On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-070-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Stern and Graves.
Defendant G.G. appeals from a domestic violence final restraining order (FRO) dated July 23, 2008. In a letter submitted pursuant to Rule 2:5-1(b), the trial court explained that the FRO was warranted because "[d]efendant committed the act of harassment and is likely to harass the [p]laintiff in the future." Although the standard of review of a trial court's factfinding is one of deference, Cesare v. Cesare, 154 N.J. 394, 413 (1998), we are convinced that defendant has raised valid issues regarding the fairness of the proceedings and the sufficiency of the evidence to support the court's findings. We therefore reverse and remand for a new trial.
The parties have a child who is almost three years old. Plaintiff T.J. alleged in her domestic violence complaint that defendant made a terroristic threat and committed an act of harassment while plaintiff and her mother were waiting for a visitation hearing outside of a courtroom in Essex County on July 2, 2008. According to plaintiff, defendant walked up to her and said, "this is your last time in court." Plaintiff testified she felt threatened by defendant's statement because of "the way he said it" and "the tone of his voice." On the other hand, defendant testified he wanted to let plaintiff know there was no need for them to be in court because he only wanted to see his son for three hours "from five to eight instead of six to nine." When he was asked to explain what happened, defendant testified as follows:
We came to court. I went to the bathroom. On my way back out I saw [T.J.] and her mother. I walked up to them and I said that, I'm tired of going through this. This is my last time. I don't want to go through this anymore. This is my last time doing this. And that was it.
Steve Godfrey was also at the courthouse on July 2, 2008, and he testified on behalf of plaintiff. According to Godfrey, defendant told plaintiff "this is the last time you're coming here," and defendant also said, "I'm getting tired of going through this mess, [with] you all B-I-T-C-H-E-S." Godfrey testified defendant "sounded like he was full of aggression . . . like he was mad and upset." However, during cross- examination, Godfrey agreed that defendant seemed to be expressing his frustration:
Q: And I believe what you testified to was he said this is the last time I'm coming here. Is that correct?
Q: He didn't say to her this is the last time you're coming here. He said this is the last time I'm coming here. Is that correct?
Q: And you have no idea as you sit there today, what he meant by ...