March 9, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-000466-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2011
Before Judges Espinosa and Kennedy.
Defendant appeals from a final restraining order entered against him under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant's estranged wife obtained the order after the trial court found defendant committed an act of harassment against her. See N.J.S.A. 2C:33- 4 (defining harassment); N.J.S.A. 2C:25-19 (defining harassment as an act of domestic violence).
Defendant contends that the trial court erred by "admitting . . . testimony about . . . firearms" despite the fact that firearms were not mentioned in the complaint. Defendant further contends that the acts testified to by his estranged wife do not constitute harassment. Defendant also challenges the court's denial of a subsequent motion to vacate the final restraining order. For reasons stated hereinafter, we affirm.
On August 16, 2010, N.F. filed a domestic violence civil complaint against E.F. alleging that she was harassed and assaulted by him on August 15, 2010. N.F. claimed that, on that date, E.F. filled garbage bags with her clothing and threw them down the stairs hitting her in the shoulder with one of the bags. In the section of the complaint dealing with prior history, N.F. claimed that defendant called her degrading names and made her feel "inferior." In an addendum to the complaint, N.F. noted that after she left the marital home that evening, E.F. sent her a series of text messages in which he derided and scoffed at her, again calling her a degrading name. She added also that E.F.'s behavior had become "erratic [and] irresponsible for the past few months since she asked him for a divorce." She noted also that the defendant has been "violent with her" in the past, forcing her to have sex with him and breaking a telephone and a television set. On the bases of the allegations of the complaint, the trial court entered a temporary restraining order and set a date for a hearing on a final restraining order for August 23, 2010. E.F. appeared on that date in court accompanied by counsel.
We discern the following facts from the record made during the hearing on the final restraining order. N.F. and E.F. married on April 25, 1998, and had one child of their union, C.F., born in 1999. At some point in 2010 the parties began "having marital issues" and N.F. told E.F. that she wanted a divorce. She requested that he leave the marital home at that point but he elected not to leave. After N.F. asked for a divorce, she found E.F.'s conduct to escalate from "being nasty and rude to harassment and assault basically." In characterizing the escalation of his alleged erratic behavior, N.F. said:
It started with his rifles being left out in the open. I found them laying on the table one day in the basement where my daughter goes to play video games. And I don't know anything about guns. So I called my brother-in-law to come over just to make sure that it wasn't loaded or whatever, it was locked. And if he would put it away some place.
Thereafter, the trial judge asked if E.F.'s guns had been kept in a locked gun case prior to that incident and N.F. responded that "they were not kept in my sight. I don't know exactly where he kept them. But I just know that they were never lying on the table like that. That scared me. I felt like I was being intimidated by that."
N.F. testified that on August 15, 2010, she returned to the marital home and went upstairs to the bedroom to ask E.F. a question when E.F. told her to get the "F" out and he was obviously angry.
He started packing all my clothes in gigantic garbage bags out of our closet. Everything. And started throwing them down the stairs. And they were very big bags, very heavy. And one of them hit me in the shoulder as he threw it down the stairs.
After throwing the bags of her clothes to the bottom of the stairs, E.F. took all the bags outside and placed them by the curb.
N.F. at this point called the police. On their advice, she left the marital home and thereafter filed a domestic violence civil complaint. That evening, E.F. sent her a series of text messages essentially scoffing at her, calling her names and saying at one point "mission accomplished."
With respect to prior incidents between the parties, N.F. testified that five or six years previously, E.F. "had forcible sex" with her but that there had never been any instance of a physical assault. She added that he threw a phone and it made a hole in the wall approximately five or six years earlier and that he broke a television set five or six years earlier, as well. She added that he would routinely call her a "tramp and a bitch."
When the trial judge inquired when it was that she first noticed a weapon being left out in the house, N.F. responded "a couple of weeks ago that's all I kept thinking about is the fact that those guns are in the house and I'm afraid for my safety and the safety of my kids at this point."
E.F. also testified at the hearing and was asked by his counsel, "Were there two rifles in the home?" and E.F. responded, "Yes." He then asked "there was testimony by your wife about them being out in the open in the basement. Can you address your care of the rifles?" E.F. responded in part that, there's one shotgun, two rifles and one pellet gun. The pellet gun has been on the finished side of the basement leaning against the wall for about a year. The rifle I took out recently because - actually [N.F.] and I discussed going to the shooting range in Belleville so I could teach her how to shoot it.
He added that he took the rifle out of its container to "re-familiarize myself with it."
