On certification to the Superior Court, Appellate Division.
The opinion of the court was delivered by: Justice Hoens
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Hoens, J., writing for a unanimous Court.
The Court considers whether the due process rights of defendant M.D.F. were violated during proceedings that resulted in a Final Restraining Order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.
In 2006, plaintiff J.D. and M.D.F. terminated a long-term relationship that resulted in the births of two children. J.D. continued to live in the house the parties had purchased, along with the children, and she became involved in a new relationship with a boyfriend, R.T. On September 19, 2008, J.D. filed a domestic violence complaint on a court-approved form. The complaint alleged that J.D. and R.T. observed M.D.F. outside of J.D.'s residence at 1:42 a.m. taking flash photographs and, when R.T. pulled aside the curtain to look, M.D.F. drove away. J.D. asserted that M.D.F.'s purpose was to harass her. In the section of the form inquiring about prior domestic violence, J.D. referred to (1) a June 2008 incident in which M.D.F. was outside of the home taking pictures and asked R.T. "how the accommodations were"; (2) an incident in which M.D.F. climbed into J.D.'s window; (3) an assertion that M.D.F. came to the residence at various times; and (4) an allegation that on one occasion J.D. locked her doors and M.D.F. gained entry and harassed her.
Based on J.D.'s complaint, a Temporary Restraining Order was issued. On the return date, J.D. testified that after R.T. emerged from taking a shower, he looked out a window and saw M.D.F. taking pictures. J.D. testified that she went to the window, observed M.D.F. in his vehicle, and could see flash photography. When R.T. pulled back the curtain, M.D.F. pulled away. When the trial court inquired repeatedly if there was anything else J.D. thought the court should know, J.D. described multiple incidents that were not identified in the complaint as being part of the parties' prior history of domestic violence. She told the court that R.T. could corroborate her testimony.
M.D.F. testified that the events J.D. described occurred long ago, he did not know she would be referring to them, and he was not prepared; nevertheless, he answered the court's inquiries about them. When asked about the incident that formed the basis of the complaint, M.D.F. requested that R.T. be sequestered and that he be given an opportunity to question him. After the court sequestered R.T., M.D.F. did not deny that he had gone to the residence and had taken pictures, but claimed that his purpose was not harassment, but to obtain evidence that R.T.'s truck was parked outside to support a motion to transfer custody. He claimed that he was driving slowly by and did not intend to be detected. When the court permitted M.D.F. to question J.D., he attempted to undercut her credibility by focusing on whether he was parked or not. The court found that line of attack irrelevant and, without allowing M.D.F. to question R.T., granted a Final Restraining Order (FRO). As explained by the court, M.D.F. conceded that he had been taking pictures and, in light of the nature of the earlier incidents, his acts constituted harassment.
The Appellate Division affirmed in an unpublished opinion. The panel rejected M.D.F.'s arguments that the trial court incorrectly found harassment, permitted testimony about facts not included in the complaint, denied him the right to defend himself, and failed to create a complete record for review. The panel also rejected M.D.F.'s claim that he was found not guilty of harassment in a Municipal Court proceeding and therefore could not be found guilty of harassment under the Act. The Supreme Court granted M.D.F.'s petition for certification. 203 N.J. 96 (2010).
HELD: In this domestic violence matter, the trial court failed to sufficiently articulate its findings and conclusions and the record contains insufficient evidence to sustain the determination to enter a Final Restraining Order. The matter is remanded to the trial court for a re-hearing to protect M.D.F.'s due process rights and to permit the trial court to evaluate the testimony and the evidence.
