April 16, 2010
T.G., *FN1 PLAINTIFF-RESPONDENT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 24, 2010
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 found significant that the wife had not reported these particular acts to the police, despite her prior history reflecting that "she would report in essence everything to the [p]olice."
The parties thereafter entered into a Property Settlement Agreement ("PSA") in their divorce action in November 2008. Among other things, the parties agreed in the PSA to share joint legal and residential custody of all three children, despite the wife's earlier claim that the husband had sexually abused the middle child.
On December 3, 2008, a final judgment of divorce was entered by the court, incorporating the terms of the PSA. Both parties were represented at that time by counsel. The judgment was signed by the same judge who had presided over the FRO trial in October 2008.
Not long after the divorce was finalized, the ex-wife applied for a new TRO on January 20, 2009, again claiming harassment. She alleged that, on that particular morning, the ex-husband degraded her when he came to her residence to drop off one of the children. According to the ex-wife, he referred to her as a "whore" and said that she "sleeps with many men," called her other names, and told her that she "smells like seamen [sic]." The TRO application also claimed that on the immediately preceding day, January 19, 2009, the ex-husband allegedly offered her five dollars for oral sex and had asked her if she had performed oral sex on another man. She further claimed that, a week earlier, the ex-husband had come to her back door and made sexual gestures; and that he was "constantly making unwanted sexual gestures and degrading comments" about her, at times in front of their children. Additionally, she alleged that, about three weeks earlier, the ex-husband threatened her by saying: "Are you still alive? You will see the surprise."
Based on these allegations, a TRO was issued that day. It initially included restrictions on the ex-husband's parenting time.
The next day, January 21, 2009, the ex-husband applied for an ex parte order restoring his parenting time, which another Family Part judge ("the second judge") granted in part. The TRO was accordingly amended to delete the two older children, "who live with [the ex-husband]," from the contact restrictions.
On the following day, January 22, 2009, a third Family Part judge ("the third judge") heard the parties, who at this point were both pro se. The judge confirmed from the ex-wife that she had agreed to a parenting plan with the ex-husband under the December 2008 divorce judgment, despite the earlier alleged incidents of domestic violence. Consequently, the third judge restored the ex-husband's parenting time with the youngest child as well, consistent with the arrangements in the divorce judgment.
The FRO hearing on the ex-wife's January 2009 allegations was scheduled before yet another Family Part judge ("the fourth judge") on February 18, 2009. At that proceeding, the ex-wife was represented by counsel (who was apparently pro bono) and the ex-husband was pro se. At the outset, the ex-wife's counsel represented that her client intended to testify about a history of prior violent acts dating back to 2006. The ex-husband objected, pointing out to the court that the only alleged prior history noted on the TRO form was an incident of January 19, 2009. Consequently, the court permitted the ex-wife to amend her TRO to include additional prior acts, and the hearing was adjourned to afford the ex-husband additional time to prepare.
On February 18, 2009, the ex-wife filed an amended TRO application, inserting seven alleged acts of prior domestic violence. The prior incidents included several allegations that had been presented in the case tried by the first judge in October 2008, which had resulted in a denial of an FRO. These acts included the alleged incident of September 3, 2008, which the first judge had specifically found had not been proven. The amended TRO also incorporated some alleged acts of domestic violence from 2006 and 2007, and an incident from June 28, 2008, in which the ex-wife reported to the police that the ex-husband had allegedly followed her around. The only predicate acts in the amended TRO post-dating the court's October 2008 denial of an FRO included: the incidents of January 19 and 20, 2009--involving degrading comments and the ex-husband's demand of sex for money; another alleged vulgar comment by the ex-husband on January 15, 2009; and an allegation that, on January 18, 2009, the ex-husband had called the ex-wife and accused her of prostitution.
The FRO hearing before the fourth judge resumed on February 23, 2009. The ex-husband moved to bar testimony about any incidents alleged to have occurred on four earlier dates--September 21, 2006; November 28, 2007; June 28, 2008, and September 3, 2008--arguing that those accusations already had been adjudicated in the ex-husband's favor before the first judge. The fourth judge rejected the ex-husband's collateral estoppel arguments, and instead permitted the ex-wife and her counsel to present evidence that concerned alleged incidents of domestic violence that had been dismissed or otherwise preceded the FRO hearing of October 6, 2008.
