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A.T v. R.T

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 30, 2012

A.T., PLAINTIFF-RESPONDENT,
v.
R.T., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-000973-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 9, 2011

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:

POINT I

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 . . .

POINT II

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.

POINT III

THE TRIAL COURT ERRED IN FAILING TO PROPERLY APPLY THE ANALYSIS

REQUIRED BY SILVER v. SILVER[*fn1 ] IN DECIDING PLAINTIFF'S COMPLAINT.

POINT IV

THE ALLEGED CONDUCT OF NOVEMBER 26, 2009 DOES NOT CONSTITUTE A PREDICATE ACT OF DOMESTIC VIOLENCE UNDER THE ACT.

POINT V

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.

POINT VI

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.

I

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, 2010, amended Domestic Violence Civil Complaint, which reads as follows:

The undersigned complains that said defendant did endanger plaintiff's life, health or well being (give specific facts regarding acts or threats of abuse and the date(s) and time(s)they occurred; specify any weapons); [continued from page 1]

1.Any Prior History of Domestic Violence Reported or Unreported? If yes explain: [Continued from Page 1]

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. ****AMENDED PRIOR INCIDENTS**** REPEATEDLY HARASSED PLA BY TELLING HER IT WAS HER FAULT HER FATHER LEFT HER WHEN SHE WAS 9. QUESTIONED PLA EXTENSIVELY & HARASSED HER ABOUT PRIOR RELATIONSHIPS/BOYFRIENDS. DEF WOULD THEN RESEARCH THEM & TOLD PLA HE HIRED A PRIVATE INVESTIGATOR. DEF WOULD HARASS PLA IN A VULGAR MANNER.

HARASSED PLA THROUGHOUT HER PREGNANCY & AT THE HOSPITAL ABOUT THE PATERNITY OF THEIR CHILD. DEF ALSO QUESTIONED PATERNITY IN FRONT OF THEIR CHILD.

DEF ABUSED HIS POSITION AT HIS JOB TO GET A COPY OF HER PAST MARRIAGE CERTIFICATE. DEF ALSO PULLED INFORMATION ON PLA'S FATHER. 6/17/09 DEF PHYSICALLY RESTRAINED PLA FROM GOING TO THEIR DAUGHER, TAUNTING PLA TO CALL 911 WHILE HE HELD HER.

REPEATEDLY VERBALLY ABUSED PLA, THEN 10 MINUES LATER, WOULD ASK PLA IF SHE WANTED TO WORK ON A BROTHER OR SISTER FOR THEIR CHILD.

REPEATEDLY ACCUSED PLA OF HAVING AFFAIRS W/FRIENDS, NEIGHBORS, CO-WORKERS, AND FAMILY MEMBERS (MALE & FEMALE). DEF WOULD ALSO DO THIS IN FRONT OF THEIR CHILD.

SPRING 2009, DEF THREATENED TO CALL POLICE & REPORT THEIR DAUGHTER AS BEING KIDNAPPED.

DEF WOULD REPEATEDLY REINFORCE THAT IT WAS HIS HOUSE, HIS MONEY, HIS WIFE, AND HIS DAUGHTER. SEPT 2009 WHILE AT FARMER'S MARKET, DEF GRABBED PLA FROM BEHIND & TOLD HER SHE'D BETTER GET IN THE CAR. DEF WAS VERBALLY ABUSIVE AND THREATENING SERIOUS CONSEQUENCES IN HER LIFE.

DEF WOULDN'T LET PLA OUT OF HOUSE WITH THEIR DAUGHTER WHEN HE WAS THERE.

SUMMER 2009 PLA LEFT WITH THEIR DAUGHTER. DEF FOLLOWED THEM & SAT OUTSIDE A WOMEN'S LOUNGE PLA WENT TO, & SAT WAITING 2 HOURS FOR HER TO COME BACK OUT.

DEF WOULD FOLLOW ALONGSIDE PLA IN HIS CAR WHILE SHE WALKED IN THE NEIGHBORHOOD OR TO/FROM PARK WITH THEIR CHILD.

DEF WOULD COME IN WHILE PLA WAS SLEEPING & STAND OVER HER, WATCHING HER.

DEF WOULD STAND OUTSIDE THEIR KITCHEN WINDOW AT NIGHT WATCHING HER & SCARE HER BY KNOCKING ON THE WINDOW.

