November 4, 2010
IN THE MATTER OF R.B. RETURN OF WEAPONS
On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. FO-10-101-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 14, 2010
Before Judges Payne and C.L. Miniman.
Respondent R.B. appeals from a November 18, 2008, order for forfeiture of sixty-two weapons and one New Jersey firearms purchaser identification card to the State. Because R.B. is an habitual drunkard within the meaning of N.J.S.A. 2C:58-3c(2), we now affirm.
R.B. and V.B. (wife) were married in the early 1990s. One child was born of the marriage in 1995. The couple initially separated in 1999, but reconciled in 2001. On May 9, 2008, the wife sought a temporary restraining order (TRO) and alleged that R.B. threatened to kill her if she took their son and that there was a prior history of R.B. threatening to kill her pets. The municipal judge denied the TRO, and the wife moved out of the house that day. She then appealed the municipal court judge's denial of a TRO to the Law Division, and the judge granted her a TRO on May 12, 2008. That same day, R.B. sought and obtained a TRO against his wife. In accordance with the wife's TRO, the police confiscated R.B.'s weapons and firearms purchaser identification card.
R.B. and his wife appeared before the Law Division judge on June 12, 2008. Both parties agreed to dismiss their respective TROs and entered into a consent order. The wife filed a complaint for divorce in or about May 2008. When R.B. sought the return of his weapons and identification card, the Hunterdon County Prosecutor's Office objected and sought forfeiture of same under N.J.S.A. 2C:25-21d(3) and 2C:58-3f. The hearings on the forfeiture took place on August 6, August 21, and November 6, 2008.
The following facts were elicited during the forfeiture hearings. In support of the TRO obtained by the wife, she alleged that her husband was an alcoholic who constantly threatened to kill her with various weapons in the home. She testified that he would leave his weapons carelessly around the house and would threaten her with them if she "got out of hand."
The wife also testified that R.B. habitually drank alcohol and often flew into rages when intoxicated. She would visit a terminally ill friend in hospice care, and if she returned late, R.B. would accuse her of infidelity and threaten to shoot her. She testified to a prior history of TROs while they lived in a different county.
After moving to their then-current county, R.B. would sleep with a loaded weapon under his pillow and often threatened to shoot his wife with it. He refused to secure the weapon even after their young son discovered it one day. Loaded guns and ammunition were strewn around their house. Although he had two gun safes, they were never locked. Once, his wife saw him shooting a firearm from a second floor window at an abandoned house located across Route 31. R.B. also threatened to kill the family pets.
During their thirteen-year marriage, the wife formed a belief that R.B. was a chronic alcoholic. He drank beer, vodka, and brandy until he became unconscious. He refused to attend Alcoholics Anonymous (AA) when she would suggest it. At least once when R.B. was drunk, he allegedly raped his wife. He also threatened to kill himself. V.B. also alleged that in 1999 R.B. had two convictions expunged, one for domestic abuse and one for unlawful possession of certain weapons. The exact nature of these allegedly expunged convictions does not appear in the record.*fn1
The wife admitted that she had in the past assaulted and threatened her husband with a gun and has been charged with aggravated assault, possession of a firearm for an unlawful purpose, and illegal possession of a firearm. These charges were resolved through the Pretrial Intervention Program. A subsequent aggravated assault charge was filed against her, but she was found not guilty.
L.W., the wife's maternal aunt, testified about one telephone conversation she overhead in April 2008 between R.B. and his wife during which she heard R.B. threaten to blow off his wife's head if she did not return. This was not the first time she heard such threats. Additionally, R.B. would be verbally abusive toward his wife and once called her a dumb bitch. L.W. had observed R.B. passed out drunk outside his home on several occasions.
M.R., the wife's mother, testified that she would often, if not daily, see R.B. in a drunken stupor. She observed him being physically and verbally abusive toward his wife. According to M.R., once, he struck M.R. in the eye, requiring treatment in an emergency room.
R.B. called two witnesses to refute the testimony of his wife and her relatives and then testified at the hearing himself, asserting that it was he who was the victim of abuse. He denied ever threatening to kill his wife or their dog and claimed that he did not have a temper or anger-management problem. He denied forcing his wife to have sexual relations with him. He testified that he had never been arrested for or charged with hitting or raping his wife. He had never been convicted of domestic violence. He denied having anything expunged from his record, but he admitted that he had a prior conviction for driving while intoxicated.
