February 26, 2010
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-1482-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Lihotz and Ashrafi.
Defendant L.M. appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered on January 14, 2009, after trial. We affirm.
Plaintiff C.F. filed a domestic violence complaint on December 10, 2008, in which she alleged defendant had called her cell phone and made a terroristic threat, saying "I'm going to cut your throat from ear to ear." The complaint stated that the threat occurred at 2:50 [p.m.] on December 10. With respect to history of domestic violence, the complaint alleged that plaintiff attempted to get prior restraining orders that had been denied. It said further, "The victim has had problems with the actor for several years."
Trial was held before Judge Velazquez in the Family Part on January 14, 2009. Defendant was represented by counsel; plaintiff was pro se. In addition to the testimony of the parties, the court heard from three other witnesses. Plaintiff presented the testimony of her eighteen-year-old daughter J.F. to corroborate her allegations of violence and the phone call on December 10. Defendant presented the testimony of a co-worker to account for his activities at the alleged time of the phone call and the testimony of his lawyer's secretary to establish a motive for plaintiff to fabricate her accusation.
The testimony at trial established that plaintiff and defendant lived together from 1996 until July 2008. They had a son together, age seven at the time of trial, and were also jointly raising plaintiff's daughter, J.F. Defendant treated J.F. as a loving stepfather in her younger years. Both plaintiff and defendant were drug abusers who were working on recovery and abstention from illegal drugs. Defendant was employed as a social worker aiding drug addicts through Mount Carmel Guild, which is associated with Catholic Charities.
According to plaintiff, about four years before the time of trial, defendant began mistreating her, initially by engaging in affairs with other women and depriving her and the children of money for food and other necessities. She admitted that she had also been involved in an affair about eight years earlier, and claimed that defendant said he wanted "payback." In addition to her many allegations of physical violence by defendant, plaintiff testified that he also harassed her by forcing her to sit and listen to his descriptions of sexual activity with his girlfriends.
Plaintiff testified that the relationship deteriorated over time and defendant began pushing, slapping, and "mushing" her face, which conduct was repeated frequently for several years. The violence escalated in the early summer of 2007 when defendant allegedly grabbed her by the throat and threatened to kill her as she was leaving the house at nighttime with their son. Over the summer of 2007, the violence increased to pulling her hair and other hitting and choking incidents. On one occasion in 2007, defendant became angry at her for lying down and not cooking dinner when she was sick with the flu. As she got up and went to the kitchen, he shoved her into the stove and then took all the frozen meat out of the freezer and threw it at her and around the kitchen.
In December 2007, defendant allegedly choked plaintiff, and she obtained her first temporary restraining order. Before a hearing was held, plaintiff voluntarily dismissed her domestic violence complaint because defendant had called her and said her accusations were jeopardizing his career as a social worker.
She obtained a second temporary restraining order in mid-July 2008. She alleged that on July 10, defendant kicked her awake in bed, pushed his knee into her chest, and choked her. He allegedly said "I'd love to kill you." The next day, July 11, he attacked her in the street as she was returning from a grocery store, accusing her of leaving their son alone to play in the street. She testified that he head-butted her.
Plaintiff's daughter, J.F., also testified at the trial of the July 2008 complaint before Judge Charles. At that time, Judge Charles decided the case in favor of defendant, denying plaintiff a final restraining order. No transcript from that proceeding was provided to Judge Velazquez, and none has been included in the record of the appeal before us.
Plaintiff moved out of the home in late July 2008, taking her two children with her. On December 5, 2008, plaintiff and J.F. reported to the Division of Youth and Family Services (DYFS) that defendant had sexually abused J.F. about a year earlier by touching her breast. According to J.F.'s testimony, defendant threatened her and pushed her down stairs when she said she would tell her mother about the incident. J.F. gave a statement about the incident, apparently to the Hudson County Prosecutor's Office. At trial, no evidence was presented regarding when defendant learned about J.F.'s accusations.
Defense counsel's secretary testified that on December 10, 2008, on instructions from a former attorney for plaintiff, she called plaintiff to inform her about defendant's intent to file an application the next day for an order to show cause to gain custody of the parties' son. She called and gave that information to plaintiff in the early afternoon of December 10.
Plaintiff testified that the call did not occur as the secretary testified and that she first learned about the order to show cause on December 11, the day after she filed the current domestic violence complaint.
Plaintiff testified further that on the afternoon of December 10, she received a call from her son's school that he had an "anxiety attack" at school and needed to be seen by a doctor. She and J.F. went to the emergency room of Jersey City Medical Center to check on her son. Outside the emergency room, sometime between 2:30 p.m. and 4:10 p.m., according to plaintiff's testimony, her cell phone rang three times but the caller identification number was blocked. She did not answer the first two times, but answered the ring the third time thinking it might be from her son's school. The caller was defendant, and he immediately began to curse plaintiff and J.F. and call them liars, also saying that they were jeopardizing his career. He threatened to "cut her up" and "slice her throat." She hung up the phone.
