December 24, 2009
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-002865-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 28, 2009
Before Judges Payne and C.L. Miniman.
Defendant D.M. appeals from a June 27, 2008, final restraining order (FRO) barring him from contacting plaintiff R.M., his mother; her family household members; her co-workers; and her employer; and barring him from plaintiff's residence and place of employment. Because the acts found by the judge were not domestic violence, we reverse.
Plaintiff testified at the final hearing that during the afternoon of May 10, 2008, defendant, who is disabled and receives SSI benefits, knocked on the door to his mother's home, but she would not admit him. He began screaming that it was his house, not hers. Plaintiff testified that defendant then went away. It is clear from the transcript of the hearing that plaintiff was having great difficulty remembering what had happened and when. She offered that her son Byron would be better able to testify. The judge reviewed the allegations in her complaint with her and she agreed with them.
Specifically, plaintiff alleged in her complaint that a realtor, Delacent Womack, was in her home on May 10, 2008, and that defendant told the realtor to get out. Plaintiff then volunteered, she and Byron "had asked the real estate [sic] to come to the house because we wanted to sell the house." The realtor put a "For Sale" sign in front of the home and, plaintiff claimed, defendant's wife saw the sign. Defendant then came by and took down the sign and put it in the garage. He told the realtor that the house was not for sale because it was his house, even though he had not paid the mortgage or rent in many years.
When asked if defendant said anything to the realtor, plaintiff replied that she could not say because she was outside and the realtor and Byron were inside the house. When defendant and the realtor came outside, plaintiff could hear him yell at the realtor. Because defendant had a sword or a big knife in his hand, the realtor, who did not want to be in a family argument, left. Defendant then went into his room and threw a radio out the window. This concluded plaintiff's testimony.
Defendant testified next and admitted that he was at his mother's home on May 10, 2008. When he arrived at the house, he entered with his key and saw the realtor sitting in the dining room. He asked who she was and she replied that she was a realtor. Defendant asked her to "pack up her stuff and leave." He explained that he bought the house with the money he received after he broke his leg; he again asked her to leave. The realtor got up and called upstairs to plaintiff, who came downstairs. The realtor said that defendant had asked her to leave and that she was leaving. Defendant then told his mother that he did not buy the house for her to sell it and began to argue with her. Plaintiff and the realtor then left the house and called Byron.
Defendant testified he then went to his room to change his clothes and take a shower. As he left his room to go to the bathroom, Byron and the realtor were sitting in the dining room. He said nothing to them, brushed his teeth in the bathroom, returned to his bedroom, got dressed, and left to get something to eat. While dining, he received a telephone call from a friend, who reported that the police were at defendant's residence. Defendant went to the police station to inquire about this report, but was told they had nothing. He then returned to his residence. At that point in his testimony, he advised the judge that he had the realtor there to testify and the CAD Ticket Event for the incident reflecting what plaintiff told the police on May 10, 2008.*fn1
The CAD Ticket Event, which reflected the names of the officers dispatched, stated, "Caller's brother giving real estate agent a hard time. Units dispatched. Primary unit." Defendant then called Womack, whom he had subpoenaed to testify. The judge remarked for the record that he knew Womack. Defendant inquired if it would be a conflict of interest, and the judge replied that he did not think it would affect his objectivity.
Womack testified she was at plaintiff's house to conduct an open house from 1:00 to 5:00 p.m. on May 10 as the agent for plaintiff and her son Byron. Mid-afternoon, defendant entered the house, approached Womack, and told her she needed to gather her things and leave because the house was not for sale. Womack asked who he was and he responded. He said he did not want to create problems, but she needed to leave. She began to comply and defendant went into a bedroom. When he came out, he was holding a camping knife in a case. He stopped, looked at her, and suggested she "leave now because if [you] don't, [you] will witness a murder." He then proceeded toward the kitchen and Womack asked if that was a threat. He replied, "well, this is a family matter and [you] just need to leave." Womack asked him where her signs were and he said he did not have them. She then gathered her belongings and called out to plaintiff to come downstairs and then she went outside.
