September 15, 2009
VICKI HARTMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-000781-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2009
Before Judges Payne and Waugh.
Defendant Vicki Hartman appeals from a final domestic violence restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to - 35. Because the trial judge relied upon recordings of telephone conversations that were not made part of the record, we remand to the Family Part for a new trial.
We discern the following facts from the record.
N.V. and Hartman had known each other for approximately five years when the events that gave rise to this appeal occurred. According to N.V., the relationship was intimate for only the first two years. N.V. testified she tried to remain friends with Hartman following the termination of their intimacy, in part because she had loaned $3,850 to Hartman in August of 2007 and it had not been repaid. N.V. obtained a temporary restraining order in 2005, apparently based on harassing telephone calls, but the matter was dismissed following trial.
N.V. testified that Hartman repeatedly called her work, home, and cell phone to the point where her voicemail inboxes would fill up with messages. She moved at the end of July 2008 and did not give Hartman her new address. Nevertheless, Hartman obtained her address within a week. She further alleged that Hartman called her and her boyfriend using private numbers and different names.
The specific events that gave rise to the application for a restraining order occurred on October 24, 2008, at N.V.'s townhouse, which is approximately an hour and one half from Hartman's residence. N.V. testified that, as she drove to her mailbox, she saw Hartman's vehicle at the end of her street. According to N.V., Hartman put her vehicle in reverse and backed up so that the two vehicles were next to each other. N.V. then went to the end of the street and drove away. Hartman followed her. N.V. testified that Hartman "chased" her through Long Branch until she flagged down a police officer, who directed her to the police station where she filed her complaint and application for a temporary restraining order.
Hartman maintained that she and N.V. had been intimate throughout the five-year period, but that N.V. occasionally had "affairs" with others. She denied that she ever went to N.V.'s home or workplace uninvited, or called N.V. as frequently as N.V. alleged. Hartman also denied having access to any of N.V.'s personal information.
Hartman testified that she went to N.V.'s townhouse on October 24, 2008, for a pre-arranged meeting. She claimed that the two had agreed via e-mail that Hartman would meet N.V. at her townhouse in order to give her a check to repay the debt. Hartman maintained that the meeting was necessary because N.V. claimed she never received her checks through the mail. According to Hartman, she tried to communicate with N.V. near the mailbox, but N.V. just drove away. Hartman maintained that she followed N.V. because N.V. was supposed to show her back roads for her to drive to her home. As soon as she noticed they were headed in a different direction, Hartman tried to call N.V. but received no answer.
After hearing testimony on October 28, 2008, the trial judge made the following findings of fact and conclusions of law:
Now, in this matter the complaint here alleges basically we have harassment under N.J.S.A. 2C:33-4. The harassment alleged are... the more recent phone calls that we listened to and also the incident on October 24th leading the plaintiff to go to the Long Branch Police Department to apply for a temporary restraining order which she received that day.
... [T]here's two central themes. One is the issue, one is the relationship issue and the fact of whether that's over or not. And the plaintiff has testified she's moved on and has a relationship with a gentleman who's here in Court.
And the second issue is that there is money that has apparently been acknowledged to be owed. The plaintiff contends it is $3,400 or so and none of it's been paid back; $3, I should say. And the defendant testified that she has paid everything back except $1,300. And that's the reason she went to the house on the 24th, the plaintiff's condo in Long Branch. And testified that it was an arranged meeting at that time.
But apparently at that point, again, that is a dispute in testimony. That is a credibility call that I have to make there. The plaintiff testifies she did not arrange any type of meeting for a drop off of a check. And in fact when she saw the defendant's vehicle she pulled out of the driveway and proceeded to the Long Branch Police Department.
Again, the defendant's version is the opposite of that. That it was an arranged meeting. It was to pay the last payment. That actually was not accomplished that day. So that is really what I have to determine. It's really a credibility call about that factual situation. And in whether in listening to those phone calls, whether or not there was a harassing nature to those phone calls. And again, and I'm really more focused in on the October phone calls and the nature of those calls.
So under the domestic violence statute in order to determine whether or not the temporary restraining order should be made final I have to find two things; one that there's been an act of domestic violence. And two, that the restraining order is necessary in order to protect the plaintiff's health and well-being in the future.
And I have to find that both of those items have been proven by the plaintiff by a preponderance of the evidence meaning simply more likely than not that they, that she has met that burden or that those matters exist. And that's under  Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).
