August 27, 2009
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-0817-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 12, 2009
Before Judges Rodríguez and LeWinn.
Defendant A.T. appeals from the domestic violence final restraining order (FRO) entered against him in the Family Part on December 3, 2008. For the reasons that follow, we affirm.
The pertinent factual background may be summarized as follows. The parties were married at the time of the hearing in this matter, but they had been in the throes of divorce litigation since December 14, 2007. They have two daughters, who were eleven and five years old respectively as of the hearing date. By order of the Family Part entered in February 2008, plaintiff N.T. resides in the marital residence in Marlboro Township with the children and defendant lives elsewhere.
Plaintiff testified that on November 3, 2008, she received a telephone call at work from her elder daughter and her sister, both of whom were at home. Plaintiff was informed that defendant had called the home telephone, threatened to kill her sister and told their daughter to "tell your mother that something is going to happen to her." The police were called and they, in turn, contacted the Division of Youth and Family Services (DYFS) due to the threat conveyed to the parties' daughter.
Plaintiff filed a temporary restraining order (TRO) on November 6, 2008; she explained that the delay in filing was due to her work schedule; she "sometimes [works] double shift and . . . can't . . . find [a] replacement immediately." Plaintiff stated that the Marlboro Township Police Department had been "dealing with [the parties] . . . all year . . . because [they] had a civil restraint agreement . . . . [The] police [had] been to [the] house in the last year . . . about 40 times.
Plaintiff testified that defendant "calls [her] work constantly. He threatens people." Plaintiff stated that defendant "asks for [her] schedule[,]" when she has medical, dental and other appointments. In July 2008, the parties attended economic mediation in connection with their pending divorce; plaintiff stated that as she was driving home afterwards, defendant followed her in his car and tried to cut her car off on Route 9.
Plaintiff had previously sought a TRO in January 2008; at that time, she stated, defendant gave her a manuscript he was writing that contained language to the effect that defendant planned to "fly a plane into [the marital residence] in Marlboro and [to] kill himself on . . . his birthday."
Plaintiff testified that she just feel[s] . . . continuously that [she] cannot move on with [her] life because [defendant] tries to control every step [she takes]. He tries to intimidate [her]. . . .
And it continues. [She is] afraid to make a step. [She] look[s] behind [her] shoulder. [She] ask[s her] co-workers to walk [her] out of every place of employment because it continuously [is] either he waits or he follows. He calls. Any interaction that [they] have . . . , even if it's in court, he'll make sure that he will call [her] some horrible names.
. . . . [Her] mom takes care . . . of [the] kids and he passed by, not in the last month because [they] had [a] restraining order[,] but prior to that, he passes by the house because he knows that she is there and . . . [h]e'll make sure that he opens the window and yells something horrible to [her] mom.
Plaintiff also described an incident that occurred on December 29, 2007, when defendant called her "names like prostitute and whore" in the presence of the elder daughter, who told defendant not to call plaintiff such names. Defendant "tried to hit her or push her and [plaintiff] kind of stood in between. So instead of hitting [the daughter], he hit [plaintiff] . . . in the head with an open hand." On cross-examination, plaintiff acknowledged that she became involved in an argument with defendant after this incident in which she may have told him that she was "going to f---ing bury him."
The judge permitted plaintiff's mother, I.A., to testify over defendant's objection that she was "not mentioned in either this TRO complaint or prior TRO complaints." I.A. testified that, on approximately five occasions since January 2008, she had seen defendant "passing by [the house] . . . shouting [and] . . . yelling." He told her, "I'll kill you[,] you Russian prostitute." She added that defendant would frequently call the home phone; even when plaintiff changed her telephone number, defendant managed to learn the new number and continued to call. I.A. stated: "[H]e keeps saying that [plaintiff] is crazy and that he will kill her and that she's a prostitute, that she's a bitch and other dirty words. And he doesn't feel uncomfortable to say that in the presence of his children."
Plaintiff's sister, I.T., testified that she answered a telephone call from defendant on November 3, 2008, in which defendant stated that "[her] bitch sister deserve[d] to die and he [was] going to kill her one day." I.T. also heard defendant tell the parties' elder daughter, who had picked up an extension, "that something bad is going to happen to all of [them] . . .[,]" if the children did not live with him. She further testified to arguments that she had heard between the parties in which defendant would "call her names, always threatened [her]."
Defendant testified that since moving out of the marital residence, he has had difficulty seeing his children. He stated that on November 4, 2008, he filed a motion to address custody and parenting time issues. He denied making threats to plaintiff's sister on the phone on November 3, stating that he is "not crazy . . . not stupid to do something like that. It just doesn't make sense. . . . There's no motive involved in doing something as ridiculous as that."
