On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-000973-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Yannotti and Kennedy.
Defendant, R.T., appeals from the final restraining order (FRO) entered against him on February 18, 2011, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The order barred him from having any contact with the plaintiff, A.T., and directed him to stay away from her home and her place of work. The FRO contained other provisions, as well. On appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED IN CONDUCTING A FINAL RESTRAINING ORDER HEARING ON THE BASIS OF THE NOVEMBER 27, 2009 AND SEPTEMBER 15, 2010 DOMESTIC VIOLENCE COMPLAINTS WHICH ARE FATALLY DEFECTIVE IN THAT THEY FAIL TO ALLEGE ANY SPECIFIC ACT THAT WOULD CONSTITUTE A PREDICATE ACT OF DOMESTIC VIOLENCE UNDER THE PREVENTION OF DOMESTIC VIOLENCE ACT . . .
THE TRIAL COURT ERRED IN GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT ON AN EX PARTE BASIS WITHOUT NOTICE TO DEFENDANT CONTRARY TO THE REQUIREMENTS OF RULE 4:9-1.
THE TRIAL COURT ERRED IN FAILING TO PROPERLY APPLY THE ANALYSIS
REQUIRED BY SILVER v. SILVER[*fn1 ] IN DECIDING PLAINTIFF'S COMPLAINT.
THE ALLEGED CONDUCT OF NOVEMBER 26, 2009 DOES NOT CONSTITUTE A PREDICATE ACT OF DOMESTIC VIOLENCE UNDER THE ACT.
THE ALLEGED CONDUCT RELATING TO THE GPS DEVICE DOES NOT CONSTITUTE A PREDICATE ACT OF DOMESTIC VIOLENCE UNDER THE ACT RELATIVE TO EITHER THE 2009 OR 2010 COMPLAINT.
A. THE ALLEGED USE OF THE GPS DEVICE DOES NOT CONSTITUTE STALKING UNDER N.J.S.A. 2C:12-10.
B. THE ALLEGED STALKING COULD NOT CONSTITUTE A PREDICATE ACT OF DOMESTIC VIOLENCE AS IT WAS A PAST OCCURRENCE THAT COULD ONLY BE CHARACTERIZED AS AN ALLEGED PRIOR HISTORY OF DOMESTIC VIOLENCE.
THE TRIAL COURT ERRED IN RELYING ON DIRECT AND EXRAJUDICIAL PRIOR KNOWLEDGE AND EXPERIENCE IN ASSESSING THE CREDIBILITY OF A MATERIAL WITNESS.
For the reasons that follow, we affirm.
Plaintiff, A.T., and defendant, R.T., were married on July 25, 2005. They had one child, T.T., born on September 11, 2007. On November 27, 2009, A.T. went to the Rumson Police Department and, with its assistance, completed a New Jersey Domestic Violence Civil Complaint. The complaint alleged that an incident occurred on November 26, 2009, (Thanksgiving Day) but did not provide any detail and none of the boxes referring to the criminal offenses identified in the PDVA were checked. In the section for prior history, the complaint noted, "plaintiff feels threatened by defendant and is in fear for her and her child's safety, all incidents have occurred at [the parties' home]. No charges have been filed during any of these incidents."
Although the document constituting the complaint provided no detail, an accompanying "Voluntary Statement" prepared by A.T. at the same time did provide such detail. In the statement, A.T. indicated that she felt she had "no choice but to leave [her] husband and residence for [her own] safety and [her] two-year old daughter's safety." She explained that "things have been escalating over the past year" and that her husband was "verbally abusive" and made "inappropriate sexual comments" to their daughter. She alleged that her husband accused her of telling other people that he was a "child molester" and a "pedophile" and that she "never said anything of that sort" and such conduct was "really sick and disgusting." She noted that she had found a global positioning system (GPS) locator on her car, which R.T. used to monitor her "location and phone call history." She added that his behavior was not "rational or normal."
With regard to Thanksgiving Day, A.T. indicated that R.T. called the Freehold Township Police to "try to have [her] family removed from [their] house during Thanksgiving dinner and was making insults to everyone at the table and upset all of the children that were present." She explained that she did not "feel comfortable living in this environment anymore and it is not healthy for [her] daughter to be exposed to that." She said she would supplement the statement "at a later date."
Three days later, on November 30, 2009, A.T. provided a second statement to the Rumson Police Department consisting of five pages. The second statement recounted the events that occurred on Thanksgiving Day involving R.T. and A.T.'s family whom she had invited to her house for dinner. The statement concluded with a claim that, in front of their child, R.T. called A.T. a "white trash whore who brings STDs from her black lesbian friends to her family." A.T. added that R.T. poked his finger between her legs in front of their child and said, "What? Its nothing that she [T.T.] hasn't seen your friends do to you."
The statement also memorialized a prior incident when R.T. "pushed me in public at a summer children's camp and said don't you ever leave the room without me again. I'm not paying for your car payments anymore." A.T. added that R.T. made a gesture taking his hands to her neck as if to strangle her while holding their child because, apparently, R.T. did not agree with A.T.'s bedtime routine for their child.
A temporary restraining order (TRO) was issued on November 27, 2009 and a final hearing was ordered for December 1, 2009. However, that hearing was postponed, apparently upon the mutual agreement of the parties, in view of A.T.'s subsequent filing of a divorce complaint in the Family Part of Monmouth County. In a certification submitted as part of the matrimonial proceeding, A.T. explained that, "the TRO was assigned to the inactive list as requested by [R.T.'s] attorney in the matrimonial action, Mr. Abrams, pending the resolution of a criminal action in municipal court." While the certification does not identify the referenced "criminal action," a criminal complaint had been filed in the Freehold Township Municipal Court by R.T. against A.T.'s stepfather as a consequence of incidents which allegedly occurred on Thanksgiving Day. A.T.'s certification added that on August 18, 2010, R.T.'s counsel notified the court that "the criminal matter was resolved and that the domestic violence trial should be reassigned to the active list."
On September 15, 2010, A.T. filed an amended Domestic Violence Complaint against R.T. and again alleged the incident that occurred on November 26, 2009, but this time noted that the incident constituted "harassment" and "stalking." A.T. attached a two-page addendum to the September 15, ...