On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-1246-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 6, 2010
Before Judges C.L. Miniman and Waugh.
Defendant J.E.C. appeals from a Final Restraining Order (FRO) entered on January 13, 2009, restraining him from having any contact with plaintiff D.C. and barring him from her places of residence, employment, and worship, and further requiring supervised visitation with the parties' two children. We reverse and remand for a new trial.
On December 29, 2008, plaintiff filed a domestic violence complaint alleging that on December 28, 2008, at 7:52 p.m.:
Defendant engaged victim in a verbal altercation. During the argument, and at other times, defendant whispered in victim[']s ear, "I'm going to get you." Victim states defendant has been making this threat often. Victim also states defendant spit on her approximately one year ago.
Plaintiff asserted these acts constituted terroristic threats contrary to N.J.S.A. 2C:12-3 or harassment contrary to N.J.S.A. 2C:33-4. She represented that there was no prior history of domestic violence. She revealed the pendency of a dissolution action between the parties. A temporary restraining order (TRO) was entered upon the filing of the complaint, which was served on defendant the following day. Defendant was notified that a final hearing was scheduled for January 8, 2009.
Defendant appeared pro se on the scheduled date at which time plaintiff's attorney elicited testimony from plaintiff and her witness, both of whom defendant cross-examined. Defendant was then examined by the judge and cross-examined by plaintiff's attorney. The hearing continued on January 13, 2009, when defendant elicited testimony from his brother, who plaintiff's attorney cross-examined.
With respect to the events of December 28, 2008, plaintiff testified she was in the marital home while defendant visited his children. She was required to supervise visitation. He had been making her nervous during the visit by coming up behind her every time he went out for a cigarette. He took a premarital file from the basement closet, put it in his car, and then denied taking anything out of the house. Around 8:00 p.m., defendant wanted some files that were locked in a file cabinet. She gave him the key and called her sister to have her on the telephone while she interacted with defendant; defendant called his brother for the same reason.
Plaintiff asked defendant not to remove anything from the file cabinet, but rather to stack them up, and she would photocopy them. He insisted on taking them, and she suggested that they wait until a neutral party was present so they could go through the files together. Defendant refused, stood up abruptly, and stepped toward her with the files in his hands. Plaintiff said, "[Y]ou know what -- my sister was on the phone, and she said, you . . . need to call the police. This is getting too . . .," and plaintiff hung up the phone and called the police. After reciting a litany of concerns about his behavior over the past two years, none of which involved any physical abuse or terroristic threats, plaintiff testified that defendant said "I'm going to get you" on December 28. Although she did not know what that meant and did not want to know, she believed he would harm her.
Plaintiff's sister testified that on December 28 she was speaking by telephone with her sister and overheard defendant ask to go through some files. She heard her sister say she would give him the keys to the file cabinet. She then heard defendant say that he wanted to take some files and plaintiff say that he should make a pile of the files he wanted and she would copy them. Defendant responded that he would take whatever he wanted and there was nothing she could do about it. She then heard plaintiff say, "Johnny, don't push near me" and then say they should have a neutral party supervise review of the files. She told plaintiff to tell defendant to leave and then heard defendant speaking to his brother, complaining that plaintiff was "getting very aggressive." As a result, she told plaintiff that defendant was messing with her and she should call the police. She did not testify that she heard defendant say that he "would get" plaintiff.
Defendant testified that on December 28, 2008, he had been asking to look at the files off and on all day and it was not until 8:00 p.m. that plaintiff handed him the keys to the file cabinet. He told her what files he would take and then selected seven or eight folders. Then he heard plaintiff's sister on the telephone telling plaintiff not to let him take the file folders. This precipitated an argument over the files while both parties were on their telephones speaking with their respective siblings. Defendant could hear ...