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J.D. v. M.F.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 11, 2010

J.D., PLAINTIFF-RESPONDENT,
v.
M.F., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-05-203-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2009

Before Judges Stern and J. N. Harris.

Following a querulous trial, Judge John R. Rauh entered a final restraining order (FRO) in favor of plaintiff pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on findings that defendant harassed plaintiff. In this latest appeal between the parties, defendant argues that he was denied a fair trial and that his conduct did not amount to domestic violence. We reject defendant's arguments and affirm.

Defendant and plaintiff were in a long-term unmarried relationship spanning 1993 to 2006, and two children were born as a result of this liaison. After the parties split they first engaged in palimony litigation in the Family Part, later to be by this court.

The predicate events surrounding the current appeal took place in the early morning hours of September 19, 2008. Defendant took flash-enhanced photographs outside of plaintiff's residence, allegedly to gather evidence to present in court against plaintiff and her boyfriend in connection with the parties' then-pending dispute. Plaintiff and her boyfriend were finishing up their showers and getting ready to go to bed when they saw flashes of light outside the bedroom window. They witnessed defendant taking photographs from the inside of his vehicle, before he proceeded to drive away. Defendant fully admitted to these actions at the FRO hearing:

THE COURT: Well, 1:45 [a.m.], you concede that you're there. I guess you take issue with whether you stopped or not, but they may have seen flashes. So, what were you doing, regardless of whether you stopped or not?

MR. F[.]: I was taking pictures showing his truck in front of her house at that time of the day.

THE COURT: Why?

MR. F[.]: Well, if I - if I divulge that information, it kind of gives my hand away for - for the case that I'm trying to pre[s]ent. And she can go talk to her attorney about it and come up with a defense. But I can assure you that - .

In the early afternoon of September 19, 2008, around lunchtime, plaintiff applied for, and was granted, a temporary restraining order (TRO) against defendant. Later that day, defendant was served with the TRO and less than an hour later, he mailed a motion to the Family Part against plaintiff for increased visitation time with the parties' minor children.

In plaintiff's TRO application, she focused on the earlier events of that morning, but also mentioned several other incidents during which defendant tried to force himself on her, or angrily confronted plaintiff's boyfriend and herself. The complaint stated, in response to Question 1, "[a]ny prior history of domestic violence reported or unreported?" the following:

June 08, Def[endant] was parked outside pla[intiff's] residence awaiting pla[intiff's] boyfriend to exit the residence. Def[endant] began taking pictures of pla[intiff's] boyfriend [and] asked pla[intiff's] boyfriend how the accommodations w[]ere[?] Pla[intiff] has filed for three TROs in the past for incidents including physical assault [and] harassment. Def[endant] has climbed thr[ough] pla[intiff's] window early in the morning took off his clothing [and] attempted to have relations w[ith] the pla[intiff]. Pla[intiff] told def[endant] she was going to call the police, def[endant] got dressed [and] left the residence. Pla[intiff] reports while parties were going thr[ough] their separation def[endant] would come to the residence [at] various times. During another occasion pla[intiff] had locked her doors [and] yet def[endant] was able to gain entry [and] harass pla[intiff].

On October 1, 2008, the parties appeared before Judge Rauh on plaintiff's application for a final restraining order (FRO). Because both parties appeared pro se, the court tried to direct their testimony and guide the questioning of both plaintiff and defendant. He was marginally successful. In addition to discussing the immediate incident of defendant's photographing plaintiff's residence and the boyfriend's truck, the court asked plaintiff, "[a]nything else you think I should know?" Plaintiff proceeded to elaborate on several prior incidents and confrontations--including numerous hearsay references--only some of which were mentioned in her current complaint.

Judge Rauh then allowed defendant to present his version of the events, questioning him about the photographing incident and the other alleged confrontations. The parties interrupted each other and proceeded to bicker between themselves as the court listened to the resentment-filled dialogue. The questioning continued with some objections by both parties as to the line of questioning, while the judge allowed certain testimony and overruled some questioning about irrelevant issues.

At the end of the parties' presentations, Judge Rauh deliberated upon all of the testimony and the incidents alleged, and found that the photography alone--and especially in addition to the other incidents--was evidence of harassment, warranting the issuance of a FRO. Specifically, Judge Rauh found the following:

[Y]ou being out there, sir, quarter of two in the morning, in my view qualifies, in and of itself as harassment. Even assuming that you were trying to build your case, it could not have any other affect but to annoy or alarm Ms. D[.]. And especially in light of the prior history.

And quite frankly, I want to make a comment on your presentation here today. It's not - it just doesn't seem, quite frankly, to be coherent in the sense that you're thinking clearly, sir. And, you know, given your presentation here today, if I were the Plaintiff, I would be concerned. Your theory of the case that she somehow knew that you were going to file a custody motion because your step-daughter had been there, it's simply - those are dots that you can't connect and you concede to being out there at quarter of two in the morning taking pictures. And that's harassment, sir, regardless of whether you were parked or not.

Defendant took issue with the ultimate conclusion of the judge and filed an informal and instantaneous motion for reconsideration, which Judge Rauh denied that same day. This appeal resulted.