With respect to his mother-in-law, R.B. claimed that she barged through the door as he was trying to close it and pushed him down on the couch. She then reached into her purse and threatened him by saying that she was going to cut his throat. He then hit her in the face to escape. R.B. was arrested and charged with assault. The matter proceeded to trial, and both his wife and her mother testified. R.B. testified that he was acquitted of assault based on this incident.*fn2 After the trial, the municipal judge sentenced his wife to two weeks in the county jail for perjury and contempt of court.
R.B. further testified that after his wife was released from jail, she learned that he had sex with her sister. She took one of his shotguns, and an altercation occurred. When the police arrived and conducted an investigation, they arrested his wife. On another occasion, they had an altercation when his wife hit him over the head with a bottle because they had a dispute about submitting a property damage claim under their car insurance. R.B. went to the hospital to get stitches for his wound, and the hospital called the police, resulting in the arrest of his wife.
R.B. denied having an alcohol problem and testified that he had inherited many of his guns from his father and grandfather. Some of them were 100 years old, and they were very valuable. He explained that he had been taught gun safety, never left his guns lying around the house, was a hunter, and was a member of the National Rifle Association. He also explained the importance to him of his firearms purchaser identification card because it allowed him to possess his heirloom guns.
At the conclusion of the hearing, the judge placed his findings of fact and conclusions of law on the record as required by Rule 1:7-4(a). With respect to the issues raised by R.B., the judge made the following findings:
So there are obviously issues of credibility here particularly with respect to the extent to which the defendant uses alcohol, the extent to which he handles guns properly or improperly, and whether he's made threats to his wife.
The aunt and defendant's mother[-inlaw] I find to have been credible witnesses[,] and they both confirmed that defendant had been violent to his wife. The aunt describing one incident where[,] actually more than one incident where the defendant had threatened to blow the wife's head off and the mother confirmed that defendant had pushed the wife to the floor and threatened to kill her in addition to the incident when she intervened to protect her in 1995.
So, I'm satisfied based upon the evidence that the plaintiff's version is more credible than the defendant so that I conclude that the plaintiff--strike that--the defendant's wife's version that the defendant has threatened her on numerous occasions, he has been drunk on numerous occasions to the point that he's fall down drunk as he was in 1995 when he assaulted the defendant's wife's mother [M.R.]
And I conclude that there were times when the defendant mishandled weapons, used them as threats by pointing to them and telling the wife to be careful.
I'm satisfied she also--she certainly would feel threatened, felt threatened by the defendant at the time of her testimony[,] and it appears from the history that that has been true for a protracted period of time.
Obviously the weapons cannot be returned to the defendant if he is not a person who would be eligible to maintain firearms under N.J.S.[A.] 2C:58-3(c).
The defendant argues--strike that. The State argues that there are three sections that prohibit the weapons being returned to the defendant.
(1) to any person that has been convicted of any crime or disorderly persons offense involving an act of domestic violence as defined in Section 3 of P.L. 1991, Chapter 261 whether or not armed with or possessing a weapon at the time of such offense.
It is true that the incident on April 28th, 1995[,] the defendant was assaulting his wife when the mother intervened and the defendant in a drunken state struck the wife.
I do conclude that that is involving an act of domestic violence within the meaning of 2C:58-3(c)(1) and N.J.S.[A.] 2C:25-19. One of the offenses of domestic violence is assault.
The parties were living together at that time so the defendant and his wife were living with the mother so I conclude that that does fit within that definition.
The State also argues that Section (2) applies and would prevent it. To any drug dependent person as defined in Section (2) of P.L. 1970, Chapter 226, Chapter 24:21-2.
To any person who is confined for a mental disorder to a hospital or mental institution or sanitarium or to any person who is presently an habitual drunk.
I find notwithstanding the testimony of the defendant that he does fit within the standard of a habitual drunk. Certainly there's obvious testimony from the aunt, the defendant's wife, the defendant's wife's aunt and mother[,] and the defendant has been a habitual drunkard during the period of their living together and therefore he would be prevented under Section (2) from having possession of weapons.
Paragraph (3) or (3) of 2C:58-3(c) indicates to any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms or any person who has ever been confined for a mental disorder or to any alcoholic unless any of the foregoing persons produce a certificate by a medical doctor or a psychiatrist licensed in New Jersey or other satisfactory proof that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in handling firearms; to any person who knowingly falsifies any information on the application form for handgun purchase, permit or firearms purchaser identification card.
While I concluded that he does have a-- that he is an alcoholic within the meaning of this section and there has been no production of a certificate from a doctor that he is no longer suffering from that particular disability.
