December 21, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FV-06-330-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 12, 2010 - Decided Before Judges Lisa, Reisner and Alvarez.
Defendant B.O. appeals from the December 16, 2009*fn1 denial of his request to vacate a final restraining order (FRO) issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. For the reasons that follow, we affirm.
Defendant and his wife, plaintiff L.K.O., have four children. The family lived together when the events occurred which culminated in plaintiff's request for a temporary restraining order (TRO). Both parties were involved in the operation of a very successful family business. At present, in addition to the pending divorce initiated by plaintiff, defendant is pursuing an oppressive shareholder suit against plaintiff.
Plaintiff's domestic violence complaint alleged, among other things, that defendant threw her into a swimming pool while she was pregnant, told plaintiff "where he'll put her body," has "[broken] items in [the] house," and "has thrown pla[intiff]." Based in part on these representations, the TRO was issued on September 23, 2008.
On October 2, 2008, at the FRO hearing, both parties appeared in court with counsel. Defendant admitted to one act of domestic violence before now-retired Judge Testa, as a result of which the FRO issued. Defendant signed and dated the FRO, below the following boilerplate language:
Defendant hereby acknowledges receipt of the [FRO]. I understand that pursuant to this court [o]rder, I am not to have any contact with the named plaintiff . . . and that I can be arrested and prosecuted if I violate this [o]rder. I understand that . . . any person against whom a [FRO] in a domestic violence matter has been entered shall submit to fingerprinting and other identification procedures as required by law and I HAVE BEEN ADVISED THAT I MUST SUBMIT TO FINGERPRINTING AND OTHER IDENTIFICATION PROCEDURES.
An addendum attached to the FRO, signed by the parties and their respective counsel, addressed various marital and child-related issues, such as defendant's supervised visitation. The final sentence in the document, appearing immediately above the signatures of counsel and their clients, reads: "[w]e hereby consent to the form of this order pages 1-6 as an addendum to the FRO of October 2, 2008."
Judge Testa accepted defendant's admission that he smashed plaintiff's cell phone as the requisite factual basis for issuance of the FRO. When the judge asked defendant if he understood that his acknowledgment of the commission of one act of domestic violence was sufficient for entry of the order, defendant responded "yes." Defendant further stated that the admission was made of his own free will, and that he was not under the influence of drugs or alcohol.
Defendant's attorney did, late in the proceeding, express concern that defendant might not be competent to answer the court's questions:
[DEFENSE COUNSEL]: Your Honor, my concern is, I'm not confident that my client is comprehending the questions. He has some psychological and emotional issues --
THE COURT: So you don't think he's competent?
[DEFENSE COUNSEL]: I do believe he's competent . . . .
Approximately a month after issuance of the FRO, on November 12, 2008, plaintiff filed a divorce complaint. Five days later, defendant appealed the FRO, but subsequently withdrew the notice of appeal.
Almost one year later, defendant sought to vacate the FRO. Judge Johnson denied the application on December 16, 2009. Defendant filed an oppressive shareholder suit while the motion to vacate the FRO was pending.
Judge Johnson's thirty-eight-page decision stressed that since
issuance of the FRO, the parties have engaged in tumultuous,
extensive, and highly acrimonious litigation. Their inability to agree
has significantly affected the lives of their children.*fn2
As Judge Johnson said, the matter "has the makings of a
Shakespearean tragedy." He opined that dissolution of the FRO would
allow "defendant the opportunity to return to the marital home and/or
the marital business, at [a] time of such a high state of agitation
and animosity between the parties [which],
for lack of a better metaphor, [would] throw gasoline on an already
raging fire." He denied the motion to vacate, dismiss, or modify the
FRO because in his view application of the relevant Carfagno factors
mandated that result. See Carfagno v. Carfagno, 288 N.J. Super. 424
(Ch. Div. 1995). The court also opined that defendant could not assert
a claim of ineffective assistance of counsel as a separate ground for
dissolution of the FRO because he did not have a constitutional right
to counsel in a Domestic Violence Act proceeding.
On appeal, defendant contends not only that Judge Johnson misapplied the Carfagno factors, he also contends that the ineffective assistance of his first counsel makes it inequitable for the FRO to continue in effect. His remaining arguments challenge the merits of the order.