Defendant's co-worker testified that he was with defendant most of the work day on December 10, 2008, and, in particular, at a team meeting of social workers and supervisors between 2:00 and 4:00 p.m. He did not see defendant leave the meeting or make a phone call. In questioning by the judge, the co-worker testified twice that the meeting ended about 3:30.
Defendant testified and denied making the phone call to plaintiff on December 10. He also denied that he had ever physically assaulted plaintiff. The court then asked defendant:
Q: You have never slapped her, mushed her, pushed her, punched her or kicked her?
A: No, Your Honor, but I did want to beat the sh** out of her, that's what I wanted to do.
In his decision, Judge Velazquez made detailed credibility findings. He found both the co-worker and defense counsel's secretary to be credible witnesses, but their testimony not decisive. With respect to the parties and eighteen-year-old J.F., the judge explained his credibility findings as follows:
We look at the conflicts in the testimony, the motives that people may have to lie, the interests that people may have in the outcome of a particular case. We look at attitude and posturing and the way that people testify and through our training and sometimes through just the human ability alone we're called upon to determine issues of credibility.
So that's where I am, you know. I have on the one hand the plaintiff who has alleged a continuous and persistent course of conduct by this defendant, various previous complaints that have been filed, some dismissed by consent, others dismissed after a court proceeding.
This plaintiff, however one thing that strikes me is that she hasn't wavered in the description of what has been occurring in her life. She candidly admits that she has been a victim and has been suffering with long term alcohol and drug addiction and has been treated for it.
It's hard for me to believe that Mr. [M] has never engaged in assaultive behavior against his wife. And the reason I say that is because, he candidly admitted that he wanted to cause her harm in an outburst during the course of his testimony. I think that indicates the propensity to engage, at least the thought of engaging in assaultive behavior.
But I think most compelling is the manner in which . . . this plaintiff has described a pattern of abuse that started about four years ago. . . .
There is no doubt in my mind that there is a previous history of domestic violence between these parties. That has been corroborated by the daughter, [J].
I have issues with both plaintiff and defendant with respect to my assessment of their credibility. I know that everything that's been said by them is not the truth. Some of it is embellishment, some of it is outright lie. I don't know why but I believe [J]. I believe [J]. And I know that she's the daughter of the plaintiff but I also know that at one time she had a compassionate and loving relationship with her stepfather and that she saw Mr. [M] as her own father for a long period of time.
So then the question is what - what would turn this young woman against that stepfather who she once loved and cared for?
[J] impressed me as being hurt and suffering from some issue with her stepfather and I don't think it's just about the problem with mom. She's described as well a history of abusive - abuse at the hands of Mr. [M]. She's described observing personally the physical and verbal abuse to her mother as well as to herself and . . . her brother.
But [J] is eighteen years old. She's now an adult. She's a mature young woman. I don't think that her mother would influence her to the extent that she would take the stand and outright lie and commit perjury simply to support her mother's position on these issues. I don't see anything in her background and her history in terms of the relationship with her stepfather that would support that kind of credibility assessment.
So I do find that there was domestic violence in the house and that it was occurring on a more than acceptable basis.
If that can be acceptable obviously but this is more than just arguments between a married couple. This is more than just complaints, incidental pushing and shoving.
This is domestic violence. This is abuse by a husband against a wife and there very well may be abuse the other way around as well.
The court then addressed the basic issue in the case, whether defendant had made terroristic threats in a phone call to plaintiff on December 10. The court reached the following conclusions:
Now the question becomes did he make this phone call and does this phone call rise to the level of domestic violence? In order to find domestic violence this court must find that he engaged in one of these predicate acts of crimes. It is charged in the complaint that he engaged in terroristic threats. Again Cesare versus Cesare is the controlling case, 154 New Jersey 394.
In that case the court set the standard for the court and the court said proof of terroristic threats must be measured by an objective standard. The requirements are whether the defendant in fact threatened the plaintiff, whether the defendant intended to so threaten the plaintiff and whether a reasonable person would have believed the threat and again the court must consider the past history of domestic violence and abuse.
The threat must be of a kind that would reasonably convey a fear of death to an ordinary person. . . .
I find therefore that under the credibility assessments that I've made from the testimony of this plaintiff to be more credible. I find [J]'s testimony corroborating that her mother's testimony to make it more reasonable to assume that the phone call was in fact made, that the threat was made and that there was intent to threaten this plaintiff because of the past history of domestic violence, because of the allegations of physical assault . . . .
I think that emotion and the emotional impact of this situation is clear both in the manner in which these two individuals testified and their demeanor here in court.