It's clear to me that with regard to the issue of the money, that's clearly something that should be handled in small claims court. Ma'am,... it seems like based on the testimony, you haven't had any further communication with the defendant. But you know what, there should be no more waiting for the mail. If you're not getting the money, you file the matter in small claims court and you deal with it that way.
That way there's, that one situation that you're dealing with over the money is handled in court. You'll go to small claims court. You'll go to mediation. And then if it's not settled a judge will decide that case.
So the second part which is the harder part is the situation dealing with the restraining order and whether there's domestic violence here. And it's clear that the parties had a relationship, a relationship that's again, been on and off over a five-year period. That relationship has clearly ended at this point. And the plaintiff has moved on and is in a new relationship.
She has indicated she hasn't had communication with the defendant for several weeks. And based on my review and listening to those calls, the nature of those calls although it's kind of subtle, it was mentioned that, to get together. The defendant was indicating that, you know, if you want to communicate with me about the payments, you have to talk to me. But have to talk to me was more what was emphasized than the money itself. It was kind of like I will hold this out here. I will hold this check out here but you have to talk to me about our relationship and what the status of our relationship is.
And I did find that it was clearly, in some of the parts of it were threatening in nature. It was subtle, but to me it was clearly a threatening situation that I heard specifically with, -- one of the last messages dealing with the fact that if, that she would, the defendant would let, I guess the plaintiff's boyfriend's ex-wife know of the situation and that she would handle it. And that again, that was in a manner that was in a threatening manner meaning handle it in a way, not in a civil way, but in a way that could bring harm to the plaintiff. That's the way I interpreted what I heard there.
And again, the language that was used and the tone in which it was used was clearly in a threatening manner and a harassing manner. And it's clear that the plaintiff cannot continue to not answer her phone at work or have phone calls made to her home. She should not be subject to that.
And again, this works both ways. If the Court enters a restraining order, you can't have contact the other way either. So that should be understood.
But I clearly feel that... this is a situation where the plaintiff has been subject to harassment. And it has been all of those things and all of those calls and these actions by the defendant have been done with the purpose to annoy [and] to alarm the plaintiff. And she has been alarmed. I can see that in her face. And she wants to get past this relationship.
Again, unfortunately this money issue is there. It probably would almost be worth it to let the money go instead of dealing with this, or dealing with harassment and basically threatening her peace and peace of mind I should say.
This appeal followed.
Our scope of review of the trial judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); 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.
However, our review of the record in this case is fatally hampered by the fact that we do not have a complete record of an important aspect of the proceedings. During the trial, the judge listened to one or more recordings of telephone conversations between the parties. The trial judge relied on those calls in reaching his decision to grant a final restraining order, as is evident from his oral decision. For example, he stated: "the language that was used and the tone in which it was used was clearly in a threatening manner and a harassing manner." Rule 1:2-2, which generally requires a verbatim record of all proceedings, specifically requires that "[u]nless a transcript thereof is marked into evidence, a verbatim record shall also be made of the content of an audio or video tape played during the proceedings and the tape itself shall be marked into evidence as a court's exhibit and retained by the court." Neither was done in this case, so that, in addition to having no transcript of the calls themselves, it is not possible even to ascertain what recordings were used and what specific calls were played for the trial judge.
Hartman also contends that she was not given the opportunity to be represented by counsel or to cross-examine N.V. We note that her response to the trial judge's inquiry as to whether she wished to be represented by counsel was ambiguous, containing both a "yes" and a "no," although the trial judge clearly interpreted her response as a waiver of counsel. In addition, we note that the trial judge never specifically asked Hartman if she had any questions she wanted to ask N.V., although Hartman never indicated that she wanted to do so. She was certainly given every opportunity to present her version of the events. Under the circumstances, we would not find those sufficient reasons to vacate an otherwise sound decision.
Because we have determined that it is necessary to vacate the FRO and remand for a new trial because of the difficulties inherent in recreating the record of the telephone calls that were not even identified for the record, Hartman will have an opportunity to take advantage of her right to retain counsel and question N.V. should she wish to do so.
In summary, we are remanding to the Family Part for a new trial to be scheduled promptly. We convert the FRO to a temporary restraining order, so that the restraints will remain in place pending the further order of the Family Part.
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