Defendant claims that the trial court erroneously considered acts of domestic violence that were not alleged in plaintiff's complaint; that defendant's conduct was not actionable as domestic violence; that defendant was denied due process of law by being deprived of a full opportunity to present his case and to defend himself; that the record in the Family Part was not a complete and full record, which prevents proper appellate review; and that the trial court applied an improper burden of proof. We have considered all of the arguments of the parties, being careful to excise evidence contained in both parties pro se briefs and appendices that was not presented to the Family Part, and conclude that the FRO was validly issued. We affirm.

This court's review of a Family Part determination is a narrow one, and the findings of the trial court are not to be disturbed, "unless [the appellate court] is 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." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). On the other hand, a trial court's interpretation of the law and the consequences that flow from established facts are not entitled to any special deference. Thus, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)).

J.D., as plaintiff, had the burden at the FRO hearing of satisfying the enumerated elements of harassment. The legislature has characterized harassment as an offense when a person acts "with purpose to harass another . . . [and]

[e]ngages 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(c). Critically, it must be determined that the defendant had a "conscious objective" to harass the plaintiff; the mental state is a central element to this finding. State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989). A finding that defendant acted with the intent to "alarm or seriously annoy" is "integral" to a determination of harassment. Bresocnik v. Gallegos, 367 N.J. Super. 178, 183 (App. Div. 2004) (citing E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990)).

For the most part, defendant spins his argument around the alleged lack of due process that he received during the FRO hearing. Our courts have dealt with the issue of due process during FRO hearings, noting the seriousness of such charges, and finding that a defendant must be given ample opportunity to defend himself against the allegations. Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006) (citing Bresocnik v. Gallegos, supra, 367 N.J. Super. at 181).

Both defendant and plaintiff appeared pro se in this proceeding, and our courts have noted that in pro se trials, "a judge often has to focus the testimony and take over the questioning of the parties and witnesses." Id. at 543. This does not mean, however, that such questioning may be done "at the expense of the parties' due process rights." Ibid.

When courts consider evidence in order to make a predicate finding pursuant to N.J.S.A. 2C:33-4(c), "[b]ecause a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard." Cesare, supra, 154 N.J. at 405. In Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995), we noted that the PDVA mandates that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the parties, including previous threats, harassment, physical abuse, and in consideration of whether immediate danger to the person or property is present.

This court has also considered cases in which a defendant's due process rights were violated when the trial judge entered an FRO based largely on incidents alleged in an earlier complaint, none of which was raised in the complaint before the court. J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998). It has been further held that "[a]t a minimum, due process requires that a party in a judicial hearing receive notice defining the issues and an adequate opportunity to prepare and respond . . .

[T]here can be no adequate preparation where the notice does not reasonably apprise the party of the charges, or where the issues litigated at the hearing differ substantially from those outlined in the notice." H.E.S. v. J.C.S., 175 N.J. 309, 321-22 (2003).

It is defendant's position that he was surprised by plaintiff's additional allegations and was not offered time or ample opportunity to defend himself against her accusations. This argument is ill-conceived. Defendant and plaintiff had been involved in numerous rounds of litigation since their separation. Defendant was not unfamiliar with the legal process, being savvy enough even to prepare, and then mail for filing, a custody modification motion on the very day the present domestic violence complaint was filed.

More importantly, plaintiff previously mentioned many of the events she testified to at the FRO hearing in her September 19, 2008, complaint. In addition to the photographing incident at 1:45 a.m., plaintiff highlighted 1) the time defendant inappropriately approached her new boyfriend, 2) the previous domestic violence proceedings with defendant, 3) the morning defendant climbed into her window and tried to force himself on her, and 4) the other times defendant was able to gain access to the residence in order to allegedly harass her. It was likely hardly surprising to defendant that plaintiff would raise these issues regarding the parties' prior contentious history at the FRO hearing.

Unlike J.F., the trial court did not base its decision to issue an FRO solely on other accusations not listed in the complaint, ignoring the sole reason the restraining order was sought in the first place. Judge Rauh looked at the totality of the circumstances and determined that the innocuously-looking photography of plaintiff's residence at 1:45 a.m. was in fact harassment, especially so in light of the other incidents between the parties, of which there was fair notice to defendant.

Defendant further argues that the trial court failed to establish any actionable offense, specifically domestic violence and harassment under N.J.S.A. 2C:33-4(c). Defendant alleges that plaintiff is merely using the vehicle of a PDVA proceeding in order to "secure rulings on critical issues such as support, exclusion from martial residence and property disposition, particularly when aware that a matrimonial action is pending or about to begin." Defendant believes that because he was in the process of submitting a motion for increased visitation, plaintiff beat him to the punch by seeking an FRO in order to prevent him from being successful on his concurrent visitation motion.

Judge Rauh properly rejected defendant's theory. The court went on to consider all of the evidence before it, correctly finding that based on the past confrontations between defendant and plaintiff, defendant had an intent to harass plaintiff when he appeared at her residence at 1:45 a.m. taking flash-enhanced photographs. The animosity between defendant and plaintiff was clear; this incident was merely one of many where defendant purposely annoyed and harassed plaintiff.

