testified to several discrepancies in Kvarta's recounting of the parking lot incident. She stated that Kvarta equivocated on whether the touching between herself and Rego was intentional or unintentional. For example, the following exchange took place between Rego's counsel and Lackovara:
Q: Okay. Did she tell you that Mr. Rego informed her that he would hold the child and reached for him while he was in Ms. Kvarta's arms?
A: She did state that.
Q: Okay. And did she tell you that she did not expect Mr. Rego to reach for the child which startled her?
A: Yes. She stated that.
Lackovara had Kvarta create a "written statement due to the discrepancies in her reporting." In her report, Lackovara noted that she saw no visible injuries or swelling to Kvarta's hand. Kvarta testified that she went to the hospital on December 26 and 28, 2006, to seek medical attention for the injuries to her hand. Kvarta was prescribed Percocet and given an ace bandage to reduce swelling. She was told to put an ice pack on the hand and keep it elevated for a few days.
On December 27, 2007, Kvarta filed a domestic violence complaint in Princeton Township and sought a TRO. However, Kvarta's request for a TRO was denied by the Princeton Township municipal court judge. The complaint was apparently dismissed.
On January 2, 2008, Kvarta filed another domestic violence complaint at the Mercer County courthouse and again applied for a TRO. A Superior Court judge granted her a TRO on that date.
The final hearing was held on February 19, 2008. In granting the FRO, the trial judge found:
It's Ms. Kvarta's burden to establish by a preponderance of the credible evidence that a predicate act of violence was committed and that there is some present risk for life, safety, health or well-being. And she alleges that on December 25th an act of harassment or assault occurred during a court order[ed] exchange of the child. There was no dispute that these parties had a court order governing the exchange or visitation. P-7 is an order from . . . July of 2007 where it was court ordered that drop off and pick up of the child was to be at the Princeton Police Department with the exchange taking place inside the building.
December 25th was not a regularly scheduled visitation day for Mr. Rego. It was a day that Ms. Kvarta had agreed to provide visitation. However, the duration and the location apparently was under discussion or in dispute. Mr. Rego saying that up until about an hour before he picked up the child Ms. Kvarta was insisting on the child being picked up in Woodbridge which would have taken approximately an hour and a half of commuting time for a total period of visitation for about an hour. That he was not happy about that. About an hour before leaving for Woodbridge she did agree that the visitation exchange could take place in Princeton and so there was a voluntary visitation on the 25th that was going to take place for approximately four hours where the exchange would be at the Princeton Police Department. I find that testimony not to be disputed by anyone.
The order says the exchange was to take place inside the police department. It did not. She arrived and she said that she saw Mr. Rego approaching her and that he had reached for Ryan. Mr. Rego says Ryan was reaching for him. There is an agreement. He did go to the car area where the child was being taken out of the car by Ms. Kvarta. Mr. Rego says that on both occasions when I reached for the child I only had contact with child. On the first occasion the child held his arms out and said dad, I grabbed him under the arms and that's when Ms. Kvarta pulled back -- pulled the child back. I then -- the child reached out again and I went to grab the child again under the arms and finally Ms. Kvarta let go.
Ms. Kvarta says that -- she obviously said a few things. Her testimony as to when she was actually touched by Mr. Rego occurred. And she says on one occasion that it was the first time that he had reached out to touch her to grab the child that he had come in contact with her, but she wasn't sure whether or not it was intentional. And then she said no, it was the second time that he reached out for the child that in fact he did intentionally squeeze my right hand. And we had a photograph marked as P-6 which would reflect the right hand in the area between the thumb and index finger in the palm of the hand where she says was in excruciating pain from being squeezed by him.
She says in fact she was afraid at some point that she was going to drop the child. So the child, according to her, was still in her arms, her hand was being squeezed for Ms. Kvarta to let go, and ultimately she did let go and the child was taken into the police department. At that point, Mr. Rego says he waved at the camera. He acknowledged that he was upset.
The discrepancies with regard to credibility clearly they were at that police department and immediately after this occurred Ms. Kvarta did not report this matter. She did report it about an hour or so later, came back, gave a statement. There were discrepancies. She was required then to write a statement. Her hand was examined. There were no visible injuries observed to her hand such as bruising although there's no indication the hand was touched to elicit whether there was any pain response. She applied for a temporary restraining order, she was not granted a temporary restraining order at that particular time.
She mentioned that there was some attempt to get medical attention and she went to the hospital, but she says that portion reflecting P-6 was swollen. And that's on her right hand. Also, the other photographs are injuries to her wrist which show bruising on the wrist area. And this is the left wrist and there would appear to be two black and blue marks on the left wrist area. And she says these were also caused by her being grabbed that night. But they did not show until approximately a week later when these photographs were taken.