DEF REPEATEDLY TRIED TO TAKE NUDE PICTURES OF PLA WITH HIS PHONE WHILE SHE WAS CHANGING. CONSTANTLY DEGRADED PLA, TELLING HER SHE NEEDED TO GET A JOB DANCING ON A POLE.

REPEATEDLY TOLD PLA HE'D MAKE SURE THEIR DAUGHTER HATED HER.

WOULD TELL PLA HE'D KILL HER BEFORE HE LET HER TAKE THEIR CHILD FROM HIM.

REPEATEDLY TOLD CHILD HE'D TELL HER ALL ABOUT HOW YOUR MOTHER ALLOWED YOU TO BE MOLESTED.

WOULD TRY TO TEACH DAUGHTER TO SAY "I NEED SEX" REGULARLY CHECKED PLA'S CALL HISTORY & TEXT MESSAGES WHILE SHE WAS SLEEPING, AND HARASSED HER ABOUT THEM THE FOLLOWING DAY.

WOULD NOT ALLOW PLA TO BUY ANYTHING UNLESS HE WAS PRESENT (INCLUDING GAS FOR THE CAR). PLA WOULD HAVE TO BEG DEF TO PURCHASE ANYTHING.

The Family Part judge granted a TRO on September 15, 2010, and set a hearing date for September 27, 2010. The amended complaint and TRO were served upon R.T. on September 15, 2010.

Trial commenced on October 19, 2010 and was thereafter continued on February 1, 9, 10, 14, 17 and 18, 2011. On the first day of trial, defense counsel for the first time moved to strike the amended complaint alleging, "there is no provision in the statute for an amended complaint that I could find . . . ." The trial court denied the application noting that the amended complaint had been filed and served in September 2010 and that the defense was "afforded enough opportunity" to meet its allegations. The court added that oftentimes an individual prepares a Domestic Violence Complaint without the assistance of counsel, and that "it would be in the interest of justice for this court to allow full testimony." Counsel for R.T. at one point agreed that the "plaintiff does have a right to amend her complaint" and that his argument was not based upon any due process considerations.

R.T.'s counsel also moved to restrict evidence on the GPS stalking complaint, to events that occurred at the parties' home. The trial judge indicated that it would be inappropriate to rule upon the motion without hearing proffered testimony and that, in any event, if there were testimony that counsel believed to be objectionable, counsel could "renew [his] motion at that time." Counsel for R.T. replied "I will do so, Your Honor."

On February 1, 2011, defense counsel renewed his motion to dismiss the September 15, 2010 amended complaint. Defense counsel argued that "this amended complaint was not filed in accordance with the rules of the court." Again, the court denied the motion noting that "there has been plenty of time to review the complaint and to prepare for any defense to that complaint." The court added that if defense counsel "needed an opportunity to prepare a defense for something specific here let me know about it." The court also explained that it would "afford [defense counsel] any accommodation appropriate and necessary" pertaining to any application for an adjournment to meet issues that defendant claimed were a surprise.

On February 18, 2011, the trial judge placed her findings of fact and conclusions of law on the record and granted a final restraining order against R.T. The judge explained at the outset of an oral opinion comprising eighty pages of transcript, that "plaintiff has met her burden in this case and . . . the court does find that she has demonstrated that she has a predicate act." The judge also found that "based on that predicate act and . . . in light of . . . the prior history between the parties the second prong of Silver [is] obviously satisfied." The judge explained further that she found plaintiff credible and consequently, "I find that her testimony . . . to be credible and correct and true."

With respect to the alleged incident at the summer camp set forth in the amended complaint, the court found, that the July 4th weekend at the resort that they were all there, there was a group of them, they were staying for a week, the [parties] were in the main house and in front of the main house one morning, [plaintiff's mother] saw her daughter, the plaintiff, bring the baby out of the building and then saw [R.T.] come up behind her and push her . . . she heard him yell, do not ever leave the room without me, you white trash whore. And I am satisfied that he yelled this out in a public place where there were many people around, as described by the plaintiff, including many young children, including his own child.

I'm satisfied that this incident was so significant that it did cause [A.T.] to be visibly upset and shaking. I'm quite satisfied that incident happened.

