January 8, 2010
G. D'A., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-002209-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 21, 2009
Before Judges Payne and Miniman.
Defendant, G. D'A., a sometime actor, appeals from entry of a final restraining order entered against him after a trial at which he was found to have committed acts of domestic violence as defined by N.J.S.A. 2C:25-19a(13) and (14) by harassing and stalking his former girlfriend, J.V. See N.J.S.A. 2C:18-3 (harassment) and 2C:33-4 (stalking). On appeal, defendant argues that he was denied procedural due process because the evidence utilized by plaintiff, consisting of photographs of text messages, e-mails, cards, and letters, was not supplied to him prior to the trial, and the trial judge declined to adjourn the matter to permit him to obtain necessary rebuttal evidence.
The record discloses that, on May 20, 2008, plaintiff sought a temporary restraining order (TRO) against defendant. In her complaint, plaintiff alleged:
Def called her & played music, a love song. 5/19 - def emailed plt to log onto you tube, def posted sexual video of plt, with blog including plts phone #. Since June 2007, def emails, text messages, & mails letters to plt every other day of sexual nature. Def calls plt whore, slut, animal, spic, trashy.
In the space on the complaint provided to set forth any prior history of domestic violence, plaintiff alleged:
Since July 2007, def wants plt to return his calls & threatens to call child services if plt doesn't call him. Since Sept 2007 - def uses plts name to subscribe to magazines, plt is billed for them. Plt states in the past, def spit on her. Approx Jan 2008 -def called IRS about plt making money without claiming it. Def threatened to kill plain [sic] June 2007.
A hearing on the TRO was held before a hearing officer, who recommended that the requested relief be granted. The transcript of the hearing lists defendant as having appeared, but at oral argument on appeal, plaintiff's counsel stated that he was not present. In any case, defendant was served with the TRO at 1:40 p.m. on the day of its issuance. A hearing was scheduled to determine whether a final restraining order (FRO) should be entered.
On March 21, 2008, defendant filed for and obtained a TRO against plaintiff. The two matters were consolidated for purposes of an evidentiary hearing. Prior to the hearing date in the matter, defendant sought and was granted a one-week adjournment to permit him to retain an attorney. On the new hearing date defendant, appearing pro se, requested a further adjournment to September 2008, stating that both of the attorneys that he used were away for the entire summer. The judge denied an adjournment of that length, but indicated his willingness to again adjourn the matter for a short period to permit defendant to obtain representation. However, following several offers by the judge to grant a further brief adjournment, defendant determined to proceed unrepresented.
At the hearing, plaintiff testified that she and defendant had been romantically involved until June 2007 when she broke off the relationship. Thereafter, defendant filed charges against plaintiff for simple assault, but did not appear in court on the two occasions when the matter was scheduled for a hearing. Plaintiff additionally offered multiple photographs of text messages that she claimed were sent to her by defendant; numerous, lengthy e-mails from defendant; evidence of some of the approximately 300 magazine subscriptions that she claimed defendant had taken out in her name, thereby obligating her to pay the subscription price or to attempt to cancel the subscriptions*fn1; multiple cards and letters from defendant; evidence of seven allegedly unfounded reports to New York Child Protective Services that plaintiff claimed were originated by defendant; and evidence that defendant had posted sexually explicit videos of plaintiff on YouTube and that the videos had been picked up by pornographic sites. Plaintiff testified that, as a result of the postings, she had received unsolicited calls and messages from unknown men seeking sex. Additionally, plaintiff testified that, as the result of defendant's conduct, she was afraid of him, and when going out, attempted to disguise her appearance.
During the hearing, defendant contested much of plaintiff's evidence. In connection with the text messages, he first claimed that they had been sent two years ago, then that they must have been sent during a fight occurring one year earlier and, in another iteration, he denied that he had sent them and requested an opportunity to obtain phone records as proof. However, the judge denied his request, stating: "I offered you an opportunity to put this off and you wanted to go forward today, we're going forward today." Additionally, defendant denied sending some of the e-mails; he admitted to having reported plaintiff to Child Protective Services on only one occasion, arising out of plaintiff's alleged assault upon defendant, which was witnessed by plaintiff's daughter; he claimed that plaintiff had access to many of the passwords on his multiple e-mail accounts, permitting her to originate messages attributed to him; and he denied obtaining magazine subscriptions in plaintiff's name.
Significantly, defendant admitted to sending some of the e-mails, including an e-mail dated March 2, 2008, with the subject line "bigfazeech sent you a video," which contained a provocative photograph of plaintiff, the statement "[J.] I love you and I have soo much to say to you!", and an invitation to watch the video. Defendant testified that both he and plaintiff video recorded the couple engaging in sexual acts with the other's permission, and that the videos portrayed both oral and anal sex. However, defendant admitted that he did not have plaintiff's permission to post the videos. Defendant initially stated that he posted the videos in retaliation for calls from plaintiff made when she was having sex with others and from plaintiff's male friends. However, he had no proof of such calls, and the judge denied his request for authorization to obtain the necessary phone records. Later, defendant admitted that he had posted the videos with the knowledge that plaintiff would be upset by the dissemination of naked images of her. Defendant testified that he retained a disc containing approximately twelve sexually explicit videos, and that he had posted five to ten, although he claimed the one sent to plaintiff along with the provocative photo on March 2 to have been "nice."
During the course of his testimony, defendant also admitted to sending plaintiff an additional, lengthy e-mail on March 2, 2008 which contained a link to a video posting and the message that defendant continued to love plaintiff, that he would be working for one year at a movie studio near plaintiff's home, that he was in the process of buying a home in the area, and that he knew plaintiff was hiding from him because he thought he "would of ran into [plaintiff] at least a few times by now."
