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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...