With regard to the incidents of verbal abuse alleged in the complaint, the trial judge "found credible that [R.T.] is accusing everybody of being a child molester." She also found that R.T. "exploded at her. Hopes that [plaintiff's mother] dies in a car crash, spitting on her grave, will know the truth [that the plaintiff's mother's] pedophile boyfriend molested [the child]."

R.T.'s counsel claimed that the Thanksgiving incident was "overblown" because A.T. did not tell police she was in any danger when they responded to the family home. The judge rejected this argument and explained, "the answer was that she didn't find an appropriate place or time or maybe that wasn't the day she was thinking that she was going to cause a scene, where she was going to say in the middle of Thanksgiving, after bringing her family over, oh, by the way I need a restraining order. I don't think that was in her mind that day." The judge also noted that she found that R.T. had been "berating" A.T. extensively and that he said "cruel things" about her relatives. She added, "there is nothing in the testimony of [A.T.] or in anything about her that I have seen or in any of the witnesses that she's presented that tells me anything other than that she is wholly credible."

The court also found that R.T. "put a device in [A.T.'s] car to find out where she was going and did not tell her . . . she would have been a party to it." She added that "any reasonable person would be fearful . . . in this situation." She also explained that she was satisfied that A.T. had "extreme concerns" about the language and cruel statements utilized by R.T. in front of their child.

The judge stated:

I am satisfied that [R.T.'s] conduct was inappropriate, harassing and frightening.

I do find that the plaintiff is fearful and that the statements he said, the different things, different times, repeated, the theme about child molestation and all of that coming back would disturb anybody. And I'm satisfied that it happened and I'm satisfied it caused fear . . . I'm satisfied that you were shoved and screamed at in a public place, which is an offensive touching under the statute. I'm satisfied that that occurred.

She added, "So, I do find that all of those matters happened and as a result of all of that and as a result of the court's satisfaction that he triggered that device on the 30th of November, which is the court's finding, as well as just the whole course of alarming conduct that was increasing, and this was without having heard anything, I am wholly satisfied that the second prong of Silver has been met and that the plaintiff needs this restraining order to protect her from any immediate danger and prevent further abuse." On this basis, the court entered its final order.

II

As noted earlier, R.T. contends on appeal that the trial court erred in conducting a final restraining order hearing on the basis of the 2009 and 2010 Domestic Violence Complaints because they failed to allege any specific act that would constitute a predicate act of domestic violence and because the trial court improperly allowed A.T. to file an amended complaint on an ex parte basis. While it is true that A.T.'s Domestic Violence Complaints were not models of clarity or precision, we nonetheless find that defendant was certainly on notice that plaintiff was seeking a final restraining order based upon defendant's conduct on Thanksgiving Day 2009, the incident at summer camp, and defendant's clandestine tracking of plaintiff's whereabouts through the use of a GPS device. This specific allegation was set forth in the statement given by A.T. to police on the very day the domestic violence complaint was filed. That statement also set forth in great detail the incident in which R.T. was alleged to have verbally abused and threatened A.T.

Further, in her written statement on November 30, 2009, A.T. alleged in detail the events giving rise to the Thanksgiving event and also noted specifically, "[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." Accordingly, defendant can hardly have been surprised by this testimony and in any event never sought a continuance to address it.

We recognize that ordinary due process protections apply in the domestic violence context. H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003). "At a minimum, due process requires that a party in a judicial hearing receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" Ibid. (quoting McKeown Brand v. Trumph Castle Hotel and Casino, 132 N.J. 546, 559 (1993)). In L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999), we explained that "it is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint."

However, in J.D. v. M.D.F., 207 N.J. 458, 479-80 (2011), the Supreme Court observed:

Plaintiffs seeking protection under the [PDVA] often file complaints that reveal limited information about the prior history between the parties, only to expand upon that history of prior disputes when appearing in open court. And it is frequently the case that the trial court will attempt to illicit a fuller picture of the circumstances either to comply with the statutory command to consider the previous history, if any, of domestic violence, see N.J.S.A. 2C:25-29(a)(1) or to be certain of the relevant facts that may give content to otherwise ambiguous communication or behavior . . . ensuring that defendants are not deprived of their due process rights requires the trial courts to recognize both what those rights are and how they can be protected consistent with the protected goals of the act. To begin with, trial courts should use the allegations set forth in the complaint to guide their questions of plaintiffs, avoiding the sort of questions that induce plaintiff in this appeal to abandon the history revealed in the complaint in favor of entirely new accusations. That does not mean that trial courts must limit plaintiffs to the precise prior history revealed in the complaint, because the testimony might reveal that there are additional prior events that are significant to the court's evaluation, particularly if the events are ambiguous. Rather, the court must recognize that if it allows that history to be expanded, it has permitted an amendment to the complaint and must proceed accordingly.