1. New Jersey's Prevention of Domestic Violence Act (Act) defines domestic violence by referring to a list of predicate acts that are otherwise found within the New Jersey Code of Criminal Justice. The Act provides that the commission of a predicate act constitutes domestic violence and authorizes the court to impose restraints. Although committing a predicate act may also expose the offender to a criminal prosecution in which the State's burden of proof is beyond a reasonable doubt, the Act tests a victim's entitlement to relief by the preponderance of the evidence standard. Because of the difference in the burden of proof, a judgment of acquittal of the predicate act will not undercut the court's authority to impose restraints or other relief permitted by the Act. (pp. 14-17)
2. Under the criminal statute addressing harassment, N.J.S.A. 2C:33-4, subsection a. requires proof of a single communication that was made anonymously, at an extremely inconvenient hour, or in a coarse or offensive language, for the purpose to harass and in a manner likely to cause annoyance or alarm. Subsection c. requires proof of a course of alarming conduct or repeatedly committed acts with the purpose of alarming or seriously annoying the victim. Distinguishing between acts that constitute harassment for purposes of domestic violence and those that are ordinary domestic contretemps can be difficult. Such a determination may depend on the second inquiry required for complaints under the Act. Upon a finding by a preponderance of the evidence of a commission of a predicate act, the second inquiry is whether a restraining order is necessary to protect the victim from immediate danger or to prevent further abuse. Concluding that a plaintiff has described acts that qualify as harassment and omitting this second inquiry opens the door to abuse of the Act's purposes. (pp. 17-22)
3. Due process requires that a party in a judicial hearing receive notice defining the issues and an opportunity to prepare. It forbids the trial court from converting a hearing on one act of domestic violence into a hearing on other acts that are not alleged in the complaint. Trial courts should use the allegations in the complaint to guide their questions, and avoid inducing plaintiffs to abandon that history in favor of new accusations. Although the Act instructs courts to consider the parties' history of domestic violence, if a trial court allows the history contained in the complaint to be expanded, it has permitted an amendment to the complaint and must proceed accordingly. Courts should liberally grant an adjournment that is based on an expansion of the facts that form the heart of the complaint. During the adjournment, courts can protect the plaintiff by continuing the temporary restraints. Here, defendant's suggestion that he was unprepared to defend himself against the new allegations was sufficient to raise the due process question. Additionally, M.D.F. sought to demonstrate though his questioning of R.T. that he did not intend harassment because he never stopped his car and drove away as soon as he was detected. The trial court's decision to deny M.D.F. the opportunity to cross-examine R.T. violated due process. (pp. 22-28)
4. Not all offensive or bothersome behavior constitutes harassment. Here, the trial court did not identify which subsection of the harassment statute it was applying. The evidence is not sufficient to support a finding under subsection a. because merely being outside of the home in the morning hours is not harassment and J.D. was unaware he was outside until R.T. alerted her, after which he beat a hasty retreat. With regard to subsection c., requiring a course of alarming conduct, the court did not articulate precise findings of fact and conclusions of law and did not explain what it was in the series of past incidents that led it to conclude that M.D.F.'s purpose when he engaged in late-night photography was to harass J.D. Although the trial court focused on one of the earlier incidents, it did not explain how that event demonstrated that M.D.F. acted with the purpose to harass J.D. when he went to take photographs. Although a purpose to harass can be inferred from a history between the parties, that finding must be supported by evidence that the actor's conscious object was to alarm or annoy. The trial court also should have considered the implications that M.D.F. was preparing a motion for a custody change based on J.D.'s cohabitation, and that the motion in fact was filed within hours of the incident. (pp. 28-37)
5. Finally, the record does not include the necessary analysis of the "second inquiry," and thus lacks the required consideration of whether entry of restraints was necessary to protect the victim from harm. Overlooking that important step in the analysis posed the risk of unfairness and error. (pp. 37-38)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, and RIVERA-SOTO join in JUSTICE HOENS's opinion.
JUSTICE HOENS delivered the opinion of the Court.
This appeal presents questions relating to the way in which proceedings brought pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, are conducted.
First, we consider the due process implications that flow from permitting the putative victim to testify about alleged prior acts of domestic violence that were not identified in the complaint. More specifically, we consider how courts confronted with such proffers of testimony can, consistent with the goals of the Act, ensure that both parties are afforded the due process protections to which they are entitled.
