May 14, 2010
DONALD W. JONES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-1150-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2010
Before Judges Stern and Graves.
Defendant Donald Jones appeals from a final domestic violence restraining order (FRO) entered on October 27, 2008, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Because the trial court relied on telephone voice messages that were not made a part of the record, we remand to the Family Part for further proceedings.
In this case, there is no dispute that the parties had a dating relationship and that defendant purchased tickets for a Janet Jackson concert that was scheduled to take place on Friday, October 17, 2008. However, sometime in August, after the parties had discontinued their relationship, plaintiff canceled the concert tickets and obtained a full refund of defendant's money. Plaintiff never informed defendant that the tickets had been canceled. When plaintiff was asked about the concert tickets during cross-examination, he testified as follows:
They were supposed to be a birthday gift, because my birthday was the day before the concert.
Q: Okay. And who purchased the tickets?
A: They were purchased with my credit card, but with his money.
Q: Okay. And earlier you stated you canceled the tickets in August?
Q: When was the concert supposed to be?
A: In October.
Q: Okay.... [A]t any given point, did you communicate to the defendant that you had canceled the tickets?
A: No, because at the time that --
Q: Just -- no?
Q: Okay. And did you still know that he was going to go to the concert?
Q: Do you believe he had a right to know that you had canceled the concert tickets?
A: Yes. He did. But at the time --
A: -- we weren't speaking, we were split up at that time.
Q: Okay. And what did you do with the money that you got back for the tickets?
A: Spent it.
Q: Okay. And based on the text messages that were read into court and the ones that you showed in the [c]court in the voice messages -- wasn't he asking you for his money back?
A: No, he didn't ask for it back he just asked me where was it (phonetic).
Q: Okay. But it was regarding the money, that was the purpose of the call.
A: Uh hum. Yes.
Defendant testified he learned the concert tickets had been canceled when he arrived at the concert, and he admitted he was mad when he telephoned plaintiff:
Q: So at the moment when you found out that the tickets were canceled, how would you describe yourself?...
A: Well, at first we were surprised and we were shocked because we had an out of town guest going with us. And I was trying... to figure out what was the next move. So I took a deep breath, I stepped back away from the box office and I went outside to gather my thoughts.
I got on the phone, like I said, and I called him. And -- he wouldn't answer. So I didn't leave a message the first time. Then I called the second time. I didn't leave a message.
So I text him and he texted me back and said he was at work. So I text him back and asked him... what the fuck is up with the tickets, why didn't you tell me the ticket[s] [were] canceled, where the fuck is my money.
Q: At any time did you intend to -- did you intend to harm him or to hurt him?
A: No. Not at all. We were, like, the best of buddies, we were friends. And I thought we were cool, I mean, I had no animosity towards him whatsoever. But I was just -- the fact that if somebody is going to do something -- that underhand[ed]... I was just -- I was mad.
Plaintiff testified he received about twenty text messages from defendant, and some of the messages were threatening.
Seven of the messages were read during the trial. However, none of the messages presented at trial were threatening. The court also heard two recorded telephone voice messages from defendant, but the telephone messages that the court heard and considered in reaching its decision to grant a FRO are not contained in the record, and we have not been provided with a transcript of the telephone messages. See Rule 1:2-2 (requiring all proceedings in court to be recorded verbatim, including "the content of an audio or video tape played during the proceedings" unless a transcript of the audio or video tape is marked into evidence).
After "considering the totality of the circumstances," the court found that defendant threatened "to commit a crime of violence with the purpose to terrorize the plaintiff," and that defendant "intended to commit some act of violence against the plaintiff." In addition, based on the text messages, the court found defendant committed an act of harassment. But we are unable to determine to what extent, if at all, the court may have taken the telephone messages into account in reaching that determination.
We recognize, of course, that a trial court's findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). In this case, however, the recorded telephone messages, which the court relied upon in reaching its decision, are not part of the record before us and we are unable to determine whether there is sufficient credible evidence to support the trial court's decision. Under these circumstances, we conclude the matter must be remanded to the Family Part for further proceedings.
The FRO dated October 27, 2008, is vacated. However, the temporary restraining order remains in place pending further order of the Family Part.
Reversed and remanded. Jurisdiction is not retained.