E.F. said that he bundled plaintiff's clothing into garbage bags and tossed them out of the room because she would regularly enter the room after he had been asleep and awaken him. He denied throwing any bag at N.F. and indicated, further, that he had damaged the phone ten years ago when the phone began to falter as he was speaking with his "dying father who could barely hear me." He added that the breaking of the television was inadvertent. He also explained that he dragged the bags of clothing out to the curb because he was "so angry."
Following the testimony, the trial judge found that E.F. had committed an act of harassment and entered a final restraining order on that basis. The trial judge made a specific finding that there was no assault, however. The trial judge explained that E.F. was obviously under "stress and distress" about the demise of his marriage and that such stress caused him to "los[e] his ability to restrain himself and behave in a responsible and careful way." She added that she found that E.F. filled up . . . six or seven bags and dragged them out to the curb. And [N.F.'s] wedding dress was out there and that wasn't something that [E.F.] thought she was going to be needing in the next couple of days so [E.F.] didn't want her coming into the room to get it. It was just an explosion of all the pent up anger and distress. The text messages were out of control and over the top and showed that E.F. just lost all perspective and lost self-control entirely.
With respect to the weapon, the trial judge made a finding that E.F.'s explanation of why the weapon was left out was not credible. She added that E.F. "took the gun out in an attempt to make [N.F.] feel intimidated and threatened."
Moreover, the trial judge found that E.F. admitted that he "[had] been monitoring [N.F.'s] spending, her emails [and] her text messages." E.F. "[would] check her phone, . . . check her email account . . . look at the credit card statements." The judge added that such testimony which E.F. had brought up on his own during the course of his testimony, "fits a pattern of control in domestic violence."
The judge explained, further:
So, I'm finding that you did commit harassment within the meaning of 2C:33-4A and that you made communications in offensively coarse language or another manner likely to cause annoyance or alarm. And C, that you engaged in a course of alarming conduct with the purpose to alarm or seriously annoy the other person.
And in light of the escalation of issues just in the recent few months without regard to whether the past incidents of domestic violence testified to by the plaintiff did or did not occur, I find that it is a volatile and dangerous situation and that it would be negligent of me to deny the restraining order and put you two back into that environment where I think a disaster awaits.
Thereafter, the court entered an F.R.O.
E.F. filed a motion to vacate the F.R.O. contending, among other things, that the court should not have considered testimony with respect to his weapons. The trial judge denied that motion and in a written addendum to her order noted that "defendant was represented by counsel" and that N.F. testified that her fear of E.F. was heightened because there were guns in the house. She explained that the complaint indicated that there was a "history of domestic violence" and that N.F. testified that E.F. started leaving his guns out in areas where she and her daughter would see them, which he had never done before, which she cited as an example of how his behavior had become "erratic" and "irresponsible" as alleged in the complaint. She also testified that she felt intimidated by the recent weapons display.
The judge added that she did not find that the incident concerning weapons "constituted an act of domestic violence." The judge, however, did consider N.F.'s testimony in assessing "the reasonableness of her fear and the necessity of the entry of the final restraining order." She concluded by noting that defendant specifically addressed the issue of weapons with his counsel and that the court found the testimony to be not credible.
We turn first to E.F.'s contention that the trial judge should not have admitted testimony concerning his weapons because it was not contained within the initial domestic violence civil complaint. Testimony about the weapons was not specifically elicited by a direct question but rather arose when N.F. brought it up on her own in response to a question that did not reference weapons. There was no objection from defendant's counsel and there were no questions posed to N.F. about the weapons on cross-examination.
Moreover, E.F. himself testified at length with respect to his weapons and the reason that one of his weapons was left out in the cellar. Accordingly, E.F. could hardly have been surprised by the testimony about weapons, specifically addressed the issue during his own testimony and, in any event, never sought a continuance to adduce additional evidence on the subject.
We recognize that ordinary due process protections apply in the domestic violence context. H.D.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. Trump 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 elicit 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 communications 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 . . . goals of the act. To begin with, trial courts should use the allegations set forth in the complaint to guide their questions of plaintiffs, . . . . 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 had 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, E.F. at no time claimed he was misled by the allegations of the complaint and at no time sought an adjournment to meet the testimony of N.F. Moreover, the trial judge did not base her finding of harassment on the testimony about weapons but rather viewed it in the context of the escalating adverse relationship between the parties. Accordingly, no objection having been raised at trial and E.F. having responded to and addressed the factual issues pertaining to the weapons testimony, E.F.'s challenge to such testimony is without merit.