The Court added that some defendants know the history that the plaintiff recites and some parties will be well prepared regardless of whether the testimony technically expands upon the allegations of the complaint. Id. at 480. Some others will not and, "[i]n all cases the trial court must ensure that the defendant is afforded an adequate opportunity to be apprised of those allegations and to prepare." Ibid.

J.D. teaches that if the trial court permits a plaintiff to amend a complaint, the court should also liberally grant adjournments requested by the defense in order to meet those allegations. In the present case, defendant at no time claimed he was misled by the allegations of the complaints filed by plaintiff and at no time sought an adjournment in order to meet those allegations. Indeed, defendant does not even at this late date allege that had he been accorded an adjournment, he would have adduced additional evidence to rebut the allegations presented during the five days of hearings that took place over the course of almost five months.

R.T.'s attorney understood that plaintiff was seeking a restraining order based, among other things, upon his client's use of the GPS. During the course of his arguments to the court on October 19, 2010, R.T.'s counsel argued:

One of plaintiff's allegations here, although it's not in her complaint, it's not even in her history as far as I could see, even in the amended complaint, is the issue of a GPS, that my client placed a GPS in the defendant's automobile in the back seat next to the infant, their child. And . . . and her allegation is stalking. That is not mentioned in the . . . in the complaint.

And, obviously, I can't imagine a GPS would have occurred at [the parties' home]. . . .

[A]lthough stalking is . . . is checked in the amended, its certainly not in the original.

Clearly, defendant's counsel knew the allegations and was prepared to meet them and, in fact, did present testimony during the course of the trial to address the allegations of stalking.

Accordingly, we reject the defendant's claim that the court erred in granting plaintiff leave to file an amended complaint and we find, further, that the allegations of domestic violence set forth in the November 27, 2009, and the September 15, 2010, complaints were not fatally defective for failure to allege specific acts.

Defendant also claims that the trial court did not properly apply the two-pronged analysis for determining whether a plaintiff has met the burden for an FRO which we adopted in Silver v. Silver, supra, 387 N.J. Super. at 112. Under the first prong,

[T]he 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:25-19(a) had occurred. In performing that function, "The act does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.'" Stated differently, when determining whether a restraining order should be issued based on an act of assault or, for that matter, any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence and whether there exists an immediate danger to the persons or properties. [Id. at 25 (citations omitted).]

Among the fourteen predicate acts listed in the statute are "stalking" and "harassment." N.J.S.A. 2C:25-19(a).

If the court finds a predicate act, then the second prong must be addressed in order for plaintiff to obtain a FRO:

[T]his second inquiry . . . begins after the plaintiff has established, by a preponderance of the evidence, the commission of one of the enumerated predicate acts "upon a person protected under this act by an adult or an emancipated minor[.]" Although this second determination - whether a domestic violence restraining order should be issued - most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, and upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a) (1) to -29(a)(6) to protect the victim from an immediate danger or to prevent further abuse. [Silver, supra, 387 N.J. Super. at 127 (citations omitted).]

Thus, in considering whether the second prong had been met, a judge should consider the following factors:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to a person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interest of the victim and any child;

(5) In determining custody and parenting time, the protection of the victim's safety;

(6) The existence of a verifiable order of protection from another jurisdiction. [N.J.S.A. 2C:25-29(a).]

Here, the trial court's findings met both prongs of Silver.

Recognizing that N.J.S.A. 2C:33-4 defines harassment as "subjecting another to striking, kicking, shoving or other offensive touching, or threatening to do so," the trial judge ruled that "I'm satisfied that you were shoved and screamed at in a public place, which is an offensive touching under the statute." As to stalking as a predicate act, the court ruling extensively discussed that the plaintiff was being tracked with a GPS locator installed and maintained by the defendant.