Second, we address the parameters of due process to which defendants in domestic violence proceedings are entitled when they seek to call and to cross-examine witnesses.
Finally, we consider the kind and the quantum of evidence required to support issuance of a domestic violence restraining order which is based on the predicate act of harassment.
I. From 1993 until 2006, plaintiff, J.D., and defendant, M.D.F., were engaged in a long-term relationship. Although they never married, they resided together and two children were born to them. After they ended their relationship, they sought the assistance of the courts in a variety of disputed proceedings, including a litigated palimony suit, the details of which are not apparent from the record on appeal in this matter. What is clear from the record is that following their separation, their relationship continued to deteriorate and they were on the verge of becoming embroiled in a custody dispute when the events that gave rise to this appeal occurred.
Throughout the proceedings relating to the domestic violence allegations in the trial court, the parties appeared without attorneys. As a result, the record has presented challenges to courts at every level. Relevant to this dispute, it appears that at all times since the end of the relationship, plaintiff continued to reside in the home that she and defendant had purchased together. The couple's two children resided with her, as did an older child of hers that she had from a relationship prior to the one with defendant. By the time of the events in issue, plaintiff had begun a relationship with a new person, R.T., who she referred to as her boyfriend, and who was present during the events in question.
Because defendant first asserts that his due process rights were
violated, we recite the facts not in chronological order
they were disclosed in the domestic violence complaint
and as they
unfolded at trial. Plaintiff's domestic violence complaint,*fn1
which was filed on September 19, 2008, was apparently
compiled with the assistance of court personnel based on information
plaintiff supplied and was transcribed on a court-approved form.
According to the complaint, plaintiff and her boyfriend, R.T.,
observed defendant outside of plaintiff's
residence at 1:42 a.m. taking flash photographs. In the complaint,
plaintiff alleged that as soon as her boyfriend pulled aside the
curtain to look, defendant drove away. According to the complaint,
"[p]lain[tiff] reports def[endant] did this for the sole purpose of
harassing plain[tiff] and attempting to cause strain in plain[tiff]'s
The court-approved complaint form has a series of boxes identifying the numerous predicate offenses that can support issuance of a domestic violence restraining order, but on the complaint filed by plaintiff none of the boxes for a predicate act was checked off. The form also has a space for reciting prior or pending court proceedings between the parties. In that part of the form, plaintiff's September 2008 complaint identified two Family Division matters by docket number. The two docket numbers apparently relate to the palimony dispute and a custody and parenting time matter. The complaint also refers generally to "prior FVs" without further explanation.
In the section of the complaint form that requested identification of prior incidents of domestic violence, plaintiff referred to several. These were: (1) a June 2008 incident*fn2 in which defendant was outside of the residence taking pictures and asked her boyfriend "how the accommodations were"; (2) an undated incident*fn3 in which defendant climbed in her window and "attempted to have relations w[ith]" her; (3) an assertion that during "their separation def[endant] would come to the residence at various times"; and (4) an allegation that "[d]uring another occasion pla[intiff] had locked her doors and yet def[endant] was able to gain entry & harass" her.*fn4
Based on that complaint, a Temporary Restraining Order (TRO) was issued and a return date was set for the following week. For reasons not apparent from the record, the matter was adjourned and a new return date fixed for a few days later. Plaintiff, accompanied by R.T., and defendant appeared on the adjourned return date.
After administering the oath to plaintiff and defendant, the trial court began to hear testimony from plaintiff about the basis of her complaint. Plaintiff briefly described the events that took place on September 19, explaining that her boyfriend, after emerging from the shower, went to hang a towel at the bedroom window. According to plaintiff, as R.T. was looking out of the window, he told her that he saw defendant outside taking pictures. Plaintiff further testified that she then "went to the window and [defendant] was in his white Dodge, outside ...