On cross-examination,*fn2 Womack admitted she did not witness a radio coming out the window although she heard loud music. She further admitted that she did not witness defendant threatening or putting his mother in danger in any way. She further acknowledged that when defendant entered the home, plaintiff was upstairs on the second floor. On further questioning by the judge, Womack stated she understood the threat defendant made to have been directed at her and said she felt threatened by it.
The judge placed his decision on the record at the conclusion of the proofs. He found that plaintiff had proven by a preponderance of the evidence that on May 10, 2008, "this defendant engaged in conduct that violated the harassment section*fn3 of the Prevention of Domestic Violence Act,"*fn4 because defendant "engaged in conduct that was alarming and that was for the purpose of alarming and seriously annoying [plaintiff]." He found the testimony of plaintiff and Womack credible. He also observed, if the defendant had a concern with respect to title interest or whether the property was properly or legally being proffered for sale by the plaintiff . . . and her son Byron McKinnie, that his recourse was with the Courts of the State of New Jersey, that that recourse did not include uttering things to the real estate agent which caused that real estate agent upset and harm, and caused that real estate agent to leave the premises at the time.
The judge found that the deed proffered into evidence by defendant established that title to the property was in plaintiff and her son Byron and found that an FRO was necessary to prevent another act of domestic violence, especially because there was an underlying dispute about title to the property, which could lead to further arguments. This appeal followed.
Defendant contends on appeal that the weight of the evidence does not support the FRO because plaintiff never testified that she was alarmed, annoyed, or felt threatened or harassed. He also contends that the judge should have recused himself or placed the nature of his relationship with Womack on the record. Defendant urges that the judge violated his right to due process when he denied defendant's request for an adjournment of the hearing to secure counsel and further abused his discretion in relying on inadmissible and unauthenticated evidence. Finally, he contends that the judge's leading questions to plaintiff and cross-examination of defendant led to an unjust result, an issue not raised before the trial court.
Appellate review of the trial court's fact-finding function is circumscribed so that findings by the trial court are binding on appeal if supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Trial courts that "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). However, even in this latter instance, the reviewing court will "nonetheless accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S.Ct. 7, 168 L.Ed. 2d 784 (2007).
The Supreme Court has observed that family courts possess special expertise and experience in the field of domestic relations. Cesare, supra, 154 N.J. at 412. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. While we remain cognizant that we owe no special deference to the trial judge's conclusions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we will not "second guess [a Family Part judge's factual] findings and the exercise of their sound dis- cretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
When the Act was adopted, the Legislature declared that "domestic violence is a serious crime against society" because "there are thousands of persons . . . who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants." N.J.S.A. 2C:25-18. Thus, "the focus of the Legislature was regular serious abuse between spouses. That this is so is underscored by the references to torture, battery, beatings, and killing in the findings." Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995) (emphasis added); see also Corrente v. Corrente, 281 N.J. Super. 243, 247 (App. Div. 1995).
The Legislature intended the Act "to assure the victims of domestic violence the maximum protection from abuse the law can provide." Peranio, supra, 280 N.J. Super. at 53 (quoting N.J.S.A. 2C:25-18). Further, the Legislature stress[ed] that . . . it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public. To that end, the Legislature . . . encourages the broad application of the remedies available under this act in the civil and criminal courts of this State. It is further intended that the official response to domestic violence shall communi- cate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the existing criminal laws and civil remedies created under this act will be enforced without regard to the fact that the violence grows out of a domestic situation. [N.J.S.A. 2C:25-18.]
The term "victims of domestic violence" encompasses persons protected under the Act and includes parents, as here. N.J.S.A. 2C:25-19d. "'Domestic violence' means the occurrence of one or more of [fourteen specific criminal] acts inflicted upon a person protected under this act by an adult or an emancipated minor . . . ." N.J.S.A. 2C:25-19a. "In enacting the domestic violence law, the Legislature did not create a new class of offenses or interdict acts which otherwise were not addressed by the criminal law, but ensured that [victims of domestic violence] who were subjected to criminal conduct had full access to the protections of the legal system." Corrente, supra, 281 N.J. Super. at 248; Peranio, supra, 280 N.J. Super. at 54.
