July 14, 2009
CAROLYN GIBSON, PLAINTIFF-RESPONDENT,
BENITO REYES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Camden County, Docket No. FV-04-1553-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: June 9, 2009
Before Judges Axelrad and Winkelstein.
Defendant appeals from a final restraining order (FRO) entered under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -25. The order was entered following a final hearing on a temporary restraining order (TRO) issued against appellant pursuant to a domestic violence complaint filed by plaintiff alleging terroristic threats, N.J.S.A. 2C:12-3. On appeal, defendant contends, in part, that the FRO was entered against him in violation of his due process rights and without the court making the requisite findings with respect to the predicate act or that an FRO was necessary to protect plaintiff. Based on our review of the record and applicable law, we agree that the judge erred in these respects and reverse and remand.
The parties have a child, B.R., born in l999. By prior order entered in Burlington County, the parties have joint custody of the minor child and appellant is the parent of primary residence.
On November l5, 2008, plaintiff was issued a TRO in the Waterford Township Municipal Court against appellant based on an allegation that on that date appellant "threatened her life by stating, 'you f[-]ing cunt it's on now' and 'I'm going to strangle you' while she was speaking with her son on the phone." According to the complaint, plaintiff further claimed that appellant "threatened her life by stating to her, 'you[']r[e] going to be dead by the end of the year.'" Plaintiff listed a March 2000 TRO for "terroristic threats and simple assault" that was "later dropped" as the only instance of prior history of domestic violence. The TRO further noted that a child custody hearing was scheduled in Burlington County on December 2, 2008.
A final hearing on the domestic violence complaint was conducted in the Family Part, Camden County on November 20, 2008, during which both parties appeared pro se. As to the incident that formed the basis of her complaint, plaintiff testified that while she was on the phone with her son, she overheard appellant say, "get your f[-]ing bag, you f[-]ing cunt, I'll f[-]ing strangle you." She also testified that she was mentally abused and controlled by appellant and "live[s] in constant fear . . . that [appellant's] going to kill me one night[.]" Plaintiff further testified to several instances of past domestic violence. Over appellant's objection, the trial judge accepted into evidence two undated and unauthenticated photographs submitted by plaintiff depicting black and blue marks on her thigh, which she contended were caused by appellant. The trial judge did not advise appellant of his right to cross-examine plaintiff or provide him an opportunity to do so.
Appellant opined that plaintiff filed the domestic violence complaint to buttress her position in her pending motion to transfer custody. He acknowledged that during a telephone conversation between plaintiff and B.R., he took the phone and called her a "stupid cunt," although he vehemently denied threatening to strangle her or making any other threatening statements. He explained that he and plaintiff were arguing about visitation drop-off and his comment was in direct response to plaintiff's calling him an obscene name and her statement that the police would have to be involved in the pick-up and drop-off until the custody matter was resolved. Appellant denied ever physically abusing plaintiff and explained his belief that she had been abused by another man. Accordingly, he again renewed his objection to admission of the pictures and was summarily informed by the judge all that was necessary was plaintiff's testimony that the pictures were accurate. Appellant also explained that both parties had filed for TROs in 2000 and had agreed to dismiss them; he did not recollect there being any trial.
At the conclusion of appellant's testimony, the judge took a recess and interviewed the nine-year-old child in chambers without having it transcribed and then commented on the record about a statement made by B.R. unrelated to the incident before the court. See R. 5:8-6 (setting forth procedure for in camera interview of children in custody matters, including permitting counsel the opportunity to submit questions to be asked, requiring a stenographic or recorded record of the interview, and providing for availability of transcripts to the parties).
Although the trial judge took testimony from the parties under oath, he did not swear in plaintiff's fiancé before he "testified." The judge then asked appellant if he had "any questions in light of the additional testimony here[,]" to which appellant made a few statements; however, appellant was not informed he was entitled to cross-examine the witness and thus he did not do so.
At the conclusion of the hearing, the trial judge made the following decision:
I'm satisfied that there is a history of an abusive relationship. In fact, that on November l5th there was more than just cursing between former boyfriend and girlfriend as the expression goes, that there was actual threats of violence, and that there's been a history of abuse.
I find that these pictures are real. That there was physical abuse, and that there is a clear indication in this court's mind from the reasonable credible evidence that I've heard here, that . . . Ms. Gibson has been abused by Mr. Reyes, both on November l5th with the verbal threats, and on prior occasions that would make her very, very afraid of Mr. Reyes.
And under those circumstances I'm going to grant to Ms. Gibson a final restraining order.
Over appellant's objection, the judge then expanded plaintiff's parenting time from every Saturday from l:00 p.m. to Sunday at 7:00 p.m., to alternating weekends starting after school Friday to Tuesday morning.*fn1 This appeal ensued.