So I conclude that he is not a person who would be able to obtain weapons or keep weapons in his possession and the language of 2C:25-21(d)(3) also says if the - - as a basis for finding that the weapons should not be returned to a person on the grounds that the owner is unfit or that the owner poses a threat to the public in general or person or persons in particular.
I'm satisfied that the defendant does still pose a threat to his wife as based upon the most recent event of May of 2008 and historically threats that both his wife, the mother, and the aunt, that is the defendant's wife's mother and aunt has reported in the past.
So I conclude that he is a threat to her and is really not fit to, at this point in time because of the alcohol and the manner in which he has handled guns in the past, a fit person to obtain the weapons, a return of the weapons.
R.B. raises the following issues for our consideration:
POINT I - THE TRIAL COURT ERRED IN ORDERING THE FORFEITURE OF [R.B.'S] WEAPONS BECAUSE [R.B.] WAS NOT CONVICTED OF A DISORDERLY PERSONS OFFENSE INVOLVING AN ACT OF DOMESTIC VIOLENCE AND THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT [R.B.] WAS A HABITUAL DRUNKARD OR AN ALCOHOLIC.
A. [V.B., M.R., and L.W.] Were Not Credible Witnesses.
B. The Trial Court Erred In Finding That [R.B.] Was Convicted of a Disorderly Persons Offense Involving an Act of Domestic Violence.
C. The Trial Court Erred in Finding That [R.B.] Was a Habitual Drunkard and an Alcoholic.
Where a judge has complied with R. 1:7-4(a) by making findings of fact and conclusions of law, our review is limited. "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction... [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid. (citations omitted).
R.B. contends that the testimony of his wife, M.R., and L.W. was not credible because their testimony included numerous inconsistencies and biases. He urges that his wife had every reason to make him "look like a 'bad guy'" because she was "in the process of filing for a divorce when the incident in question took place, that she actually filed for a divorce in the Spring of 2008, that she was upset that [R.B. ] was awarded temporary custody of the minor child, and that she was aware that [R.B. ] had sex with her sister."
R.B. argues that M.R. is his wife's mother and L.W. is his wife's aunt, making them biased. He argues that they "would say anything to further the motive of [his wife]." He observes that L.W. did not visit his marital residence too often and had admitted that his wife was "a little slow." He urges that M.R. was not a reliable witness because she could not remember the name of her daughter's high school or whether she ever graduated. Further, she was deaf in one ear and had a significant hearing loss in the other ear.
R.B. also provides us with specific instances of inconsistencies in the witnesses' testimony. He cites to multiple inconsistencies in his wife's testimony. He also points to four inconsistencies in M.R.'s testimony. He argues that "this overwhelming amount of inconsistent and unreliable testimony is an indication that the testimony was not truthful and that the pure motive behind the testimony was to sabotage [him]."
"Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). The fact that the family court judge is presiding over a weapons-forfeiture case arising out of a domestic-violence complaint does not modify this deference. See State v. Wahl, 365 N.J. Super. 356, 359, 369 (App. Div. 2004). We must "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161.
In our review of R.B.'s contention respecting the credibility of the adverse witnesses, we must "'operate in the partial vacuum of the printed record,' and... 'the best and most accurate record (of oral testimony) is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried.'" Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104 (App. Div. 1952). We are not permitted to "weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." Barone, supra, 147 N.J. at 615. We are restricted to the test of "'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).
We have carefully reviewed the record on appeal. We recognize that inconsistencies such as those delineated by R.B. can readily give rise to a litigant's perception that the witnesses against him are not being truthful. R.B.'s former wife and her family may well have had the same perception of R.B.'s testimony. However, incorrect recollections alone do not determine the credibility of a witness as there are many factors to be considered, such as whether the incorrect recollection or change in testimony was willful or innocent, the witnesses' testimony as a whole, their demeanor, their interest in the outcome of the case, the accuracy of their recollection, their ability to know what they are talking about, and whether their testimony was reasonable in light of all of the other evidence in the case. Model Jury Charge (Civil), 1.12L, "Credibility (long version)" (1998). We are satisfied the judge's credibility determinations were "'reached on sufficient credible evidence present in the record.'" Barone, supra, 147 N.J. at 615 (quoting Johnson, supra, 42 N.J. at 162).