In support of her request for a TRO, plaintiff certified the following. At 4:00 a.m. on September 23, 2008, she was awakened by a noise and found defendant unconscious on the floor, his eyes watery and his clothes wet with urine. She called 911, but defendant refused medical treatment.
Plaintiff went to work that day. When she arrived home at approximately 4:00 p.m., defendant became enraged when he noticed her wearing a Bluetooth cell phone earpiece and he accused her of being unfaithful. He demanded the earpiece, and grabbed at her. While chasing plaintiff, defendant seized her cell phone and smashed it against a table. He threw her against a wall and ripped the phone cord from a landline when she attempted to call for help. He systematically destroyed all of the phones in the home and then left. Plaintiff was able to contact 911 from an old, still-operational fax machine defendant had overlooked.
When defendant returned to the parties' home, he claimed "he had no idea what was happening." He was taken to the hospital, but asserted, illogically, that he only agreed to go in order to protect plaintiff. The record is unclear as to defendant's hospital discharge and his return to the marital residence. Eventually, however, plaintiff demanded that defendant leave and he did so.
We do not disturb a trial court's factual findings unless unsupported by "adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). And we pay particular deference to the Family Part's expertise. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). But the legal consequences which flow from such factual determinations "are not entitled to any special deference." Manalapan Realty LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Defendant asserts that "[t]he motion judge erred when he failed to dismiss the FRO based upon changed circumstances." Changed circumstances is a means of proving the "good cause," pursuant to N.J.S.A. 2C:25-29(d), necessary for dissolution of an FRO. Carfagno, supra, 288 N.J. Super. at 433-34. In determining whether good cause has been established, courts examine the alleged circumstances against the eleven Carfagno factors. They are:
(1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant's request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court. [Id. at 435-42.]
Judge Johnson sequentially considered each factor in reaching his conclusion; our review tracks his analysis. Plaintiff vigorously opposed dissolution of the FRO contending, first and foremost, that she continues to fear defendant. The judge found that plaintiff's fear is reasonable and this factor becomes particularly significant when the parties have children. Id. at 437. As the judge noted, "[t]here are substantial money issues, accusations of wrongful disbursement of marital funds and control of a very successful business in question - the parties are in a continued high state of anxiety as to all." He said the numerous applications engendered by the parties' separation, the accusations and cross-accusations, the involvement by family members and professionals as advocates for one side or another, result in a "situation [that] is ripe for dangerous emotion and behavior to occur . . . ." The relationship between the parties today is even more adversarial than when the FRO issued. Hence, the judge found this "volatile and dangerous" relationship weighs against dissolution of the restraining order.
Defendant, to his credit, has honored the FRO. There is no evidence that he is actively abusing drugs or alcohol. He has not been involved in other violent acts with other persons, nor have other jurisdictions issued restraining orders protecting plaintiff from defendant. Defendant has participated in counseling. The motion judge acknowledged these positives.
Given the extensive litigation and intense hostility between the parties, plaintiff's opposition to the dissolution of the order is asserted in good faith. The age and health of defendant are not factors.
In summary, the court found, these litigants continue in a "highly emotional" and "heightened state of agitation towards each other . . ." and the FRO "maintains" a necessary "paper buffer" between them.
We agree that to dissolve this FRO would run counter to the principles enunciated in Carfagno to no purpose. The parties battle at every front; there has only been an increase in, not a diminution of, the hostility between them. See Kanaszka v. Kunen, 313 N.J. Super. 600, 608-09 (App. Div. 1998).
Defendant contends that his trial counsel misrepresented the legal consequences of his admission to an act of domestic violence; that his only focus in the FRO proceedings was to resume contact with his children; and that he was therefore unable to comprehend the meaning of the order. He also claims that his attorney advised that if he admitted to an act of domestic violence, plaintiff would enter into a consent order setting forth merely "[c]ivil [r]estraints." The sincerity of this claim is undercut by the form language of the order as found above defendant's signature on the FRO. The boilerplate language uses terms such as "arrested," "prosecuted," and "fingerprinting" not ordinarily associated with civil orders.
Furthermore, he argues, the trial judge did not adequately advise him of the consequences of his admission. We do not agree with any of these propositions.