In the question of what's more likely than not, and that's the burden of proof. What's more likely than not. According to Mr. Rego this is completely fabricated and the motive for that was due to a pending custody evaluation whereby there would be an unfavorable report by Dr. Franklin*fn2 and that this domestic violence incident was fabricated so that she could gain some favor in the custody matte[r].
Alternatively, other factors that might reflect on credibility are the fact that clearly one, this was not a required visitation, and so one would have to believe she went there with the intent I'm going to offer visitation on Christmas so I can set up Mr. Rego for this domestic violence incident. Or, she was attempting to give him more visitation than was court ordered. They did apparently have a dispute as to the amount of time, and the relations between the parties between pick up and drop off apparently have not been good. It has been a problem such that it had to be addressed in an order, and such that it was order[ed] that in fact the exchange was to take place inside the police department.
And again, there is no gray area here in terms of the testimony. Mr. Rego says I never had contact with her. Ms. Kvarta says I did in fact. In fact, my hand was squeezed and I was in excruciating pain. I would acknowledge that P-6 does not reflect any black and blue marks, or is it easy to discern whether or not there was swelling, and there are black and blue marks in P-1 through P-5.
In terms of a burden of proof in what's more likely than not the Court is of the mind set that it's more likely than not that Ms. Kvarta was in fact squeezed or had her wrist or her hand squeezed by Mr. Rego that night during the exchange. Why would she volunteer visitation to set this scenario up for a pending evaluation? I don't accept that. I accept her testimony as to what occurred much of which is not disputed.
The exchange took place in a parking lot, Mr. Rego was upset about the timing and the exchanges that day trying to coordinate this. Unless it was a voluntary visit she was agreeing to do it, and I would not interpret that to be something to impinge on her credibility that this was all a set up. There are discrepancies in terms of whether it was the first or the second time whether or not she was grabbed. I'm satisfied that at some point she was grabbed during the exchange. Whether it was first or second is not material, but rather the fact that she was grabbed.
In fact, she said she was shaken, that there was some screaming. The requirement to exchange the child in the police department, Mr. Rego says I went in, I waved at the camera and left. I mean, the exchange was to take place for a reason. Perhaps to avoid interaction such as this. And even assuming the child did reach out for him apparently when the child was not given up initially because Ms. Kvarta was saying we need to do this inside, there was an effort still to take the child from her even though the child was reaching out.
She may have held back as he had suggested and when doing so he may have applied some pressure to her hand to let the child go a second time. He called her a baby because they had to do this inside the police department as he was not happy with the exchanges.
So I'm satisfied by a preponderance of the credible evidence that the version of what occurred is more likely than Ms. Kvarta completely fabricating this incident, reporting it to the police on a day which it was not even a court ordered visitation, or for purposes of gaining some upper hand in the context of a pending custody matter. So I'm satisfied that the act of an assault and that was unconsented to touching, and the fact that she says it was squeezed and she was in a lot of pain coupled with her testimony granted that there was some inconsistencies.
She wasn't sure if it was intentional or not, but based upon the degree of pain, based upon the palm of her hand where it was and her testimony that it was intentional this Court would conclude that it was an intentional touching unconsented to with a consequent sensation of pain even though there was no visible indication of the injury. And that's with regard to P-6.
With regard to the photographs of the wrist she further says that her wrist was grabbed and that these black and blue marks on the left wrist became visible approximately a week later. She did say that she was back on December 27th to attempt to get a restraining order, came back into court. She was told that the courts were on vacation until after January 1st, but she apparently on December 27th --there's no indication whether or not she had those bruises on that date, but then she was told again to come after January 2nd.
And I would submit that I accepted the bruises on the left wrist also for being grabbed or squeezed on that night. Oftentimes those type bruises do not develop until sometime after. And I would note that in this photograph certain[ly they] would generally not be available that night and the bruises appear to be light such as bruises that may have appeared and been going away. So I do accept that as being credible.
Is there a present risk to life, safety, health or well-being such that a final restraining order is necessary? And that would include consideration of factors of is there any prior history as well as other factors in terms of whether or not a final restraining order is required. And these are whether or not there's a prior history of domestic violence between the plaintiff and the defendant including threats, harassment, physical abuse.
Apparently there's been no findings of domestic violence between the parties. There have been domestic violence complaints. The existence of immediate danger to person or property. Is there some immediate danger to person or property? I'm not finding there's immediate danger to person or property in terms of considering these factors in the sense that there's no pending threat of any harm to her. The problem occurs during these exchanges. And that's why it was supposed to be in the police department. And by not complying with the order there is a danger every time there is an exchange these parties do not get along and apparently they have contentious relations, there is . . . a custody issue pending, and that's why in part these exchanges were to take place in a police department.