Our courts have consistently stated:

A finding of a purpose to harass may be inferred from the evidence presented. State v. McDougald, 120 N.J. 523, 566-67 (1990); State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995). Common sense and experience may inform that determination.

State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478, (1978). [State v. Hoffman, 149 N.J. 564, 577 (1997).]

The trial court was correct in its assessment of defendant's intent to "seriously alarm or annoy" plaintiff. While defendant's intent to collect evidence for a custody proceeding may have been a valid one, the method in which he collected the evidence and his prior course of conduct in communicating with and confronting plaintiff points to a more malevolent state of mind.

Defendant claims that his due process rights during the hearing were violated because he was deprived of the chance to present his case in full and was denied the opportunity to defend himself properly. Defendant specifically takes issue with the fact that he was not permitted to ask any questions of the boyfriend about the movement of defendant's vehicle in an attempt to impeach plaintiff's testimony.

Defendant argues, "[w]hether I was parked or just driving by the house, should be a critical issue in determining my specific intent and the harassing extent of the act in question." By truncating the presentation of this theory, he further asserts, "the court committed a fundamental and egregious error by denying me my opportunity to present my own case and thus denied me of my right to due process, essentially admitting that 'its mind was made up.'" From our review of the record, defendant was allowed an appropriate opportunity to put forward his case and to defend himself, even after the trial court determined that the parked-or-moving-vehicle issue did not matter to the admeasurement of harassment. The trial judge did not permit defendant to belabor that irrelevant issue, and we are convinced that this determination was well within the judge's range of principled discretion.

Defendant was also permitted to question plaintiff about the circumstances surrounding the photography event, specifically about whether or not she felt harassed or threatened that night. He was also permitted to portray his theory of the case: plaintiff was using the FRO proceedings as a way to wound his application for increased visitation. Judge Rauh ultimately concluded that it was a stretch to connect the filing of the visitation motion with the issuance of a TRO on the same day, and dismissed defendant's theory of the case as implausible and unfounded.

Defendant's next due process argument is an attempt to persuade this court that the trial judge did not give a complete and clear basis for his finding that defendant had harassed plaintiff. However, when such an error in fact-finding of a trial judge is alleged, the scope of appellate review is limited. This court will only decide whether the findings of the trial judge could reasonably have been reached on sufficient or substantial credible evidence that was presented on the record. Due regard is given to the trial court's ability to judge the credibility of the parties and the evidence presented. In re Taylor, 158 N.J. 644, 656 (1999); State v. Locurto, 157 N.J. 463, 470-71 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

Alternatively, "[w]hen the reviewing court is satisfied that the findings and result are supported by sufficient credible evidence present in the record, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)).

It should also be noted that such decisions made by a trial court are based on the information presented to it are based on judicial and human experience, and should only be disturbed if they are clearly so "wide of the mark." Ibid. (citing Johnson, supra, 42 N.J. at 161). Our courts have consistently held that "[b]ecause a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).

In this case, Judge Rauh considered the wealth of information presented to him by the parties regarding the current allegation of harassment, in addition to the prior relationship among plaintiff, defendant, and plaintiff's boyfriend. Judge Rauh was clearly in the best position to understand the issues, to ascertain whether the parties' presentations were credible, and to determine whether defendant actually purposely harassed plaintiff in violation of N.J.S.A. 2C:33-4(c). Locurto, supra, 157 N.J. at 471.

Judge Rauh explained why he was issuing an FRO on the grounds of harassment. He was not required to write a treatise to explicate his rationale; we find that he sufficiently set forth reasons that are fully capable of a thorough appellate review.

Defendant's final argument regarding due process revolves around the burden of proof that is required for domestic violence cases under the PDVA. Defendant claims that the FRO should be vacated because the judge employed the preponderanceof-the-evidence standard of proof, rather than the clear-and-convincing standard. We recently concluded that the Legislature was not constitutionally required to impose a clear-and-convincing standard for the adjudication of domestic violence matters. Crespo v. Crespo, 408 N.J. Super. 25, 37-40 (App. Div.), leave to appeal granted, N.J. (2009). Thus, we find no merit in the argument contained in defendant's brief.

This brings us to defendant's final point, a concern about contradictory results between courts. Defendant points to his recent municipal court acquittal of the predicate act of harassment three months after the entry of the FRO as a basis to undo the FRO. The acquittal of a petty disorderly persons offense is simply the outcome of a process that required the much higher standard of proof: beyond a reasonable doubt. See State v. Grenci, 197 N.J. 604, 622 (2009) (the State is compelled by the state and federal constitutions to bear the burden of proving the defendant guilty beyond a reasonable doubt); State v. J.T., 294 N.J. Super. 540, 545-46 (App. Div. 1996) (reasonable doubt standard applies for all crimes, disorderly persons offenses, and petty disorderly persons offenses). Given the different burdens of proof between a domestic violence FRO proceeding and a petty disorderly persons trial, there is nothing inconsistent about defendant's experience that would warrant our intervention or the undoing of the FRO.

To the extent that we have not addressed any issue or contention raised by defendant, we do not find it to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20100111

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