N.J.S.A. 2C:12-10(a)(1) defines a "course of conduct" necessary to constitute "stalking" to include, among other things, "directly, indirectly, or . . . by any action, method or device, or means, following, monitoring, observing, surveilling . . . a person[.]" Here, the G.P.S. device was placed in A.T.'s car and thus R.T.'s "conduct" was clearly "directed at" her. N.J.S.A. 2C:12-10(b). A.T. testified this conduct caused her fear and distress.

With respect to the second Silver prong, the trial judge did not overtly examine the N.J.S.A. 2C:25-29(a) factors. However, the trial judge's lengthy decision is replete with findings that demonstrate a previous history of domestic violence between the plaintiff and defendant including threats, harassment and physical abuse and "the existence of immediate danger to person or property" of the plaintiff. N.J.S.A. 2C:25-29(a). Consequently, the trial judge's conclusion that the second prong of Silver had been met is wholly supported by her findings on the record.

We note that our scope of review in such circumstances is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Rova Farms v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). A trial court's findings of fact should be upheld if they are supported by "adequate, substantial and credible" evidence. Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Rova Farms, supra, 65 N.J. at 484). Because a trial court "hears the case, sees and observes the witnesses, [and] hears them testify," it has a better perspective than a reviewing court in evaluating the veracity of witnesses. Pascale, supra, 113 N.J. at 33 (quoting Gallo v. Gallo, 66 N.J. Super. 1-5 (App. Div. 1961)). We should be especially reluctant to disturb a family judge's factfinding. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court's factfinding." Cesare, supra, 154 N.J. at 413. On the other hand, we owe no special deference to a trial court's legal interpretation of a statute, or the legal consequences that flow from established facts. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Applying this standard of review, we find no error in the court's application of the law and conclude that the court's factfindings were adequately supported by the record.

Finally, R.T. asserts that "the trial court erred in relying on direct and extra-judicial prior knowledge and experience in assessing the credibility of a material witness." As a result of that error, defendant urges that the case should be remanded.

R.T.'s argument is predicated upon the trial judge's assessment of Detective Rette's testimony on behalf of plaintiff. In finding Detective Rette "very credible" the trial judge indicated:

I worked with Detective Rette for many, many years . . . [a]lmost two decades . . . I've interacted with him. Not on a personal level except unless it was a work function type of thing . . . but no personal relationship. But, I certainly worked for him and I was the town prosecutor for many years when he worked there. And, I point that out because I think its appropriate to put it on the record, but also to say . . . he's extremely professional . . . . [S]o I'm very comfortable with his testimony here and I do not feel in any way that I should not be listening to his testimony in these proceedings because of our prior working relationship. Again, that only just told me that he is a very serious-minded professional who, by the way, has since retired and [so] his testimony [has] satisfied the court as to everything he told me.

These comments notwithstanding, we observe that Detective Rette's testimony had a minimal impact on the case. In large part, his only material testimony related to describing where the GPS was located in plaintiff's car, providing a record of defendant's use of the device as recorded by the company providing the GPS tracking device and describing how the device works. None of this testimony was disputed by defendant.

Defendant testified that he placed the GPS device in plaintiff's car in the spot where Rette testified to finding the device, and he acknowledged that he used it to track the whereabouts of the vehicle (although he claimed he was concerned with the location of his daughter). Furthermore, he did not contest the accuracy of the records detailing when the device sent him a message with the car's location; rather, he claimed that the device would sometimes automatically send GPS data and consequently the records did not reflect the number of times he actually received information about the location of the vehicle.

While it was error for the trial judge to evaluate the testimony of a witness she knew on the basis of her personal experience, the error was not "clearly capable of producing an unjust result." R. 2:10-2. The overall impact of the error did not affect the fairness of the proceedings. State v. R.D., 169 N.J. 551, 559 (2001). In determining whether a new trial must be granted in such circumstances, a court must consider the "gravity of the extraneous information in relation to the case, the demeanor and credibility of the [factfinders] who are exposed to the extraneous information and the overall impact of the matter on the fairness of the proceedings." Ibid. Defendant essentially conceded all of Rette's factual testimony. Accordingly, a new trial should not be granted because the error was not harmful. R. 2:10-2.

Affirmed.


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