On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0187-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 30, 2011
Before Judges Payne and Messano.
Defendant, G.M., appeals from the entry of a final restraining order (FRO), declaring her to have committed an act of domestic violence as set forth in the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 through -35, consisting of harassment pursuant to N.J.S.A. 2C:33-4c, by engaging in a course of alarming conduct with the purpose to seriously alarm or annoy her estranged husband, plaintiff F.M. On appeal, defendant argues that the FRO was not supported by adequate, substantial and credible evidence and should therefore be vacated. Defendant argues additionally that the trial judge improperly denied her the right to call a witness in her defense, defendant's superior, Sergeant Ribaudo, who was a witness to the events at issue and allegedly could have testified that defendant's conduct was not harassing. Agreeing with defendant's argument that the evidence does not support the entry of an FRO, we reverse.
At the trial of this matter, both parties appeared pro se and submitted to extensive questioning by the Family Part judge. No additional witnesses appeared. The record establishes that plaintiff and defendant were, at the time of trial in this matter, married but estranged. A divorce action had been instituted by defendant. The parties had two children, a son, age eight, and a daughter, age eleven, over whom they had joint custody. The couple was interracial. Plaintiff is an African American who was then employed as a police officer with the Borough of Roseland Police Department; defendant is white. Before their separation, they lived together in a house in Morristown. Thereafter, defendant moved to the Jersey Battered Women's Shelter. Plaintiff moved to an apartment in Roseland. However, they retained possession of the Morristown house.
Prior to August 13, 2010, defendant was the primary caretaker for the children. Following a motion by defendant for unstated relief,*fn1 a judge of the Family Part, apparently without a hearing, ordered that residential custody of the children be transferred to plaintiff, since defendant lacked stable housing, and she set a visitation schedule that gave defendant custody of the children from 5:00 p.m. on Friday to 5:00 p.m. on Sunday and on Wednesday from 4:00 p.m. to 9:00 p.m.*fn2
Prior to the events at issue, there had been considerable domestic violence litigation between the parties. As plaintiff expressed it at trial, defendant had at some point threatened that if he did not go to counseling or talk to her, she would go to his Chief of Police. Thereafter, she filed domestic violence complaints on a cycle of every thirty-five to forty days. As a result of the entry of successive temporary restraining orders (TROs), he had been taken from his position as a detective, which he had occupied for five years, and had been placed on desk duty as a patrolman, without a weapon or the ability to earn overtime. Further, the police conducted an internal investigation with respect to any complaint by defendant, and in accordance with the Attorney General's guidelines, he had been ordered to complete a twenty-six-week program of domestic violence group counseling.
While plaintiff is correct that a significant number of domestic violence complaints were filed, according to the judge, plaintiff was responsible for three, including the matter on appeal, whereas defendant initiated four. All were mentioned by the judge at trial, with details given as to some. Those that were discussed in detail generally concerned disputes over the children. Because neither party included plaintiff's domestic violence complaint in the record on appeal, we are unable to determine whether defendant had notice that this evidence would be adduced. As a consequence, we are unable to determine if defendant's due process rights were abridged at trial as the result of lack of notice of the claims against her. See J.D. v. M.D.F., ___ N.J. ___, ___ (2011) (slip op. at 22-26) (permitting introduction of evidence of domestic violence beyond that set forth in the complaint but holding that if such evidence is presented, it should be deemed by the court to be an amendment to the complaint as to which an opportunity to defend must be afforded).
On December 16, 2009, defendant filed a domestic violence complaint under docket number FV 14-645-10. A TRO was issued, and at that time plaintiff's service weapons and a hunting knife were confiscated, and he was assigned to desk duty.*fn3 However, an FRO was not entered. Defendant filed a second complaint on February 17, 2010 under docket number FV 14-796-10, which was also dismissed.
Further legal action occurred in March 2010. In FV 14-996-10, filed on March 7, 2010, plaintiff alleged that defendant was one hour late in producing the children for visitation and that, during that hour, defendant was utilizing a truck that he needed to pick up "something." He further alleged that defendant obstructed his efforts to obtain visitation with the children. A TRO was denied. In FV 14-924-10, instituted by defendant nine days later, she claimed that, in the course of a dispute regarding visitation with the children, plaintiff had assaulted her with his pickup truck. The matter was tried, and an FRO was denied, allegedly on the basis of plaintiff's testimony that defendant had jumped in the path of the truck. However, defendant claimed that a criminal action for assault remained pending. Plaintiff admitted that he had been arrested for assault as a result of the incident. Additionally he had been charged with contempt for violating a TRO by contacting his daughter when the order precluded him from doing so. However, the matter had not been heard at the time of trial.
In April 2010, plaintiff instituted FV 14-1091-10, in which he complained that, because plaintiff was living in a shelter, he had difficulty contacting his daughter. A TRO was denied. Also, in April 2010, plaintiff complained to the Morristown Police Department that defendant followed him with a video camera as he left the couple's former Morristown residence. An ...