The forfeiture statute here at issue provides in pertinent part:
No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth. No handgun purchase permit or firearms purchaser identification card shall be issued:
(1) To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L. 1991, c. 261 ([N.J.S.A.] 2C:25-19), whether or not armed with or possessing a weapon at the time of such offense;
(2) To... any person who is presently an habitual drunkard;
(3) To... any alcoholic.... [N.J.S.A. 2C:58-3c(1) to (3).]
With respect to N.J.S.A. 2C:58-3c(1), "'[d]omestic violence' means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor" that violate fourteen different criminal statutes, including assault, contrary to N.J.S.A. 2C:12-1; terroristic threats, contrary to N.J.S.A. 2C:12-3; criminal restraint, contrary to N.J.S.A. 2C:13-2; sexual assault, contrary to N.J.S.A. 2C:14-2; criminal sexual contact, contrary to N.J.S.A. 2C:14-3; and harassment, contrary to N.J.S.A. 2C:33-4. N.J.S.A. 2C:25-19.
The judge concluded that the incident in 1995, when R.B. was drunk and assaulted his wife while they were living together and her mother had to intervene was "an act of domestic violence within the meaning of 2C:58-3c(1)." R.B. points out that the record does not establish that he was ever "convicted of any crime or a disorderly persons offense involving an act of domestic violence." (Emphasis added.) Thus, he urges that the judge's determination that he was not eligible to possess a firearm or firearms purchaser identification card under N.J.S.A. 2C:58-3c(1) has no support in the record. The State did not respond to this argument.
N.J.S.A. 1:1-1 provides general instructions for judicial construction of statutes and laws in New Jersey:
In the construction of the laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language. Technical words and phrases, and words and phrases having special or accepted meaning in the law, shall be construed in accordance with such technical or special and accepted meaning. [Ibid.]
When a court is called upon to review a statute, determining "[t]he Legislature's intent is the paramount goal," and "generally, the best indicator of that intent is the statutory language [itself]." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano, 177 N.J. 250, 280 (2003)). To determine the Legislature's intent, we begin with the words of the statute and ascribe to them their ordinary meaning.
Mason v. City of Hoboken, 196 N.J. 51, 68 (2008) (citing DiProspero, supra, 183 N.J. at 492). We will read these words "in context with related provisions so as to give sense to the legislation as a whole." DiProspero, supra, 183 N.J. at 492 (citing Chasin v. Montclair State Univ., 159 N.J. 418, 426-27 (1999)).
"It is not the function of [a court of review] to 'rewrite a plainly-written enactment of the Legislature or presume that the Legislature intended something other than that expressed by way of the plain language.'" Ibid. (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)). It is a "well-established canon of statutory interpretation" that the Legislature is presumed to know the judicial construction of its enactments. Johnson v. Scaccetti, 192 N.J. 256, 276 (2007) (citing DiProspero, supra, 183 N.J. at 494). We "cannot 'write in an additional qualification which the Legislature pointedly omitted in drafting its own enactment.'" DiProspero, supra, 183 N.J. at 492 (quoting Craster v. Bd. of Comm'rs of Newark, 9 N.J. 225, 230 (1952)). Nor may we "'engage in conjecture or surmise which will circumvent the plain meaning of the act.'" Ibid. (quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)). Therefore, if the meaning of those words is clear, the analysis is complete, and we need look no further. Mason, supra, 196 N.J. at 68.
The statutory language, "any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence," N.J.S.A. 2C:58-3c(1), clearly requires evidence of a conviction, not past bad acts that, had a domestic violence complaint only been prosecuted to conclusion, might have resulted in a conviction of a crime or a disorderly persons offense. Here, there was no evidence that R.B. was convicted of anything. Indeed, the parties admitted that defendant had no criminal record.
We have considered a similar situation in State v. One Marlin Rifle, 319 N.J. Super. 359 (App. Div. 1999). There, a domestic violence complaint was dismissed after a hearing. Id. at 365. The testimony at the forfeiture hearing included the formerly alleged acts of domestic violence by the husband as well as his use of Paxil and his former mental condition, ibid., as a basis for precluding possession of firearms under N.J.S.A. 2C:58-3. We observed:
Although the domestic violence complaint filed against [the husband] was ultimately dismissed for lack of evidence, such a dismissal does not preclude the court from taking firearms away from a person for posing a threat to public health, safety or welfare. See In re Return of Weapons to J.W.D., 149 N.J. 108 (1997); State v. Volpini, 291 N.J. Super. 401, 413 (App. Div. 1996) (complainant appeared coerced to withdraw her domestic violence complaint); N.J.S.A. 2C:58-3(c). In this regard, the State argues that [the wife's] fact testimony of the harassment and fears created by her former husband's actions and phone calls is so overwhelming that we should affirm the forfeiture of the weapons. An examination of this testimony results in a contrary conclusion. [One Marlin Rifle, supra, 319 N.J. Super. at 371.]