After hearing testimony from the represented ex-wife and the pro se ex-husband, the fourth judge granted her an FRO. In his oral opinion, the fourth judge stated that he found the ex-wife more credible than the ex-husband, and that she had established the elements of harassment by a preponderance of the evidence. The judge additionally found that the ex-wife had shown a credible basis to be fearful and the need for restraints.
Consequently, the fourth judge issued an FRO prohibiting the ex-husband from making further harassing communications to the ex-wife of stalking or threatening to harm her. However, the judge did permit non-harassing communications that related to parenting time or other issues concerning the well-being of the children.
Following some modest clerical corrections to the FRO agreed upon by the parties, the ex-wife moved for counsel fees, which the ex-husband opposed. On May 5, 2009, the fourth judge granted the ex-wife counsel fees in the reduced sum of $1,710.00.*fn2
On appeal, the ex-husband argues that: (1) his due process rights were violated at the February 2009 FRO hearing because he was not provided with advance notice of alleged prior violent behavior that was omitted from the ex-wife's amended TRO; (2) the fourth judge's factual findings were not adequately supported by the evidence; (3) the fourth judge's partial reliance on prior alleged acts that were already litigated and found unproven at the October 2008 FRO hearing contravened principles of collateral estoppel; (4) the court erred in finding that the ex-husband's conduct necessitated the entry of restraints; and (5) the award of counsel fees must be reversed if the underlying FRO is reversed or vacated. The ex-wife has not filed a brief on appeal in opposition to the ex-husband's contentions.
We begin our analysis with a recognition of the important public policies served by the Act. See N.J.S.A. 2C:25-18 (detailing the legislative findings supporting the Act, including a declaration that "domestic violence is a serous crime against society"); see also Crespo v. Crespo, 408 N.J. Super. 25, 38 (App. Div. 2009), aff'd ____ N.J. ____ (2010) (noting the "strong societal interest in protecting persons victimized by domestic violence" and constitutionally sustaining the Act's preponderance-of-evidence proof standard). That being said, we are equally mindful that our courts have also recognized the need for trial courts hearing domestic violence cases to adhere to procedural norms of due process and fundamental fairness. See, e.g., H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003); Franklin v. Sloskey, 385 N.J. Super. 534, 540 (App. Div. 2006).
In H.E.S., supra, the Supreme Court instructed that it is a "'fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.'" 175 N.J. at 325 (quoting J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998)). Consequently, an FRO judge should not rely upon a prior alleged course of violent conduct if it was not mentioned in the TRO application served upon a defendant, unless that defendant has been given fair notice of the complainant's desire to rely upon those past alleged incidents and an adequate opportunity to prepare a defense to those contentions. Id. at 321-22. For instance, the trial court may continue the restraints in the TRO and adjourn the FRO hearing briefly to give the defendant a chance to prepare to address the prior incidents and to arrange for appropriate counter-proofs. Id. at 324-25.
Here, the ex-husband argues that he was deprived of due process mainly because the ex-wife was permitted, at the February 2009 FRO hearing, to testify about the alleged 2006 incident in which he supposedly broke down a locked door, threw the ex-wife on a bed, choked her, and threatened to rape her, even though that very serious accusation was not contained in either the ex-wife's initial or amended TRO in 2009. Had he been given fair notice of that accusation, the ex-husband asserts, he could have attempted to muster competing proof, including potential testimony from the local police detective who had testified at the October 2008 TRO hearing, attesting that the 2006 forced-entry incident had not been substantiated by the police.
We agree with the ex-husband's due process contention, in light of the Supreme Court's guidance in H.E.S. Even though the pro se ex-husband did not specifically request an adjournment, he did move to bar the prior allegations on other grounds, and could have been procedurally disadvantaged once the fourth judge rejected his request to have the prior alleged conduct excluded altogether.
We further agree with the ex-husband's contention that the admission of proofs of the 2006 incident was not inconsequential, as the fourth judge in his analysis specifically referred to "inciden[ts] in 2006 that she testified to," as well as other conduct in 2007, "which caused her fear." The fourth judge also noted that the ex-wife "feared she was going to be raped[.]" There were no other predicate acts or prior episodes of domestic violence testified to by the ex-wife that were as violent or as serious as this alleged 2006 incident.