So I do find that the plaintiff has met her burden of proving domestic violence and that this defendant engaged in terroristic threats and I find that under the circumstances she believed these threats to be real. She believes that he is a continuing threat to her to cause her harm and to cause her child harm.
On appeal, defendant raises the following arguments:
THE TRIAL JUDGE'S DIRECT EXAMINATION OF PLAINTIFF AND PLAINTIFF'S WITNESSES AND CROSS-EXAMINATION OF DEFENDANT AND DEFENDANT'S WITNESSES CROSSED THE LINE THAT SEPARATES PERMISSIBLE JUDICIAL INTERVENTION IN A TRIAL FROM IMPROPER ADVOCACY
THE TRIAL JUDGE IMPROPERLY CONSIDERED EVIDENCE OF PRIOR ALLEGED ACTS IN REACHING HIS DECISION
THE JUDGE'S FACTUAL FINDINGS AND LEGAL CONCLUSIONS WERE NOT SUPPORTED BY EVIDENCE IN THE RECORD
DEFENDANT'S ATTORNEY WHEN PRESENTED WITH THE TESTIMONY OF A WITNESS WHICH COULD BE IMPEACHED BY REFERENCE TO TESTIMONY IN A PRIOR PROCEEDING FAILED TO ASK FOR A CONTINUANCE IN ORDER TO OBTAIN A TRANSCRIPT OF THAT PRIOR PROCEEDING
We find no merit in any of these arguments.
Defendant contends first that the trial judge stepped over the line of acceptable participation and questioning of witnesses by asking leading questions of J.F. and "cross-examining" defense witnesses. Having reviewed the entire transcript of the one-day trial, we conclude that Judge Velazquez did not abuse his discretion in examining witnesses.
We have previously recognized that trial judges may intervene in questioning witnesses, especially in cases involving pro se litigants. See Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006). In State v. Medina, 349 N.J. Super. 108 (App. Div.), certif. denied, 174 N.J. 193 (2002), we said, "Our courts have long rejected the 'arbitrary and artificial methods of the pure adversary system of litigation which regards the lawyers as players and the judge as a mere umpire whose only duty is to determine whether infractions of the rules of the game have been committed.'" Id. at 130 (quoting State v. Riley, 28 N.J. 188, 200 (1958), cert. denied, 359 U.S. 313, 79 S.Ct. 891, 3 L.Ed. 2d 832 (1959)). We found "high value" in "the discretionary power of a judge to participate in the development of proof" because a fair trial is the judge's responsibility. Id. at 131; see State v. Guido, 40 N.J. 191, 207 (1963); see also N.J.R.E. 611(a) (the judge "shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to . . . make the interrogation and presentation effective for the ascertainment of the truth").
Recently, the Supreme Court addressed the issue and admonished trial judges not to allow their questioning of witnesses to cross the line between inquiry and advocacy. State v. Taffaro, 195 N.J. 442, 451 (2008). Especially in cases tried before juries, judges must show restraint in questioning witnesses so that they do not suggest a belief or disbelief in the testimony. Ibid. The Court also observed, however, that concerns about influencing juries by intrusive questioning "are less acute in the context of bench trials, where judges serve as fact finders and have more latitude." Ibid.
Here, defendant quotes short excerpts from the trial record to support his argument that Judge Velazquez's questioning crossed the line into advocacy. First, defendant contends that the judge asked a leading question of J.F. regarding the July 11, 2008 incident alleged by C.F. But at the time of that question, J.F. had already testified through non-leading questions that she had seen defendant in many acts of domestic violence against her mother. Furthermore, the July incidents were not the basis of the final restraining order granted to plaintiff.
Defendant also quotes the transcript accurately with respect to the judge's comment referring to the co-worker witness as defendant's friend. Not too much can be made of that comment, however, because it was more a manner of speaking than prejudgment about presumed bias of a friend. In fact, the judge found the co-worker's testimony to be credible, but that testimony did not cover the entire time period during which the phone call of December 10 could have been made.
The judge's comment that both parties had "hate in [their] hearts" also did not reveal bias. During plaintiff's highly emotional testimony about all the wrongs that defendant had done to her, the judge suggested to plaintiff by that comment that she also may have displayed animus toward defendant through some of her behavior and testimony at the trial.
Finally, a comment by the judge that he was doing a good job for plaintiff in questioning defendant was unfortunate because it was subject to the misinterpretation that defendant attributes to it on appeal. In the context of the events that were occurring, the comment was an attempt to control plaintiff's interruptions. It did not mean that the judge took sides in the matter.
In context of the entire trial, the judge's questioning was fair and did not indicate an inclination in favor of plaintiff. In fact, the judge repeatedly chastised plaintiff for failing to answer questions directly and warned her that her credibility was damaged by jumping from one incident to another without clarity and structure. In a case where plaintiff was pro se, the judge had a duty to control the presentation of evidence by taking an active role in questioning witnesses.