We noted that the husband had no criminal history and no criminal arrests. Ibid. We found no evidence in the record that the husband posed a threat to the public health, safety or welfare. Id. at 372. We noted that in other cases the threat to the public welfare was overwhelming. Ibid. (citations omitted). We concluded that there was no basis in the record for the forfeiture of the husband's weapons and reversed the order of forfeiture. Ibid.
Where a judge misconstrues a statute or fails to correctly apply it to the facts, our review is de novo as the issue only presents a question of law:
Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. See State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference")); see also State v. Brown, 118 N.J. 595, 604 (1990). [State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).]
We are satisfied that the statute here at issue requires proof of a conviction of a crime or disorderly persons offense involving domestic violence. Where there is no such proof, forfeiture may not be ordered under N.J.S.A. 2C:58-3c(1).
R.B.'s last point of error is a claim that there was no evidence to support finding that he was an habitual drunkard or an alcoholic within the meaning of N.J.S.A. 2C:58-3c(2) and (3). A "drunkard" is a person who is habitually "[i]ntoxicated with alcohol to the point of impairment of physical and mental faculties." Webster's II New College Dictionary 348 (2d ed., 1999). "Habitual" means "[a]cting in a certain way by habit," id. at 498, which means "[a] continual, often involuntary or unconscious inclination to perform an activity, acquired through frequent repetition." Id. at 497. "Alcoholic" means "[o]ne who suffers from alcoholism," which means "[p]sychophysiological dependence on alcoholic beverages;... [a] chronic disease, chiefly affecting the nervous and gastroenteric systems, caused by habitual excessive alcoholic consumption." Id. at 26.
It is clear from the definition of "alcoholic" that expert testimony is required to support such a finding under N.J.S.A. 2C:58-3c(3). Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597-98 (1988) ("Given the complexity of the many diagnostic procedures involved, expert medical testimony is required to establish the fact of... alcoholism." (citations omitted)); State v. Freysinger, 311 N.J. Super. 509, 540 (App. Div. 1998) (construing N.J.S.A. 2C:58-3c(2) and (3) and finding "satisfactory proof that a person is an alcoholic in all but the rarest of circumstances requires expert testimony" (citing Clowes, supra, 109 N.J. at 597-99)); cf. One Marlin Rifle, supra, 319 N.J. Super. at 362, 368-71 (requiring expert testimony to establish that husband posed a threat to public health, safety, or welfare under N.J.S.A. 2C:58-3c(5) because he suffered from mental illness). None of the State's witnesses professed to have the special knowledge, skill, and training required to diagnose R.B. with alcoholism. As such, the judge erred in finding that R.B. suffered from alcoholism and in barring him from possessing weapons and a firearms purchaser identification card on that basis.
Last, we consider whether the evidence was sufficient to support the judge's finding that R.B. was "presently an habitual drunkard" who could not possess firearms or have a firearms purchaser identification card. We considered the proofs required to sustain a finding that someone was "presently an habitual drunkard" in Freysinger, supra, 311 N.J. Super. at 516-17.
In Freysinger, the defendant was charged with domestic violence by his girlfriend, who later withdrew the charges. Id. at 512. There, the defendant struck his girlfriend with his car as she was walking home. Id. at 511. Both of them had been at a local bar, but when the defendant was apprehended by the police, he denied that he was drunk. Ibid. However, the defendant pled guilty to driving under the influence of alcohol. Id. at 512.
At the forfeiture hearing, the State contended that the defendant was an habitual drunkard, an alcoholic, and was dangerous to the public health, safety, or welfare under N.J.S.A. 2C:58-3c. Ibid. The defendant stipulated to drunken driving and refusal convictions in 1982, reckless driving and refusal in 1992, and drunken driving that resulted in his striking his girlfriend with his car. Id. at 513. He admitted that he had attended AA meetings since his 1995 guilty plea and further admitted that he attended the Alcoholics Countermeasure Program.
Ibid. He described himself as "an occasional drinker who drank a six-pack at a time." Ibid. He testified that he used his guns strictly for hunting; there were no allegations that he ever misused them. Ibid.