In addition to proving one of the enumerated criminal offenses, the Act also provides that:
[T]he standard for proving the allegations in the complaint shall be by a preponderance of the evidence. The court shall consider but not be limited to the following factors:
(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;
(2) The existence of immediate danger to person or property;
(3) The financial circumstances of the plaintiff and defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the protection of the victim's safety; and
(6) The existence of a verifiable order of protection from another jurisdiction. [N.J.S.A. 2C:25-29a (emphasis added).]
One of the specific criminal acts is "harassment" in violation of N.J.S.A. 2C:33-4, which is the only specified act said to have been inflicted upon plaintiff. That statute provides in pertinent part:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person. [N.J.S.A. 2C:33-4.]
Each statutory subsection is "free-standing, because each defines an offense in its own right." State v. Mortimer, 135 N.J. 517, 525, cert. denied sub nom., Mortimer v. New Jersey, 513 U.S. 970, 115 S.Ct. 440, 130 L.Ed. 2d 351 (1994).
[S]ubsection (a) proscribes a single act of communicative conduct when its purpose is to harass. Under that subsection, annoyance means to disturb, irritate, or bother. Subsection (b) (the assault and battery or physical contact harassment section) deals with touchings or threats to touch, and it does not require the intended victim to be annoyed or alarmed. In contrast to subsection (a), which targets a single communication, subsection (c) targets a course of conduct. Subsection (c) proscribes a course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy an intended victim. [State v. Hoffman, 149 N.J. 564, 580 (1997).]
To prove a violation of N.J.S.A. 2C:33-4c, which the judge found here, the plaintiff must establish the purpose to harass. D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994); E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990). Additionally, the plaintiff must prove "'a course of alarming conduct' or repeated acts intended to alarm or seriously annoy another." Corrente, supra, 281 N.J. Super. at 249 (quoting Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988)); Peranio, supra, 280 N.J. Super. at 54.
The purpose of subsection (c) is to reach conduct not covered by subsections (a) and (b). For example, if a person were to ring a former companion's doorbell at 3:00 p.m. on Sunday, flash bright lights into her windows on Monday at 6:00 p.m., throw tomatoes into her front door on Tuesday at 6:30 p.m., throw eggs on her car on Wednesday, and repeat the same conduct over a two-week period, a judge could find that subsection (c) has been violated. We do not imply by that example that five or more episodes are required to establish a course of alarming conduct. That determination must be made on a case-by-case basis. We conclude only that serious annoyance under subsection (c) means to weary, worry, trouble, or offend. [Hoffman, supra, 149 N.J. at 580-81.]
Harassment in violation of N.J.S.A. 2C:33-4c does not automatically warrant the issuance of an FRO because the Act mandates that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of violence between the parties including previous threats, harassment and physical abuse, and in light of whether immediate danger to person or property is present. N.J.S.A. 2C:25-29a(1) and (2). This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened. [Peranio, supra, 280 N.J. Super. at 54 (emphasis added).]
Although the judge found that defendant engaged in a "course of alarming conduct or of repeatedly committed acts" under N.J.S.A. 2C:33-4c, defendant clearly did not engage in a course of conduct, but rather "a single act of communicative conduct" under N.J.S.A. 2C:33-4a. Hoffman, supra, 149 N.J. at 580. The judge did not find that it was defendant's purpose to harass plaintiff with this conduct, finding only that his conduct caused the realtor upset and harm and that defendant's conduct on May 10, 2008, was "alarming." However, this alarming conduct could hardly have alarmed plaintiff, who was upstairs the entire time according to Womack, whom the judge found credible. Furthermore, domestic violence is "ordinarily more than an isolated aberrant act." Peranio, supra, 280 N.J. Super. at 54. The judge also did not find a previous history of domestic violence, N.J.S.A. 2C:25-29a(1), nor did he find the existence of any immediate danger to plaintiff, N.J.S.A. 2C:25-29a(2), two important factors to consider. Peranio, supra, 280 N.J. Super. at 54. Thus, the record before the Family Part was insufficient to support a finding of domestic violence.