In rendering his oral opinion, the fourth judge stated that he had considered "the totality of the circumstances" including "the previous history of domestic violence[,]" in finding a specific intent by the ex-husband to harass his former spouse. That approach was consistent with the fourth judge's evidentiary ruling declining to exclude the pre-October 2008 conduct, in which he stated that his ultimate ruling on the merits would be "based on listening to the testimony of all of the acts, prior acts, alleged prior acts." We are not confident that the court's admission and consideration of the 2006 proofs was merely harmless, and that they did not appreciably influence the fourth judge's overall analysis on the merits. See H.E.S., supra, 175 N.J. 325 (similarly rejecting a claim of harmless error). The matter consequently must be reheard.
We are unpersuaded, however, by the ex-husband's argument that he is entitled to a final judgment dismissing the FRO, because of principles of collateral estoppel, with respect to the disposition of the earlier October 2008 FRO case. As we held in T.M. v. J.C., 348 N.J. Super. 101 (App. Div.), certif. denied, 175 N.J. 78 (2002), "an individual act previously rejected as insufficient to constitute domestic violence may take on greater significance because the [prior] act is later repeated in a manner that may amount to a course of conduct prohibited by [the Act]." Id. at 106. "In such [an] instance, the prior act may be considered along with the new conduct in determining whether a plaintiff has established domestic violence based on a subsequent complaint." Ibid. Such a possibility exists here with respect to the allegations that were insufficiently proven at the October 2008 FRO hearing.
We do agree with the ex-husband in one respect, in that it would have been preferable for the fourth judge to have reviewed the transcript of the first judge's findings of fact before deciding whether or not to place any reliance on the earlier allegations, or how much reliance would be appropriate. Id. at 106-07 (highlighting the importance of comparing the prior transcript of findings to the present allegations of domestic violence). Consequently, at a rehearing, the trial court shall be provided with and shall consider, in proper context, the October 2008 hearing and the findings of the first judge in assessing what, if any, significance to ascribe to those earlier alleged events. For example, the fact that the parties were still litigating a divorce action as of October 2008, but are currently now divorced (albeit with shared parental duties) may bear on whether the ex-wife's present motivations and interests coincide with those that were extant in October 2008, factors which seem to have affected the first judge's factual analysis. See also Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995) (observing that "domestic contretemps" during an argument between separated spouses, in which "tempers flared and defendant threatened drastic measures" did not amount to domestic violence actionable under the statute).
For these reasons, the FRO issued in February 2009 must be vacated, without prejudice. A new hearing on the FRO relating to the January 2009 allegations should be scheduled, assuming that the ex-wife confirms to the trial court, notwithstanding her non-participation in this appeal, that she still wants final restraints against her former spouse. Because the fourth judge has already made extensive credibility findings in this case, we direct that the new hearing shall be conducted by a different FRO judge, preferably one that has not previously heard contested matters involving these same parties. We do so out of an abundance of caution and not because we have concluded that the fourth judge would be unable to be fair and impartial at a new hearing. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617 (1986).
Pending the rehearing, the temporary restraints that were previously in force under the amended TRO shall be reinstituted, unless an application to dissolve or modify them is made to the trial court by the ex-husband in advance of the new hearing. We continue such restraints provisionally, because the record before us gives us no sense of the parties' current circumstances, nor of the immediate necessity (or lack thereof) for interim protection.
In light of our disposition remanding the case, we need not decide the remaining issues raised on appeal, including whether or not, under the totality of circumstances, the ex-husband's conduct in January 2009 does or does not amount to conduct in violation of the Act and thus is sufficient to justify final restraints. The award of counsel fees to the ex-wife, and any additional counsel fees incurred on the remand, shall abide the outcome of the rehearing. If counsel fees are awarded on remand, the trial court should consider whether such fees are more appropriately made payable to the legal services agency that arranged for the ex-wife's representation, rather than to the pro bono attorney individually. See Ferrigno v. Ferrigno, 115 N.J. Super. 283, 285 (Ch. Div. 1971). The trial court is free to re-examine the reasonableness of the hourly rate quoted by counsel and the amount of time incurred.
Vacated and remanded. We do not retain jurisdiction.