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Fisher v. Libro


April 28, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-05-0027-08.

Per curiam.



Argued December 16, 2008

Before Judges Winkelstein and Fuentes.

Defendant Terence Libro appeals from the order of the Family Part granting plaintiff Judith Fisher's application for a final restraining order (FRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). The trial court found that defendant had committed the predicate offense of harassment, as defined in N.J.S.A. 2C:33-4. Included in the relief ordered, the court restrained defendant "from driving any motor vehicle in the 4300 or 4400 block of Central Avenue or on 43rd Street between Landis Avenue and Park Avenue all in Sea Isle City."

In this appeal, defendant argues that the trial judge committed reversible error by aggressively examining the witnesses, thereby crossing the line between impartial jurist, and party-advocate. Defendant also argues that the record does not support the court's findings with respect to the predicate offense of harassment. Even if we were to uphold the court's ruling with respect to the FRO, defendant further argues that the restrictions imposed by the court on his conduct are too broad, and impermissibly expose him to potential criminal prosecution for engaging in otherwise facially innocuous conduct.

We reject defendant's argument attacking the issuance of the FRO. The record developed at trial amply supports the court's findings that defendant's conduct, during the time period specified by plaintiff, amounted to harassment within the meaning of N.J.S.A. 2C:33-4. We agree, however, that the restrictions on defendant's driving require further review by the trial court.

Plaintiff appeared before the trial court pro se. Defendant was represented by counsel. These are the facts.

The parties are divorced. They have two children, the youngest child is a minor and resides with plaintiff. According to plaintiff, the circumstances that led to her seeking injunctive relief under the Prevention of Domestic Violence Act occurred when she dropped off her youngest child at school. As she doubled parked her car to speak to another parent, plaintiff heard the sound of defendant's vehicle; she looked back through the rearview mirror and noticed that his car was coming down the street. Because she also saw a marked police car directly in front of defendant's car, she decided to drive away, presumably to avoid a possible ticket for double parking.

As she turned left unto John F. Kennedy Boulevard, she noticed that defendant's truck was between her car and the car immediately behind her. Defendant then passed that car, and situated himself immediately behind her. Plaintiff testified that, at that point, he drove up to my bumper, my back bumper, practically ate my bumper, the car [began] making -- you know, I don't know if there's a button he pushes to make it louder or if you step on the gas, it gets louder. I don't know, but -- and then when we near the Parkway entrance, he passed me, cut me off, went onto the Parkway.

According to plaintiff, this episode was the third time that defendant behaved in this manner. Two months earlier, as she was driving home, "all of a sudden" defendant appeared behind her, and "drove very very close again to [her] rear bumper." He continued to follow her in this fashion for a distance of about fourteen blocks, from 62nd Street to 48th Street. She heard the sound of his car engine as he drove away.

The trial judge, who conducted all of plaintiff's direct examination, asked her to clarify a statement attributable to her in the complaint, that "on many occasions Mr. Libro has been seen and heard driving . . . up and down [her] street approximately eight to nine times a day." In response, plaintiff testified that defendant's behavior began in the summer of 2006.*fn1 When pressed by the court to state definitively how many times she had actually seen defendant drive by her house from July 2006 to the date she filed this complaint, plaintiff responded: "some days it was a couple of times. Some days it was eight, nine, ten."

On cross-examination, plaintiff conceded that between 1992 and 2004 she had filed three domestic violence complaints seeking restraining orders against defendant. All three complaints had been dismissed, either voluntarily or for lack of evidence.

Defendant testified in his own defense. He denied all of plaintiff's allegations of tailgating and aggressive driving. Defendant admitted to an addiction to pain killers. By way of an alibi concerning the specific incident of tailgating, defendant testified that, on the date and time identified by plaintiff in the complaint, he was on route to his doctor's office in Somers Point, to receive his regular dose of methadone.

On cross-examination, the trial judge asked defendant if plaintiff's allegations that he had used heroin in the home were true. When defendant answered "no," the court confronted him with a transcript of a telephone conversation recorded by the local prosecutor's office in which defendant admitted to using heroin in the marital residence. In response, defendant explained that he made this allegedly false statement to placate plaintiff, in an effort to convince her to return his children to him.

At the conclusion of the case, and after considering defendant's counsel's closing remarks, the trial judge rendered a comprehensive, well-reasoned, oral decision finding, by a preponderance of the evidence, that defendant had committed the offense of harassment. As a matter of credibility, the court accepted plaintiff's account of events, and rejected defendant's testimony to the contrary. Mindful of the elements of harassment under N.J.S.A. 2C:33-4, the judge noted:

I can't conceive of any purpose other than a purpose to harass, accepting as I have now, that these incidents occurred at all. There can be no other reasonable discernable purpose. And furthermore, I think under the harassment statute, [N.J.S.A.] 2C:33-4, subsection c, the truck incidents were repeatedly committed acts which had as their explicit purpose to alarm or seriously annoy Mrs. Fisher.

