November 10, 2011
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-918-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2011
Before Judges Ashrafi and Fasciale.
Defendant husband appeals from a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). We reverse and remand for a new FRO hearing.
The parties are married and have an eleven-year-old daughter and a six-year-old son. On November 1, 2010, the wife filed a domestic violence complaint against her husband for criminal mischief, N.J.S.A. 2C:17-3(a)(1). She alleged that her husband yelled, cursed, and caused damage to a kitchen wall in their residence. A municipal court judge entered a temporary restraining order, barred the husband from the marital residence and from visiting his children, and scheduled the FRO hearing.
On November 9, 2010, a Family Part judge conducted the hearing. The parties appeared without attorneys and the judge asked the wife to explain what occurred. She explained that after they had hosted a Halloween party, she decided to sleep on a couch in the basement because her husband had been drinking and she needed rest. The wife testified that her husband then became enraged and started yelling and cursing. After they talked in the basement, he walked outside and she went to their bedroom. The husband returned and the wife believed that he went into the living room. After that, she walked into the kitchen and noticed that there "was a crack in the sheetrock." She called 911, and the police arrived and arrested the husband.
The husband testified that his wife had also been drinking during the party. He admitted that he was aggravated because she wanted to sleep on the couch. The following exchange then occurred between the judge and the husband:
The court: [W]hat happened in this case is that . . . they marked this criminal mischief for putting . . .
The husband: Can I . . .
The court: - - the hole in the sheetrock.
The husband: Can I explain that?
The Court: No, you don't even have to.
The husband: I mean, the - - the only - - . . . .
The court: Don't talk anymore, just let me . . . explain this to you. She's proven . . . that you scared the heck out of her[.] I find that . . . you harassed her, that's harassing to be that frightening and to scare a person as badly as she was scared.
After the judge made that finding, the wife added that she believed her husband had a drinking problem and anger management issues. The judge then stated:
[T]here's a lot of drunks, a lot of alcoholics, that's the nice word for it, who are docile. There's a lot of alcoholics who you couldn't get them into a fight.
That is an infliction and maybe [the husband is] going to have to find a way back into your trust, because I'm going to enter a permanent - - I'm going to make this a final order.
The judge barred any direct communication between the parties, but offered to the wife the opportunity to have telephone contact with her husband, which she declined. The judged asked the wife what visitation she believed would be appropriate for the husband and their children. The judge then imposed a requirement that the husband have no alcohol ten hours before visitation "[s]o he can't show up drunk[.]" The judge indicated that the parties had to return to court to address permanent visitation and child support. Finally, the judge advised that he could not "force [the wife] to file . . . for a divorce, but if [she did] file for divorce, [a different court would] take jurisdiction over all of these matters, except for the restraining order."
On appeal, the husband contends that the judge failed to
(1) provide a fair hearing; (2) find that a predicate act of domestic violence occurred; and (3) find that an FRO was necessary to protect the wife from immediate danger or to prevent future harm. Defendant argues that the cumulative errors warrant a reversal.
Trial court fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010). The trial court sees witnesses firsthand and has a "feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (internal quotation marks omitted). We give additional deference to factual findings of the family courts because they have special expertise, ibid., and we do not second-guess the exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
Nonetheless, when determining whether to grant an FRO pursuant to the Act, the judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). See also Cesare, supra, 154 N.J. at 402-05. "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Silver, supra, 387 N.J. Super. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.
Here, the wife alleged in the complaint that the husband engaged in the predicate act of criminal mischief, N.J.S.A. 2C:17-3(a)(1), of which a person is guilty if he or she "[p]urposely or knowingly damages tangible property of another." However, the judge made no findings of fact concerning these elements. Rather, he essentially expanded the domestic violence complaint to include an allegation of harassment under N.J.S.A. 2C:33-4(a), which provides in part that a person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm[.]
Trial judges may not "'convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.'" J.D. v. M.D.F., 207 N.J. 458, 478-79 (2011) (quoting H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003)) (internal quotation marks omitted). Here, the domestic violence complaint alleged criminal mischief; it did not allege harassment and therefore did not afford defendant notice of or adequate opportunity to prepare for a harassment allegation, as due process requires. Id. at 478; H.E.S., supra, 175 N.J. at 321.
Next, there must also be a finding that "'relief is necessary to prevent further abuse.'" J.D., supra, 207 N.J. at 476 (quoting N.J.S.A. 2C:25-29(b)); L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 536 (App. Div. 2011). It is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The determination whether such an order should be issued must be made "in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment[,] and physical abuse and in light of whether immediate danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29(a)(1) and (2)); Peranio, supra, 280 N.J. Super. at 54. Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127.
Here, the judge made no finding that the FRO was necessary to protect the wife from immediate danger or to prevent further abuse. Rather, he assumed that the husband had an alcohol problem, issued the FRO, and imposed conditions on temporary visitation with the children.
We reverse, remand, and direct that a new FRO hearing be conducted on an expedited basis. Pending the scheduling of the hearing, the FRO will remain in place. We do not retain jurisdiction.
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