Defendant testified that he has been in therapy, and stated that he wrote the manuscript about which plaintiff testified during the course of therapy and not for the purpose of frightening plaintiff. He denied that he drove past the marital residence "yell[ing] out" to plaintiff's mother. Defendant also denied that he followed plaintiff after economic mediation in October and tried to cut her off. Defendant claimed that plaintiff was "lying[.]"
Defendant produced a November 18, 2008 letter from DYFS stating that it was terminating any further investigation of, or services to, the parties' elder daughter. DYFS "conducted its required investigation and determined that the allegation was unfounded."
The trial judge rendered a lengthy decision from the bench. Following a detailed summary of the testimony, the judge stated:
[D]efendant says [that plaintiff's] motive is the custody dispute. And I can't say that that would be her motive. . . . [T]he custody dispute is proceeding before [another Family Part judge] . . . [who] will . . . listen very carefully to [the custody evaluator] and . . . other people in the case. . . .
But I also heard the testimony not only of the plaintiff but of her mother, . . . who is[,] I thought[,] a very credible witness and she cried when she testified that she truly believes that her daughter is in danger and that the defendant is a danger to her. She has been living with . . . plaintiff on and off for a period of 11 years.
She certainly has no real motive to lie. . . . [S]he loves her daughter. . . . But her testimony mirrored very closely what . . . [plaintiff] was saying in her direct testimony when [the mother] was outside in the hall. So it's nothing . . . [that] she was repeating.
[Plaintiff's sister]'s testimony [was] that the defendant many times threatened the plaintiff, threatened the family, . . . [s]he also while outside [of the courtroom] used the same word that . . . defendant calls . . . plaintiff a prostitute and again, that's a similar word. And she said that she is also very afraid for her sister's safety and well-being.
And I found those witnesses to be very credible. They testified very similarly even though . . . they didn't listen to each other's testimony.
So I find that cumulatively all of this leads the [c]court to the inescapable conclusion that . . . defendant did contact the residence, even though his phone records don't seem to indicate that from his home phone or his cell phone he called . . . plaintiff's residence.
I find that he did call the residence on or about November the 3rd, 2008[,] and that he did make this threat and that he did say[,] as the daughter remained on the phone[,] something bad was going to happen.
I do find that that did occur, just as testified to. . . . [P]laintiff got the phone call at work. Her sister called her immediately at work and said, look, make sure somebody is walking you out to your car. Why did she make that phone call?
[P]laintiff came to the courthouse a few days later, that's true. But I find just as she testified, she works two jobs and the first available time that she could come to the courthouse was on November the 6th. So I don't find that she filed the restraining order as suggested by the defense as a knee jerk reaction to receiving motion papers.
The judge found that defendant committed the offense of terroristic threats, pursuant to N.J.S.A. 2C:12-3, in that, "with the purpose to terrorize another[,]" defendant "engaged in a course of very alarming conduct with the purpose to alarm and seriously annoy . . . plaintiff[,] . . . [with] the purpose to harass her in so doing." The judge further found that defendant had committed the offense of harassment, pursuant to N.J.S.A. 2C:33-4(a), by purposefully making "communications in a manner likely to cause . . . plaintiff annoyance or alarm . . . ."
The trial judge found that plaintiff had "no other reason . . . to be here really other than her concern for her safety and well-being and not only has she expressed it, but her mother and her sister very credibly expressed it as well. . . ." The judge concluded:
I do find it's necessary to issue a final restraining order in favor of . . . plaintiff because not only has she proved by a preponderance of the credible evidence the elements of terroristic threats and harassment, she has also proved to me that a final restraining order is necessary to protect her from immediate danger and to prevent further abuse . . . .
On appeal, defendant raises the following arguments for our consideration:
POINT ONE: THE WORDS ALLEGED IN THE DOMESTIC VIOLENCE COMPLAINT DO NO CONSTITUTE AN ACT OF DOMESTIC VIOLENCE COGNIZABLE UNDER THE PREVENTION OF DOMESTIC VIOLENCE STATUTE
POINT TWO: THERE IS NO COMPETENT TESTIMONY SUPPORTING THE PREDICATE ACT ALLEGED
POINT THREE: IT WAS PREJUDICIAL ERROR NOT TO ASSIGN THE TRIAL OF THIS DOMESTIC VIOLENCE CASE TO THE JUDGE PRESIDING OVER THE PARTIES' HIGH CONFLICT CUSTODY DISPUTE WHO WAS EXPERIENCED WITH THE PARTIES, AND THEIR DISPUTE
POINT FOUR: THE TRIAL COURT'[S] INADEQUATE FINDINGS COMBINED WITH PLAINTIFF'[S] MOTIVATION TO MARGINALIZE DEFENDANT IN THIS HIGH CONFLICT CUSTODY LITIGATION, MANDATE THERE BE A REMAND FOR FURTHER PROCEEDINGS BEFORE THE TRIAL JUDGE PRESIDING OVER THE CUSTODY LITIGATION IN THIS FAMILY DISPUTE
Having considered these contentions in light of the record and the controlling law, we find them to be without merit. We affirm substantially for the reasons stated by Judge Honora O'Brien Kilgallen in her decision rendered from the bench on December 3, 2008; we add only the following comments.