We now turn to the question of whether the acts complained of constitute harassment. Our scope of review of the trial judge's factfinding is, of course, 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 judge'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 (1998)(quoting Rova Farms, supra, 65 N.J. 484). Because a trial judge "'[h]ears 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 (1961)). We are especially reluctant to disturb a Family Part judge's factfinding. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court 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. Committee, 140 N.J. 366, 378 (1995).
Essentially, E.F. challenges both the trial judge's findings of a predicate act and the need for a final restraining order. E.F. contends that the conduct complained of is merely a type of verbal exchange that courts in the past have found not to rise to the level of domestic violence. Our Supreme Court recently stated that a trial court must exercise care in distinguishing between ordinary disputes and irritations common in a domestic relationship and those actions that cross the line into domestic violence. J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011). Similarly, in L.M.F. v. J.A.F., 421 N.J. Super. 523 (App. Div. 2011), we reversed a finding of harassment when the trial judge failed to find that the defendant's former spouse had a purpose to harass. Id. at 534-36. Defendant repeatedly texted his former wife in order to obtain information about their daughter's welfare and academic performance. Ibid.
Although, here, the court did not specify the subsection of the harassment statute the defendant violated, the court apparently relied upon subsections (a) and (c) of N.J.S.A. 2C:33-4:
[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 offensively course language, or any other manner likely to cause annoyance or alarm; . . . .
c. engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
The statute requires proof of a "purpose to harass" whether the case involves harassment under subsection (a) or (c).
In this case, the trial judge expressly found that E.F.'s purpose was to harass when, on August 15, 2010, he gathered N.F.'s clothing, stuffed it into garbage bags, threw them down the stairs and brought them outside where he left them at the curb. She also found that E.F.'s derisive and mocking text messages on the evening of the event constituted conduct that was "out of control and over the top." She also found that E.F. admitted, during the course of his testimony, that he had been monitoring her spending, emails, text messages, email account and telephone. She found that such conduct "fits a pattern of control in domestic violence." She added that these actions, when viewed "in light of the escalation of issues just in the recent few months," supported a conclusion that the parties were in a "volatile and dangerous situation" necessitating a final restraining order. Thus, we are not persuaded by defendant's arguments that J.D., supra, and L.M.F., supra, require reversal.
The trial judge carefully engaged in the delicate task of "[d]rawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall, instead, in the category of 'ordinary domestic contretemps.'" J.D., supra, 207 N.J. at 475 (quoting Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995)). The court considered prior acts of the defendant consisting of verbal abuse and escalating volatile behavior. The trial judge's findings respecting those prior acts were adequately supported by the record.
Turning to the text messages, we are mindful that subsection (a) of N.J.S.A. 2C:33-4 is generally focused on the mode of the speech employed and not a statement's content. State v. Hoffman, 149 N.J. 564, 583-84 (1997). However, the defendant's text messages were sent at an utterly inconvenient hour, and were couched in coarse and abusive language. The text messages, coming as they did, late at night and viewed in the context of the defendant's prior conduct toward the plaintiff, were likely to cause N.F. annoyance. Pazienza v. Camarata, 381 N.J. Super. 173, 183-84 (App. Div. 2005).
Regarding harassment in subsection (c), the evidence in the record supported a finding that defendant engaged in a course of alarming conduct for the purpose to alarm. Thus, it was harassment under subsection (c), for E.F. to have gathered N.F.'s clothing into garbage bags and then leave the bags at the curb where one would ordinarily leave garbage. A course of conduct under (c) does not require any minimal amount of time, duration or separate components. State v. J.T., 294 N.J. Super. 540, 545 (App. Div. 1996).
We find no error in the judge's determination that a restraining order was necessary to protect the plaintiff. The judge properly engaged in a separate inquiry regarding the need for restraints. See Silver v. Silver, 387 N.J. Super. 112, 126-28 (App. Div. 2006) requiring the court, after finding the commission of the predicate act of domestic violence, to make an inquiry whether a restraining order is necessary to protect the victim from immediate danger or to prevent further abuse based upon the evaluation of the facts set forth in N.J.S.A. 2C:25-29(a)(1) to (6). The judge's findings here were not conclusory. The judge relied upon the history of conduct between the parties, identifying specific instances of volatile conduct, and noting that E.F.'s inability to control himself and his insistence that his behavior was justified, made it likely that he would repeat his harassing behavior.
Finally, we find no error in the court's finding that E.F. committed a predicate act of domestic violence and a final restraining order was needed to protect N.F. from future acts of domestic violence.
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