Appellant asserts as due process challenges constituting reversible error that the trial court: (1) failed to advise him of his right or afford him an opportunity to cross-examine plaintiff or her witness; (2) failed to swear in plaintiff's witness; (3) went "outside the bounds" in the way it conducted trial by taking an adversarial position towards appellant, improperly admitting the photographs, and in not following the appropriate procedure in interviewing the minor child; and (4) improperly allowed and relied upon plaintiff's testimony regarding prior acts of domestic violence not appearing in the complaint.
Appellant asserts as substantive error that the court failed to follow the two-step analysis required under Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006) for the entry of an FRO, i.e., making the required findings as to each of the elements of the predicate offense under the PDVA of terroristic threats, N.J.S.A. 2C:25-19a(3), and determining the FRO was necessary to protect plaintiff from immediate danger or further acts of domestic violence. According to appellant, the incident that occurred between the parties as presented in court was nothing more than a domestic squabble over transportation arrangements of their son during parenting time, which unfortunately involved an exchange of vulgarities in their son's presence, but was not domestic violence under the law. Thus, appellant submits, the trial court erred in entering the FRO against him. Appellant also argues the record did not justify the court's modification of the parenting time arrangement, particularly in view of the imminent custody hearing in Burlington County.*fn2
We are cognizant that when parties are unrepresented, a judge "often has to focus the testimony and take over the questioning of the parties and witnesses." Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006). We have admonished judges, however, specifically in PDVA proceedings, not to do so at the expense of the parties' due process rights. Ibid. Similar to Franklin, there was a deficiency in the process here because the procedure resorted to by the trial judge did not provide appellant an opportunity to cross-examine plaintiff or her witness, and it is clear that appellant was unaware of his right to do so. Ibid.; see also Peterson v. Peterson, 374 N.J. Super. 116, 125 (App. Div. 2005) (recognizing, in a PDVA case, that without cross-examination, "the integrity of the fact-finding process [is] compromised because the trial court [is] unable to fully and fairly assess credibility" (internal citation omitted) and we are "unable to determine to what extent plaintiff's domestic violence claims might have been successfully challenged if defendant had not been deprived of his constitutional right to due process and a fair trial"). In addition, plaintiff's witness was not sworn in prior to giving "testimony," and as the court made no credibility assessments or specific findings respecting any of the testimony before it, infra, we are unable to discern the extent to which the court relied on the statements of this witness in entering the FRO. See State v. Caraballo, 330 N.J. Super. 545, 554-55 (App. Div. 2000) (the oath serves as a reminder to the witness that he must truthfully testify and if he does not, he is subject to punishment).
The due process deficiencies were further compounded by the court's admission of plaintiff's photographs. The court found these photographs were "real" and "there was physical abuse," which we assume means the court deemed them to be evidential of prior physical abuse by appellant and which presumably had some bearing on the judge's ultimate decision to issue the FRO. These potentially critical pieces of evidence, however, were admitted over appellant's objection, without the court having required plaintiff to lay any type of foundation for them, such as when the injury depicted was alleged to have occurred, what the bruise resulted from, and when the photographs were taken in relation to the injury.
We also note the irregularity of the trial judge speaking with the nine-year-old child in chambers, without any record of the interview having been transcribed, see R. 5:8-6, particularly in the context of a PDVA proceeding in which the parties' minor son was a potential witness to the alleged incident.
Turning to the substantive challenge, to subject a defendant to an FRO, a plaintiff must first prove by a preponderance of the evidence that the defendant committed an act of domestic violence as defined by the statute, N.J.S.A. 2C:25-19a; N.J.S.A. 2C:25-29; Franklin, supra, 385 N.J. Super. at 542, and the trial judge must make specific findings that a predicate act of domestic violence has been committed, R. 5:7A(d). Thus in order for the court to find that appellant committed the predicate offense of terroristic threats as plaintiff pled, it must find plaintiff satisfied all the elements of N.J.S.A. 2C:12-3a or b. The court made no credibility assessments as to the contrasting testimony of the parties, nor did it make specific findings as to the elements of the predicate offense. The court's decision merely contained conclusory statements.
Moreover, the ruling is silent as to the second prong of Silver, supra, in that the court failed to specifically find that an FRO was necessary in this matter to protect plaintiff from immediate danger or from further acts of domestic violence, 387 N.J. Super. at 125. Accordingly, we vacate the FRO and reinstate the TRO and remand the matter for a further hearing on the FRO. The parenting arrangement set forth in the FRO shall remain in effect without prejudice to the right of either party to seek modification in the Burlington County action or a review in this remand based on proper proofs.
Reversed and remanded.