Next, defendant contends that the trial judge improperly considered evidence of prior alleged acts of violence in reaching his decision. In a domestic violence case, the court is required to take into consideration the prior history of domestic violence. N.J.S.A. 2C:25-29a(1); Cesare v. Cesare, 154 N.J. 394, 401-02 (1998); H.E.S. v. J.C.S., 175 N.J. 309, 319 (2003). Early in the trial, Judge Velazquez proceeded under a misconception that the July 10-11, 2008 incidents were in dispute as the predicate acts of domestic violence. After defense counsel courteously corrected him, the judge focused on the proper predicate act, the alleged terroristic phone call of December 10. To plaintiff, the judge said:
I know you've had problems in the past and I know you've had conflict. Please don't misunderstand that. But I need to get the facts out from this complaint in order to determine whether on this complaint you're entitled to a restraining order. I can't control what Judge Charles did or did not do, alright? The only complaint on this complaint is that he called you and threatened you.
Neither side presented a transcript of Judge Charles's decision in the prior proceeding. Consequently, neither Judge Velazquez could, nor can we, determine from the record what the basis was for denying plaintiff a final restraining order for the July allegations. Whether the July incidents could or could not provide admissible evidence for Judge Velazquez to consider cannot be determined from the record presented by defendant on this appeal. Compare J.F. v. B.K., 308 N.J. Super. 387, 392 (App. Div. 1998) (plaintiff could not relitigate allegations decided adversely to her in an earlier domestic violence trial), with T.M. v. J.C., 348 N.J. Super. 101, 106 (App. Div.) (if a final restraining order is denied after trial because allegations did not rise to level of domestic violence, the prior acts may be admissible and considered in a subsequent trial based on new allegations of domestic violence), cert. denied, 175 N.J. 78 (2002). In any event, Judge Velazquez's findings of past domestic violence did not include a specific finding that the July incidents had occurred as plaintiff and J.F. testified.
We need not discuss in detail defendant's contention that the judge's factual findings and conclusions were not supported by the evidence presented at trial. We have quoted at length Judge Velazquez's findings and conclusions. The decision depended upon credibility determinations that the judge made and explained. Once the court credited testimony that defendant called plaintiff and said I will cut or slice your throat, and that defendant had previously committed many acts of physical violence against plaintiff, the evidence clearly supported his conclusion that defendant made a terroristic threat.
In Cesare, supra, 154 N.J. at 402, the Supreme Court explained that the crime of terroristic threats under N.J.S.A. 2C:12-3b requires a showing of three essential elements: (1) that the defendant in fact threatened the plaintiff; (2) that the defendant's intent was to threaten the plaintiff; and (3) that a reasonable person, under an objective standard, would have believed the threat. See State v. Smith, 262 N.J. Super. 487, 515-16 (App. Div.), certif. denied, 134 N.J. 476 (1993). The court need not find that defendant actually intended to carry out the threat, or that the threat actually induced fear in the victim. See State v. Nolan, 205 N.J. Super. 1, 4 (App. Div. 1985). The testimony of plaintiff and her daughter, if believed, provided ample evidence to support the conclusion that defendant made terroristic threats in the December 10 phone call.
Acknowledging the deferential standard of review, defendant nevertheless challenges the judge's finding that J.F.'s testimony was credible. Defendant seizes on one comment by the judge, "I don't know why but I believe [J.F.]," as indicating absence of a rational basis to credit J.F.'s testimony. The judge's isolated comment does not accurately reflect the additional reasons that the judge gave for crediting J.F.'s testimony. As prominently established by Cesare, supra, 154 N.J. at 411, our "scope of appellate review of a trial court's fact-finding function is limited."
Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility. . . . Because 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. [Id. at 412 (quotation marks and citations omitted).]
We defer to the credibility findings of Judge Velazquez, who observed and heard the witnesses.
Finally, defendant argues that he did not have effective assistance of his attorney at the trial because defense counsel did not ask for an adjournment to obtain a transcript of J.F.'s prior testimony to impeach her claim that she witnessed the July domestic violence incidents. A complaint seeking a domestic violence restraining order is a civil, not a criminal, matter. Therefore, the Sixth Amendment right to effective assistance of counsel does not apply. Defendant's citations to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and State v. Castagna, 187 N.J. 293, 313 (2006), have no application to this case.
Even if we were inclined to consider defendant's contention in terms of grounds for setting aside the trial court's judgment under Rule 4:50-1, we do not have an adequate record from the trial court, see Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992), and defendant has not obtained a copy of the potentially helpful transcript to demonstrate how it would have made a difference.
We find no basis to reverse the trial court's judgment granting a final restraining order to plaintiff.
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