June 28, 2010
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-240-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 25, 2010
Before Judges Parrillo and Ashrafi.
Plaintiff wife appeals from denial after trial of a final restraining order and dismissal of her complaint under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Defendant husband has not responded to the appeal. We affirm because the basis of plaintiff's appeal does not provide grounds to set aside the trial court's decision and further because plaintiff has not provided a record of the trial for us to review the court's rulings during the trial itself.
From the domestic violence complaint filed by plaintiff and the transcript of the trial court's oral decision dated September 1, 2009, we discern the following facts. Plaintiff and defendant were estranged and planning to get divorced. On July 30, 2009, plaintiff went to the home of defendant's ex-wife to pick up the children that she has with defendant. Without knowing more about the relationships, it appears that plaintiff and the ex-wife were on friendly terms because the ex-wife provided daycare for the children. On that date, defendant was at the shore with a friend identified in the transcript as Gallary.
According to plaintiff, at 6:13 p.m. on that date, defendant spoke to her on the telephone, used profanity and made an extremely derogatory reference to her, accused her of being responsible for causing defendant's ex-wife to obtain a domestic violence restraining order against him, and said that he would see her buried next to his ex-wife. Plaintiff had been the victim of an extensive history of domestic violence committed by defendant, including two arrests and a prior criminal conviction and jail sentence for assaultive conduct as well as a number of unreported incidents. Consequently, plaintiff believed that defendant's remarks were a threat to kill her, and she filed a complaint the next day alleging terroristic threats, N.J.S.A. 2C:12-3, and harassment, N.J.S.A. 2C:33-4, as the predicate acts of domestic violence. Plaintiff was granted a temporary restraining order.
To determine whether plaintiff was entitled to a final restraining order, the court held a trial over several days, and a number of witnesses testified. Both parties were represented by attorneys. From the testimony and other evidence presented at trial, the court found that defendant was guilty of prior domestic violence against plaintiff and that she was reasonably in fear of him and entitled to a final restraining order if he committed a current act of domestic violence. But the court concluded that plaintiff had not proven the terroristic threats or harassment alleged as a result of the phone call at 6:13 p.m. on July 30th.
The court predicted that it would be "just a matter of time" before defendant would "get himself in trouble again" because of his character and past domestic violence. Nevertheless, the court concluded that it could not grant a final restraining order under the law because plaintiff had failed to prove by a preponderance of the evidence a predicate act of domestic violence on this occasion, as required by N.J.S.A. 2C:25-29a.
The court's decision relied on the testimony of Gallary that he was with defendant at 6:13 p.m. on July 30th and overheard defendant's phone call to plaintiff. Gallary apparently testified that he heard no threat as described by plaintiff.
To reach a credibility determination between the conflicting versions of the phone call, the court relied on information in the record that defendant had not been served with his ex-wife's temporary restraining order until he returned from the shore at about 7:00 p.m. Therefore, the court concluded, at 6:13, defendant was not yet aware that his ex-wife had obtained a temporary restraining order against him and did not have the motive to make the statements that plaintiff alleged.
On this appeal, plaintiff, now representing herself, alleges she has a police report that states the local police called defendant at 4:57 p.m. and informed him orally that his ex-wife had obtained a temporary restraining order against him.*fn1
She seeks reversal of the trial court's decision on the ground that the court relied on a fact that was false, namely, the time that defendant became aware of his ex-wife's restraining order.
The trial, however, is the time for parties to present all their evidence. With limited exceptions, an appeal does not allow an unsuccessful litigant to introduce new evidence to show that the trial court was mistaken in its factual findings. An appellate court must rely on the record that was presented in the trial court and only rarely and in particular circumstances can consider new evidence that was not presented at trial. If it were otherwise, there would be no finality to court cases, and parties could be repeatedly hauled into court to respond to new evidence or new allegations. Because of these constraints on our authority, we cannot consider the police report attached to plaintiff's brief as proving the time that defendant received notice of the ex-wife's restraining order.
One of our court rules, Rule 4:50-1(b), allows a party to set aside a judgment and be heard at a new trial on the ground that newly discovered evidence would affect the outcome of the case. That rule, however, applies only to new evidence that was not discoverable through the exercise of due diligence in time for use at the original trial. See Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 445 (1980); Posta v. ChungLoy, 306 N.J. Super. 182, 206 (App. Div. 1997), certif. denied, 154 N.J. 609 (1998); Aiello v. Myzie, 88 N.J. Super. 187, 196 (App. Div.), certif. denied, 45 N.J. 594 (1965). In this case, we have no information to suggest that plaintiff and her attorney were unaware of the time that defendant was notified of the ex-wife's restraining order and, more important, that they could not have obtained that information in time to use at the original trial.
Another court rule, Rule 4:50-1(f), often referred to as "the catchall provision," gives the trial court authority to set aside a judgment for any "reason justifying relief from the operation of the judgment or order." The Supreme Court has laid out the broad contours of subsection (f):
[N]o categorization can be made of the situations which would warrant redress under subsection (f). . . . [T]he very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice. [Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994) (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)).]
See also Mancini v. EDS, 132 N.J. 330, 336 (1993); Baumann v. Marinaro, 95 N.J. 380, 395 (1984); Palko v. Palko, 73 N.J. 395, 398 (1977); Hodgson v. Applegate, 31 N.J. 29, 41 (1959).
Rule 4:50-1, however, applies to an application before the trial court to vacate a prior judgment or decision. It is not applicable in the first instance to an appeal filed in the Appellate Division. In Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992), we quoted from prior case law the following principle of appellate practice:
[T]he very theory and constitution of a court of appellate jurisdiction is only the correction of errors which a court below may have committed, and a court below cannot be said to have committed an error when its judgment was never called into exercise, and the point of law was never taken into consideration. [quoting McDermott v. Patterson, 122 N.J.L. 81, 84 (E. & A. 1939) (citing Walter v. Keuthe, 98 N.J.L. 823 (E. & A. 1923)).]
This statement means that plaintiff's first recourse under the rules cited for vacating a judgment is to apply to the trial court.
As to the exercise of our appellate role, we have no trial transcript to evaluate whether the trial court erred in purportedly excluding evidence of the ex-wife's temporary restraining order and thus the timing of defendant's knowledge of that order. Since the timing of defendant's knowledge was crucial to the court's decision, it seems unlikely that the court would have excluded admissible evidence regarding when defendant learned of the order, even if the trial court did exclude evidence regarding the reasons for and contents of the ex-wife's restraining order. Without an adequate record, we cannot find any error in the trial court proceedings.
Plaintiff's appeal does not present a basis for us to override the trial court's decision. As the complainant, plaintiff had the burden of proving her allegations by a preponderance of the evidence. See Crespo v. Crespo, 408 N.J. Super. 25, 36-40 (App. Div. 2009), aff'd, 200 N.J. 207 (2010); Roe v. Roe, 253 N.J. Super. 418, 427-28 (App. Div. 1992). Despite the trial court's finding that defendant had committed serious domestic violence against plaintiff in the past and was likely to do so again in the future, the court concluded that plaintiff had not proven he was guilty of terroristic threats or harassment on July 30, 2009.
"[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). In this case, plaintiff's appeal does not meet that standard.