We note initially that our scope of review is limited. Where, as here, "[o]ur study of the record . . . convinces us that the trial court carefully scrutinized the testimony and the record before making factual determinations[,] . . . it [would be] improper for [this court] to engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). We will not disturb the "'factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).
"Furthermore, matrimonial courts possess special expertise in the field of domestic relations. . . . Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
Here, the trial judge found that defendant's conduct, as described by plaintiff and her witnesses, constituted a violation of N.J.S.A. 2C:12-3, which prohibits "threaten[ing] to commit any crime of violence with the purpose to terrorize another[,]" and N.J.S.A. 2C:33-4(a), which prohibits "[m]ak[ing] . . . a communication . . . in . . . any . . . manner likely to cause annoyance or alarm[.]" We are satisfied that these findings are supported by the record. Rova Farms Resort, Inc., supra, 65 N.J. at 484.
Based on those findings, and in light of the parties' history of domestic violence, the judge determined that plaintiff was in need of an FRO to protect her from "immediate danger and . . . further abuse . . . ." We conclude that the trial judge properly carried out the "two-fold" task set forth in Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). First, the judge "determine[d] whether . . . plaintiff ha[d] proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a had occurred." Ibid. Having thus found "the commission of . . . predicate act[s] of domestic violence," the judge then proceeded to determine "whether a domestic violence restraining order should be issued . . . ." Id. at 126, 127.
We reject defendant's contention that he was prejudiced by the discrepancy between the November 4, 2008 date set forth in the TRO and plaintiff's testimony that the triggering event occurred on November 3, 2008. In support of his assertion that he made no phone call to the marital residence as plaintiff's sister described, defendant produced his cell phone records for both dates; plaintiff's home telephone number appeared on neither date. Nonetheless, the trial judge concluded that defendant could have used another phone to make the call. The issue of credibility is critical here, and we will defer to the trial judge's assessment of that issue unless presented with compelling evidence that such deference is unwarranted, which we do not find to be the case. Locurto, supra, 157 N.J. at 474.
Defendant's attempt to characterize his conduct as an "ordinary domestic contretemps" that does not rise to the level of domestic violence is misplaced, as is his reliance upon Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995), in support of that agreement. The message defendant intended to convey to plaintiff in his telephone conversation with the parties' daughter, was that "something bad" was going to happen to "all of [them]" if the children did not live with him. Moreover, defendant had previously engaged in an ongoing pattern of threatening and harassing plaintiff, as the trial judge found.
Defendant further argues that the fact that DYFS determined a claim that the daughter who heard that threat had been abused or neglected to be "unfounded" disproves the elements of this offense. We disagree. DYFS' investigation is immaterial to a Family Part judge's obligation to weigh the testimony in light of the statutory standards of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, in determining whether defendant's conduct constituted a predicate offense warranting imposition of an FRO.
The gravamen of defendant's argument is his continuing denial that he spoke the words in issue on November 3, 2008, and that he has threatened or harassed plaintiff in the past. This position stands or falls on credibility determinations, which, as previously noted, are particularly within the purview of the trial judge, Locurto, supra, 157 N.J. at 474, and to which we accord great deference. Cesare, supra, 154 N.J. at 413.
Defendant argues that the trial judge erred in accepting plaintiff's testimony "as to past acts[,]" and that it was "nearly impossible to adequately prepare" to meet such testimony "without prior discovery." We note, however, that with one exception, all of the prior acts to which plaintiff testified were set forth in the addendum to her TRO. Therefore, we are satisfied that defendant had adequate notice of, and the opportunity to prepare a defense against, those prior acts. See H.E.S. v. J.C.S., 175 N.J. 309 (2003).
The only prior incident to which plaintiff testified that was not included in her TRO was that of December 29, 2007, when she alleged defendant hit her. As noted, however, defendant not only did not protest that testimony, he thoroughly cross-examined plaintiff on that incident, including confronting her with a voicemail in which she allegedly threatened him. Defendant has no basis on which to claim prejudice in this regard.
Finally, we address defendant's argument that the domestic violence hearing should have been held before the Family Part judge assigned to handle the parties' divorce and custody dispute. First, defendant's contention regarding the "sequencing and timing of custody and parenting time issues" were before Judge Kilgallen; defendant pressed this "timing" issue in his defense against the FRO. The judge, however, rejected that defense. For the reasons stated, we are satisfied that the judge's determination was supported by the record.
Secondly, we disagree with defendant's assertion that the judge overseeing the parties' divorce would necessarily be in a superior position to weigh the parties' credibility in a domestic violence proceeding. Defendant presents no support for this bald assertion. We conclude that no further discussion is necessary in this opinion. R. 2:11-3(e)(1)(A).
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