The trial judge concluded that the defendant was an habitual drunkard. Ibid. On appeal, the defendant contended that his driving infractions occurred in the distant past and that his girlfriend did not regard him as an habitual drunkard. Ibid. He urged that the statute distinguished between presently habitual drunkards and those who ceased being habitual drunkards. Ibid. On this issue, we observed:
There are no cases that define what it means to be "presently an habitual drunkard" under this statute. In the matrimonial context, N.J.S.A. 2A:34-2e, habitual drunkenness has been described as "a fixed, frequent, irresistible or regular habit of drinking alcoholic beverages in such excessive quantities as to produce drunkenness." McVey v. McVey, 119 N.J. Super. 4, 6 (Ch. Div. 1972); see also Scully v. Scully, 122 N.J. Super. 94, 96 (Ch. Div. 1972). In McVey, the defendant was declared an habitual drunkard based on corroborated evidence demonstrating that he was drunk four or five times a week. McVey, supra. In Scully, we emphasized that the entire conduct over the qualifying period had to be examined and a period of abstention did not negate a finding of habitual drunkenness. Scully, supra, 122 N.J. Super. at 97. [Id. at 516.]
In affirming, we found that "[t]here was sufficient proof offered at the hearing to demonstrate that defendant not only is an habitual drunkard but also poses a threat to the public health, safety and welfare." Ibid. We cited the defendant's two drunk driving and two refusal convictions and his admission that he hit a pedestrian and then failed to stop. Id. at 516-17.
In this case R.B.'s mother-in-law provided graphic evidence that he was an habitual drunkard. She testified that she was at her daughter's home every day throughout her marriage to R.B. and that R.B. was drunk every time she saw him:
Q: Throughout the marriage have you been in contact with your daughter?
A: Yes, I have. Yes.
Q: And throughout the marriage have you been in contact with your son[-]in[-] law?
Q: Have there been times when you've been to their various homes throughout the marriage?
Q: And have they been to your home throughout their marriage?
A: I mostly went to their house.
Q: Have there been times when everyone would get together at [L.W.'s] or some other sibling's home?
A: Yes. Yes.
Q: Have you ever seen the defendant drinking alcohol in your presence?
A: Yes, I have.
Q: And have you ever seen him drinking to the point of what you consider to be drunk or intoxicated?
A: Yes, I have.
Q: And about how many times would you say it was to that degree that he was drunk or intoxicated?
A: Every time I saw him.
Q: And how often would you say over the years of the marriage.
A: I would go over to my daughter's house like every other day to see if she needed anything or if she wanted to go shopping with me being that I had my little handicap.
And we would go out. We would go out, you know, just to get out of the house, you know, mother/daughter thing. And it was like every other day I was over there because I'm close to my daughter.
Q: And what about seeing the defendant what you considered drunk?
A: He couldn't stand up. He was falling all over the place and finally he just fell down in that one spot and stayed there, passed out, blanked out until the next day he got back up off the floor.
Q: Would you actually see him drinking?
A: Yes, I would. Yes.
Q: What kind of things would he drink?
A: He would - -
Q: What kind of alcohol?
A: Whatever he could get his hands on.
Q: What kind specifically?
A: He would drink Budweiser. Always the hard liquor, the vodka, you know, it didn't matter as long as it got him filled up and high.
Q: Now what do you, besides you said liquor, were there any other things you saw that made you think he was drunk or intoxicated? Would you hear him speak?
Q: What would his speaking be like?
A: It was coming out but with a, you know, he was stuttering. Finally, you know, I would just walk away from him. I don't understand what you're saying, you know. And then he'd start falling all over. I don't go for that, you know, just you can drink, stay away from me, you know.
Q: And what about during holidays, would you be together with your daughter, your son[-]in[-]law, and your grandson?
A: When his father was, yeah, because they went out to parties over there, you know, holiday parties. And when his father was alive it was never any fail to it. He'd get sloppy drunk, then he'd want to pick a fight with, you know, one of my people on my side of the family.
His father actually had to grab him by his collar and go throw him into the bedroom into the bed to go to sleep. And if I were to tell him, look, we're not having no fighting here today. You're drunk, then go to bed.
A: And, you know, but we always saw that.
R.B.'s wife, too, testified that for the duration of their marriage he would become inebriated every day. In addition, R.B. has at least one DWI conviction. We find this evidence to be more compelling than was the evidence before us in Freysinger. We are satisfied that the evidence provides substantial, credible support for the judge's conclusion that R.B. is presently an habitual drunkard.