The next factor is financial circumstances on plaintiff and defendant. Not really an issue here. The best interest of the victim and any child. And in this particular case there was some concern that there was some screaming in front of the child to have to witness or experience a contentious exchange which part of the order was intended to alleviate in having the exchange take place in a police department. So I am satisfied that there is a basis for a restraining order between the parties to have no further contact between the parties other than contact authorized by way of Judge Bartlett's order to have any visitation exchanges take place within a police department. So that aspect of the prior order would continue to avoid confrontation, escalation of confrontation, to avoid any physical altercations between the parties for whatever reasons they might occur. So I am satisfied that that is needed. Judge Bartlett's order was attemp[ing] to prevent that in the context of an FD matter. It was not successful, this has occurred and so now in the context of a domestic violence matter those provisions as it relates to visitation and contact between the child shall continue to take place inside of a police department.
A FRO was entered barring Rego from any contact or communication with Kvarta and certain members of her family. Rego appeals the entry of the FRO.
Our scope of review of the trial judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1988); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). We are generally bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. This is especially so when questions of credibility are involved. Id. at 412. In addition, "[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.
The trial judge's legal decisions, however, are subject to our plenary review. Crespo, supra, 395 N.J. Super. at 194; Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
Before entering an FRO, a trial court must find, by a preponderance of the evidence,*fn3 that a defendant engaged in conduct that would fit the definition of one or more criminal statutes, including assault as defined by N.J.S.A. 2C:12-1(a). N.J.S.A. 2C:25-19; Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). Rego contends that the trial court failed to use the correct definition of assault in finding the predicate act upon which he based the issuance of the FRO. We agree. N.J.S.A. 2C:12-1(a) provides that a "person is guilty of assault if he . . . [a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." In his oral opinion, however, the trial judge did not cite to the statute and spoke in terms of an "unconsented to touching" and an "intentional touching unconsented to with a consequent sensation of pain." While that language is consistent with the definition of "battery" in a civil setting, Claus v. Brodhead, 36 N.J. Super. 598, 606 (Law Div. 1955), it does not comport with the criminal statute.
The distinction is important because, while a common law battery requires no particular intent, ibid., assault as defined in N.J.S.A. 2C:12-1(a) requires proof that the defendant acted "purposely, knowingly or recklessly." While the trial judge found that the "touching" itself by Rego was "intentional," he did not find that Rego acted "purposely, knowingly or recklessly" with respect to the causing of bodily injury or attempting to do so. See N.J.S.A. 2C:2-2(b)(1), (2), and (3), as well as Model Jury Charge (Criminal), Simple Assault p. 2 (2006), for definitions of culpability in a criminal law context.
Because the finding of at least one predicate act, such as an assault as defined by N.J.S.A. 2C:12-1, is an absolute requirement for the issuance of an FRO, Silver, supra, 387 N.J. Super. at 125, we must vacate the FRO and remand the matter to the Family Part for a new trial.
Rego also argues that the trial judge erred by granting an FRO in light of the statement in his oral opinion that he was "not finding that there's immediate danger to person or property." Rego relies upon Silver and Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995). In light of our determination to remand, we discuss this issue only to provide guidance to the remand court.
In Corrente, we held that the finding of a predicate act does not, in itself, mandate the entry of an FRO. Id. at 248. In Silver, supra, we reiterated our holding in Corrente. 387 N.J. Super. at 124. We set forth a two step process for the trial judge's consideration in whether to issue an FRO. First, as noted above, the trial judge must determine whether there has been a predicate act conforming to the conduct described in the listed criminal statutes. Id. at 125. Second, the trial judge must determine, whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse. See N.J.S.A. 2C:25-29(b) (stating "that [i]n proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse") (emphasis added).
[Id. at 127.]
If, on remand, the trial judge finds a predicate act, as described above, the judge must then turn to the second step of the process outlined above. Taking all of the statutory factors and relevant facts into account, "the trial court should determine whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence." Id. at 128. That is necessarily a fact-sensitive decision calling for the exercise of sound judicial discretion.
In view of the remand, we need not reach the other issues raised by Rego on this appeal and express no view on their merits.
In summary, we vacate the final restraining order entered by the Family Part and remand to that court for a new trial consistent with this decision. At oral argument before us, there was a discussion of whether a remand trial, if one were ordered, should be held in Somerset County, where the parties' custody and support case is venued, or in Mercer County, the locus of the alleged domestic violence and the venue chosen by the plaintiff. Rule 5:7A(f) provides as follows:
Venue in domestic violence actions shall be laid in the county where either of the parties resides, in the county where the domestic violence offense took place, or in the county where the victim of domestic violence is sheltered. The final hearing is to be held in the county where the ex parte restraints were ordered, unless good cause is shown for the hearing to be held elsewhere.
We remand to the Family Part in Mercer County, where this action originated. However, either party may move for a change of venue to Somerset County. If the parties consent to a change of venue, the Presiding Family Part Judge in Mercer County should grant their request.
Pending the remand trial, the temporary restraining order previously entered is reinstated and shall remain in effect. All custody and support issues, however, shall continue to be governed by the orders entered in FD-18-431-07, pending in Somerset County.
Vacated and remanded.