January 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FO-16-318-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 10, 2012
Before Judges Yannotti and Espinosa.
Defendant G.S. appeals from his conviction for disorderly persons contempt for violation of a final restraining order, N.J.S.A. 2C:29-9(b). We affirm.
Defendant's former wife, D.S., obtained a final restraining order (FRO) against defendant in February 2006. Both the FRO and the May 2006 amended FRO barred defendant from D.S.'s residence and place of employment and also prohibited him, inter alia, from:
3. . . . having any (oral, written, personal, electronic or other) form of contact or communication with [her and their children]
4. . . . making or causing anyone else to make harassing communications to [her and their children]
At the hearing, D.S. testified that on the afternoon of April 12, 2009, Easter Sunday, defendant arrived at her residence to pick up their son for parenting time. She stated that defendant came into the doorway of her house, shouting at her, "degrading [her] because [she is] a Christian" in front of her children. When asked to state precisely what defendant had said, D.S. asked if she had "to say the 'F' word and things like that . . . [b]ecause he used curse words." She stated defendant said, "You think you're a churchgoer, you're so Godly like. You're nothing but [an] asshole." D.S. stated that defendant did this with her children listening and held a blow-up of a photograph of him with an ex-girlfriend defendant had lived with before their marriage. D.S. testified that she told defendant he had to leave and started to close the door.
In his testimony, defendant acknowledged that he entered the front door to pick up his son and did not believe he was prohibited from doing so. He stated he brought an Easter card that he had made with the children's photo on it and wanted his daughter to sign the card if she was not going to go along for parenting time so he could give it to his mother and her husband. He also had the picture described by D.S. with him. Defendant stated that the picture was of a woman he knew from school, not the woman he had lived with prior to his marriage. He denied shoving any pictures in D.S.'s face. Defendant stated he merely asked D.S. if he was going to see their daughter for Easter and his birthday. According to defendant, it was D.S. who angrily screamed at him, stating, "She's not going to see you, she fucking hates you. Because you're a fucking scumbag." She also screamed, "[W]here's my child support arrears. You're a deadbeat Dad." Defendant testified that he did not reply.
Defendant also stated that, at the time of the incident, his relationship with D.S. was strained because they were scheduled to return to court approximately one and one-half weeks later on D.S.'s request for an increase in child support.
The complaint filed against defendant alleged that he had committed the act of contempt*fn1 by purposely disobeying a final restraining order . . . by having verbal communication with the plaintiff [D.S.], specifically by pushing open the plaintiff's front door to her residence and yelling at her with profanity while showing her photographs, after being served with a copy of the FRO.
The trial court found that the State had not carried its burden of proof regarding the allegation that defendant had pushed open the front door to her residence. However, as to the allegation that defendant had violated the part of the FRO that prohibited harassing communications, the trial court stated:
[T]he State has carried its burden of proof as to the defendant's violating part one, sections three and four of the final restraining order and in the amended restraining orders by his actions in that. This Court finds the defendant's purpose with respect to the greeting card and photo in taking them with him from the car to pick up his son, was to communicate with and harass the victim, and he did, harass her by doing this. He was upset over a pending motion she had filed seeking an increase in child support. His actions were not just for purposes to pickup his son outside the victim's home as in the past. But to purposely engage, confront, and harass her. If this were not so, he would not have brought the folder with the card and the photo to the front door.
He stood in the front of her residence by his testimony with the door open. This photograph was clearly visible, it was made visible for purposes of harassment. As such I find him -- the State has proven its case beyond a reasonable doubt as to the violation set forth in the complaint. The defendant is found guilty. [Emphasis added.]
Defendant made a motion for a new trial, which was denied. In this appeal, defendant argues that the evidence was insufficient to support his conviction.
In reviewing the sufficiency of evidence before the trial court, we are bound by the findings of the court that are supported by adequate, substantial, and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Deference is also paid to the factual findings of a trial judge in the family court in recognition of the "'family courts' special jurisdiction and expertise in family matters[.]'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)); see also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Moreover, deference to a trial court's factual findings is even more appropriate "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2002)).
The trial court was presented with two conflicting versions of the events of April 12, 2010. Although the trial court did not make specific findings regarding credibility, it is evident from its findings that the court accepted D.S.'s version of the events. Because those findings are supported by adequate evidence in her testimony, we are only concerned with the question of whether the facts found are adequate to support a finding that defendant committed an act of contempt of a provision of the FRO.
To obtain a conviction for fourth-degree contempt, the State must prove (1) a domestic violence order was in place; (2) defendant purposely or knowingly violated its terms; and (3) defendant's conduct was a crime or a disorderly persons offense. State v. Chenique-Puey, 145 N.J. 334, 341-342 (1996). However, a conviction for a disorderly persons offense of contempt only requires proof of a knowing violation of a domestic violence order, without proof that the conduct complained of constituted a crime or disorderly persons offense. See State v. Finamore, 338 N.J. Super. 130, 138 (App. Div. 2001).
Although defendant was originally charged with fourth-degree contempt, the charge was amended to disorderly persons contempt. Accordingly, all that was required to sustain the conviction was that he knowingly violated a condition of the FRO. It is undisputed that a domestic violence order was in place and that defendant was aware of its terms, which included a prohibition against communications, and harassing communications in particular, with D.S.. Giving appropriate deference to the version of events accepted by the trial court, we are satisfied that the evidence was sufficient to establish that defendant knowingly violated the terms of the FRO.