May 25, 2010
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 that. Is that correct?
A: Not really.
Q: Maybe he thought everything was going to be resolved that day in court and he wanted to tell everything to the judge so he never would have to come back here again, and he was expressing his frustration. Right?
A: That's how it seemed, yeah.
Q: . . . Now, he never raised his hand, did he?
Q: Would you agree that it was maybe loud, or loud for a court hallway?
Q: And based upon that his mother came and took him away.
A: No, his mother was right next to him.
Q: And took him away, said let's get out of here.
There was also testimony that sheriff's officers intervened to calm things down because the conversation between defendant, plaintiff, and plaintiff's mother "became rather loud and rather heated." Moreover, based on the following colloquy between the court and defendant's attorney, defendant argues the judge's decision to grant the FRO was influenced by "events she witnessed or assumed," or information the judge received from sheriff's officers:
[DEFENDANT'S ATTORNEY]: Obviously, Judge we know that the sheriff's officers had to go calm the situation down.
THE COURT: Yeah, they calm them down almost everyday. There are certain levels of calming. And this one rose to a level of a problem.
[DEFENDANT'S ATTORNEY]: Judge, only because she filed for a restraining order. . . .
THE COURT: . . . [O]fficers don't recommend filing a restraining order in every case, but in this case it was discussed.
[DEFENDANT'S ATTORNEY]: Judge, I don't know if the officers recommended it. There's [no] testimony --
THE COURT: They talked about it.
[DEFENDANT'S ATTORNEY]: There's no testimony before this Court, there's nothing in this record today that said that they recommend filing a restraining order . . . .
[W]ith all due respect to the Court, I don't know where the Court's gathered that information.
THE COURT: Because the Court was here when it happened so the Court knows. I do recall -- we can get the testimony from them, when it happened out in the hallway there was a large commotion, officers were out there, and the next thing the Court was advised was that plaintiff was filing a restraining order.
[DEFENDANT'S ATTORNEY]: Anybody can do that. How many times a day do they have to go out there and calm people down? . . . With all due respect to this Court, the Court really shouldn't consider things that aren't in the record or consider prior knowledge that the Court has of the case in rendering a decision.
THE COURT: I didn't hear the threat. I just knew the process in which she filed. She was in front of me.
Although the court did not resolve the exact language of defendant's statement to plaintiff, which was disputed by the parties, the court found the statement did not constitute a threat. The court also found it was a "close call" whether defendant's statement was made with a purpose to harass plaintiff. The court ultimately determined that defendant's statement was made "to harass her and cause her some frustration and pain."
Based on our independent review of the record, we agree that this was a close case. Moreover, it is clear that the judge spoke to the sheriff's officers, who intervened "in an altercation in the hallway" on the day that plaintiff filed her domestic violence complaint. In addition, the court recalled "a large commotion" prior to being advised "that plaintiff was filing a restraining order." Under these circumstances, the record supports defendant's claim that the matter should have been heard by "a different judge who was not familiar with the facts of the case." See Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 605 (2010) ("When the judge is the trier of the facts he must not permit his own personal knowledge to influence his decision in the case.").
We further note the trial court was legitimately concerned with the parties' failure to follow a prior visitation order requiring the presence of a third party whenever their child was exchanged. Nevertheless, plaintiff's domestic violence complaint did not refer to any visitation problems, and it was "improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint." L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999). We therefore reverse and remand for a new trial before a different judge. The FRO dated July 23, 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.
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