On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1525-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Newman.
Defendant F.G. (the "husband" or the "ex-husband") appeals a final restraining order ("FRO") entered against him by the Family Part in favor of his former spouse, plaintiff T.G. (the "wife" or the "ex-wife"), and the trial court's related order awarding the ex-wife counsel fees, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 ("the Act"). Because of certain flaws in the prior proceedings we vacate the FRO, provisionally reinstate a temporary restraining order ("TRO"), and remand for a new FRO hearing.
The parties have three minor children. They have a history of a stormy relationship, particularly after the husband discovered in 2006 that his wife had an extramarital affair. After the affair was discovered, the parties attempted to reconcile, and the wife gave birth to the couple's third child in January 2008. The marriage, however, continued to deteriorate, and the husband filed a complaint for divorce in June 2008.
The wife did not file a timely answer to the divorce complaint, and a default hearing in that case was scheduled for October 14, 2008. In the meantime, the wife filed a domestic violence complaint against the husband, alleging that he committed various acts of harassment and inappropriate contact on September 3, 2008 and on September 28, 2008. Specifically, the wife alleged that on September 3, 2008, after the wife declined his sexual advances, the husband exposed himself to her and demanded oral sex from her "if she wanted any money." In addition, the wife alleged that the husband was often verbally abusive to her and that he had been recording her phone calls for the previous two years.
The wife's application for a TRO alluded to "several police reports filed between [September 21, 2006 and September 3, 2008] for on-going harassment." Her application further alleged that, approximately a year and a half earlier, the husband had thrown the wife onto a bed and "put his hands around her neck and threatened to rape her" and that he "kicked the door in and broke it." She also alleged that the husband follows her around and checks her phone calls, and that he threatened divorce if she would not have sex with him.
A TRO was issued on September 29, 2008 based on these allegations. An FRO trial was scheduled before a Family Part judge ("the first judge") on October 6, 2008.
The parties were both represented by counsel at the October 6, 2008 FRO hearing. They both testified and were cross-examined, as was a detective from the Hasbrouck Heights Police Department. Following that hearing, the first judge denied the wife's FRO application, and dissolved the TRO.
Among other things, the first judge noted that the wife's credibility was "compromised" by the fact that she had not reported the husband's alleged acts of lewdness and other wrongful conduct to the police in September 2008, even though she had otherwise filed reports with the police "on at least ten occasions" in the preceding two years. The first judge further noted that the police detective observed no evidence of violence in the home, nor was there any evidence of a broken door. The police detective did acknowledge that in May 2007 the wife had reported prior incidents of choking and sexual assault, but the judge accepted the detective's account that those were "separate and distinct incidents," and further noted that the husband was never arrested on those occasions.
By contrast, the first judge noted that the wife herself had previously been arrested for driving her car into the car of her paramour's spouse in a Bergen County park, and that she had been ordered, following that incident, to attend anger management classes. As another factor impeaching the wife's credibility, the court noted that she had filed a report with the Division of Youth and Family Services ("DYFS") against the husband the day after the alleged September 3, 2008 incident, claiming that the husband had sexual contact with the parties' then ten-year-old daughter. The judge noted, however, that those allegations had not been substantiated, either in the records of DYFS or in the Children in Court docket of the Family Part.
In sum, the first judge concluded in her October 6, 2008 FRO decision that the wife had not proven the statutory elements of domestic violence. The first judge noted the parties' "tumultuous marital relationship[,]" and that, in this context--involving divorcing parties--the husband's rude comments did not qualify as harassment under the Act. As to the wife's accusations of improper touching, the first judge specifically found that, even if such touching occurred, it did not continue after the wife left the room. The first judge also was not persuaded, by a preponderance of the evidence, that the husband had exposed himself to the wife and had asked for oral gratification in exchange for money. Finally, the first judge ...