In support of his own request for an FRO, defendant testified that plaintiff telephoned him when she was having sex with others, so that he could hear their love-making, and that male friends of plaintiff made harassing calls to him. However, he offered no competent proof of either type of conduct, but merely contended that he could recognize plaintiff's breathing on a recording played to the judge - a contention that the judge later rejected as not credible.
At the conclusion of the hearing, the judge rendered an oral opinion finding no basis for entry of a FRO against plaintiff, but also finding that substantial evidence warranted entry of a FRO against defendant as the result of his relentless - if misguided - effort to reunite with plaintiff in the period from June 2007 until May 20, 2008 when plaintiff obtained a TRO against him. In this regard, the judge found defendant to have committed acts of domestic violence by harassing plaintiff with e-mails and with a video posting that he knew would anger her. In discussing the e-mails, the judge focused particularly on an e-mail that defendant admitted sending, dated April 29, 2008, which the judge read partially into the record, as follows:
1st off I want to say is I sent an attachment which you could download below of your new boyfriend leaving me messed up and threatening messages and they are very twisted some of the things he says. Do you know what I know is sick.... I know you[r] friends are all white trash low lives that get abortions all the time and they are the biggest scum of the earth and they will all go to hell for there [sic] crimes and there [sic] sins, they are all horrible people and are dirty and they breakup their own families[.] Disgusting. You should be in jail for murder and for everything that you did and I still have this tape and downloaded what you did in my car that day and never released it*fn2...
In another e-mail that defendant admitted sending, from which the judge quoted, defendant stated:
I really want to make peace and settle and fix this before I start my films, don't you? It will really mean a lot to me. Think about it[.] I taught you everything about the world. Nobody else showed you what I did. Think about all the 1st time experiences that you had with me.
The judge then noted that the e-mail concluded with defendant proposing plaintiff for a lead role in one of his four productions. The judge concluded: "[Defendant's] obsession with [plaintiff] is as bizarre as it is obsessive."
Additionally, the judge noted that defendant had admitted to posting at least one video of plaintiff's naked buttocks on YouTube, thereby subjecting plaintiff to obscene propositioning by numerous anonymous third parties.
Summing up the content of the e-mails that defendant admitted sending, the judge concluded that "[t]hese are fairly the words of an obsessive man who does not realize that this relationship has ended[,] who does not take no for an answer[,] and who will not cease to pursue [plaintiff] without being barred by court process." The conduct, the judge found, constituted both harassment and stalking as recognized by the Court in H.E.S. v. J.C.S., 175 N.J. 309 (2003). Accordingly, the judge entered a FRO against defendant. Additionally, he ordered that the local police department seize the DVD that defendant admitted retaining, which contained sexually explicit videos of plaintiff.*fn3 Upon defendant's representation that he was unemployed, the judge declined to award counsel fees in plaintiff's favor.
On appeal, defendant claims that he was unaware of the evidentiary basis for plaintiff's claims against him until the FRO hearing had commenced, and that although he had viable defenses, he was unable to present them because of lack of pre-trial notice of plaintiff's evidence and the judge's refusal to grant an adjournment to permit his to obtain contrary proofs. Thus, defendant contends, his due process rights were denied, and that the hearing should not have proceeded in a summary fashion and without discovery, contrary to the court's decision in Depos v. Depos, 307 N.J. Super. 398, 399-400 (Ch. Div. 1997).
We are satisfied, however, that the allegations made by plaintiff in her complaint provided sufficient notice of her claims and the likely evidence in support of those claims, since those allegations included defendant's YouTube posting; his e-mails, text messages and letters; his use of epithets; his threats to call Child Protective Services; and his use of plaintiff's name to obtain magazine subscriptions. Moreover, in contrast to the twenty-four hour preparation period found to be inadequate in H.E.S., supra, 175 N.J. at 321-24, the two weeks that intervened between service of the complaint and TRO on defendant and the conduct of the FRO hearing should have provided sufficient time for defendant to marshal his defenses, yet he presented no documentary evidence whatsoever at the hearing. Further, if defendant later obtained evidence that he claimed to be relevant to the charges against him, he could have sought relief from judgment pursuant to R. 4:50-1. He did not do so. Nor did he present any evidence on appeal that would tend to establish the validity of his position.
Moreover, we note that the judge's decision was premised solely upon the content of e-mails that defendant admitted to sending and upon an admitted posting of a video of plaintiff that, at very least, depicted her naked buttocks. Since defendant admitted such content, it was not necessary either for plaintiff to offer the video into evidence or for the judge to have viewed it.
We reject defendant's argument that cell phone calls between him, plaintiff, and plaintiff's male friends constituted "the primary basis upon which the final restraining order was entered" and that he should have been granted an adjournment to establish who called whom. As our summary of the judge's decision reveals, the judge cited the lack of evidence of phone calls from plaintiff and her male friends primarily as a basis for rejecting defendant's request for an FRO,*fn4 a determination on defendant's affirmative claim that has not been appealed. Although the judge also used the lack of such evidence in rejecting defendant's position that he posted the video of plaintiff on YouTube in retaliation for the allegedly harassing calls, we note defendant's eventual admission that he posted the video in order to harm plaintiff.
In sum, we are satisfied that plaintiff has proven by a preponderance of the evidence that she was a "victim of domestic violence" as defined by N.J.S.A. 2C:25-19d, subjected to domestic violence consisting of harassment and stalking, N.J.S.A. 2C:25-19a(13) and (14), and that a FRO was properly entered pursuant to N.J.S.A. 2C:25-29b.