Against this record, we are satisfied that defendant's argument on appeal attacking the court's decision to grant the FRO are without merit. The court's well-reasoned decision is supported by the evidence; the factual findings underpinning the decision deserve our deferential review, the legal conclusions reached therein, however, are reviewed de novo. J.N.S v. D.B.S., 302 N.J. Super. 525, 530 (App. Div. 1997).

We also reject defendant's argument that the trial judge's conduct here was overbearing, denying him a fair trial. The trial judge has broad authority in the role of factfinder in domestic violence cases. Indeed, we have upheld a Family Part judge's decision to visit the neighborhood where the parties' resided, in order to determine whether the proximity of defendant's residence violated the restraints imposed by the court. Zappaunbulso v. Zappaunbulso, 367 N.J. Super. 216, 228 (App. Div. 2004).

We also take notice that a large number of domestic violence cases are heard and tried everyday in the Family Part where one or both parties appear pro se. In this context, it becomes the responsibility of Family Part judges to examine witnesses in order to determine the legal viability of a given action.

In State v. Medina, 349 N.J. Super. 198, 130-31 (App. Div), certif. denied, 174 N.J. 193 (2002), we defined and clarified the judge's role with respect to the interrogation of witnesses.

The parameters of judicial intervention in the conduct of a trial are well settled. Our courts have long rejected the "arbitrary and artificial methods of the pure adversary system of litigation which regards the lawyers as players and the judge as a mere umpire whose only duty is to determine whether infractions of the rules of the game have been committed." State v. Riley, 28 N.J. 188, 200 (1958), cert. denied, 359 U.S. 313, 79 S.Ct. 891, 3 L.Ed. 2d 832 (1959). The intervention of a trial judge in the questioning of a witness is both a power and a duty, and forms part of the judiciary's general obligation to ensure a fair trial "conducted in [an] orderly and expeditious manner." State v. Laws, 50 N.J. 159, 181 (1967). Trial judges are vested with the authority to propound questions to qualify a witness's testimony and to elicit material facts on their own initiative and within their sound discretion. State v. Ross, 80 N.J. 239, 248-49 (1979). The discretionary power of a judge to participate in the development of proof is of "high value," because a fair trial is his responsibility.

State v. Guido, 40 N.J. 191, 207 (1963); see also N.J.R.E. 611(a) (judge "shall 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. 614 ("judge . . . may call a witness and may interrogate any witness"); Kristine Cordier Karnezis, Annotation, Manner or Extent of Trial Judge's Examination of Witnesses in Civil Cases, 6 A.L.R.4th 951 (1981) ("trial court has the right to act as more than a moderator and to ask questions to clarify counsel's questions and witnesses' testimony in order to fully develop the truth").

Here, plaintiff appeared without counsel. The judge thus assumed the responsibility of conducting the direct examination. N.J.R.E. 614. The trial judge also questioned defendant directly to probe for inconstancies in his testimony, and to assess not only his credibility, but the credibility of plaintiff as well. This does not, of course, authorize the judge to act as plaintiff's counsel. While the judge's cross-examination of defendant approached that advocacy role, we are satisfied that the questions, when viewed as whole, were proper.

The Supreme Court has long recognized that judges sitting in the Family Part have special expertise in the field of domestic relations. Cesare v. Cesare, 154 N.J. 394, 412 (1998). In our view, the manner in which this judge examined and cross-examined the witnesses exemplifies this special expertise.

We now address defendant's argument with respect to the restrictions imposed by the court. We start our analysis by acknowledging that, under N.J.S.A. 2C:25-29(b), the Legislature gave the trial court wide discretion to fashion "any relief necessary to prevent further abuse." Thus, following a finding of domestic violence, the remedies available under the Act are expansive, the paramount goal being the protection and safety of the victim. Finamore v. Aronson, 342 N.J. Super. 514, 520 (App. Div. 2006).

Here, the trial judge restrained defendant "from driving any motor vehicle in the 4300 or 4400 block of Central Avenue or on 43rd Street between Landis Avenue and Park Avenue all in Sea Isle City." Defendant currently resides in Sea Isle City. We take notice*fn2 that City Isle City is a shorefront community, measuring 2.5 square miles.

In imposing the geographic restrictions described supra, the trial court made no findings on how these restrictions may affect defendant's ability to continue to reside and move about this relatively small municipality, without exposing himself to potential criminal prosecution. Furthermore, although plaintiff testified about defendant repeatedly driving by her home everyday, for a period of a year, the predicate offense of harassment involved specific conduct, i.e., tailgating. Thus, defendant's mere presence in plaintiff's neighborhood, purged of any offensive conduct or other unlawful purpose, should not be, in and of itself, grounds for potential criminal prosecution for contempt.

These and other questions about the reasonableness of the restraints must be explored in depth by the trial court in a supplemental, fact-finding hearing. In effectuating this task, the overriding principle remains the security and safety of the plaintiff. Ultimately, the court may conclude that the original order should stand without modification; or it may find that some adjustments can be made to respond to defendant's concerns, without compromising plaintiff's safety.

Affirmed but remanded for reconsideration as to the scope and nature of the restraints.

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