Judge Testa inquired of defendant and his attorney as follows:
THE COURT: And, what are the acts complained of that you're admitting to, counsel?
[DEFENDANT'S COUNSEL]: Specifically, Your Honor, the acts would be on September 22nd, that there was an incident between the parties, and that my client broke  plaintiff's cell phone. And, that -- he understands that that placed her at risk in fear of her safety. If the Court wants, I'll inquire.
THE COURT: Is that correct, sir?
DEFENDANT: Yes, sir.
THE COURT: Do you understand by admitting to one act of domestic violence, the Court does not need to hear testimony as to all of the other allegations, and is required to -- and I'll sign a restraining order against you; do you understand that?
DEFENDANT: Yes, sir.
Under these circumstances, the judge's explanation was sufficient. Defendant signed the six-page written addendum to the FRO agreeing to conditions such as supervised visitation, as did his attorney on that same day. Defendant had the opportunity to read both the FRO and the handwritten addendum before he signed those documents. He had the opportunity to tell Judge Testa that he wanted a postponement, or to otherwise express his reservations, questions, or concerns. His silence on that day speaks volumes.
Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). But this right to counsel generally does not arise in civil proceedings. State v. Nasir, 355 N.J. Super. 96, 109 (App. Div. 2002), certif. denied, 175 N.J. 549 (2003). In fact, we recently deferred consideration of this very question. See Crespo v. Crespo, 408 N.J. Super. 25, 45 (App. Div. 2009).
Defendant on appeal assumes an established right to counsel in FRO proceedings - that is not correct. See Crespo, supra, 408 N.J. Super. at 45. In any event, here defendant not only had an attorney, but clearly had the means with which to retain another attorney if not satisfied and ultimately did so. Accordingly, there is no need to reach the issue of whether counsel is constitutionally required in a domestic violence proceeding as defendant had an attorney of his own choosing. Neither do we reach the question in this case of whether in such proceedings, a litigant has the right to effective legal counsel. See ibid. Defendant's claims about his attorney's shortcomings are simply uncorroborated and are contradicted by the record. See State v. Cummings, 321 N.J. Super. 154, 170 (1999).
Where a defendant has the willingness and wherewithal to contest every provision contained in a FRO, and is in the process of doing so, an allegation of ineffective assistance of counsel becomes just another means of attack. It does not spring from a genuine constitutional concern. No provision of substance in the FRO is going unchallenged by defendant, and in the challenges on all fronts, defendant is represented.
Defendant's remaining points relate to whether the court had a sufficient basis to issue the FRO. Our consideration of these contentions, however, is barred by Rule 2:4-1, which limits a party to forty-five days within which to appeal a final judgment. R. 2:4-1. Defendant withdrew the appeal he timely filed. He now seeks by virtue of this application to raise the very issues that no doubt would have been considered had he followed through on his appeal.
Furthermore, none of these claims were raised to Judge Johnson, a second reason making consideration improper. The arguments do not implicate either the jurisdiction of the trial court, nor do they concern matters of substantial public interest. See State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see also Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2010).
Even if we were inclined to entertain these arguments, they are so lacking in merit as to warrant very limited discussion. For example, defendant asserts no FRO should have issued without a factual basis. To the contrary, taken in context, defendant's sworn statement that he smashed plaintiff's cell phone was a sufficient predicate act of domestic violence under N.J.S.A. 2C:25-19(a). It was indeed an adequate factual basis.
Defendant also argues that the mere act of breaking plaintiff's cell phone did not rise to the level of harassment as defined in N.J.S.A. 2C:33-4. The Domestic Violence Act is intended to extend to the "victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Defendant admitted to smashing plaintiff's cell phone thereby destroying her means of calling for help when she feared for her physical safety. See State v. Hoffman, 149 N.J. 564, 580 (1997). In this case, that single act was sufficient.
Defendant also contends that the FRO is improper because he "consented to it." This mischaracterizes the record. He did not consent to the entry of a restraining order, he merely admitted to engaging in a predicate act, a requisite foundation for the entry of the order.
Defendant's argument that plaintiff has in some fashion abused the Domestic Violence Act in order to gain an edge in the matrimonial dispute is so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).