April 10, 2012
J.T., JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-000339-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 26, 2012 -
Before Judges A. A. Rodriguez and Sabatino.
Defendant J.T., Jr., appeals a final restraining order ("FRO") issued against him in favor of his wife, plaintiff J.T., after a trial in the Family Part on September 30, 2010. Defendant contends in his brief that the trial court failed to give adequate reasons for its ruling, and that the FRO is not supported by sufficient credible evidence. We affirm.
When the FRO was issued, the parties were married but had been separated since February 2010. They have two minor sons. According to the testimony of both parties, divorce proceedings were pending in Pennsylvania at the time of the FRO trial, and they still owned a marital residence in that state.*fn1 Defendant was by that point residing in New Jersey, as was his own mother. The parties made certain arrangements to alternate parenting time with their children, although those arrangements apparently were the subject of ongoing disagreements.
Plaintiff had previously obtained restraints against defendant in Pennsylvania earlier in the year. According to plaintiff's testimony, in or about February 2010, defendant threatened to set their house on fire with one of their sons present, which prompted plaintiff to call the local police department. Plaintiff obtained a restraining order in Pennsylvania "shortly after" that February 2010 incident. However, according to plaintiff, she voluntarily dismissed those restraints because of concerns that they could impede defendant's ability to work and provide child support. Thereafter, in June 2010 an argument erupted between the parties at the Pennsylvania house concerning the children's visitation schedule. According to plaintiff, defendant screamed at her and then began punching himself repeatedly in the face in an alleged attempt to make it appear that plaintiff had hit him. Apparently, plaintiff did not seek restraints at that time. Plaintiff further testified that on several occasions defendant told her that if she developed a relationship with another man, defendant would cause that new suitor, as well as the parties' children, to "die." Defendant did not address the February 2010 and June 2010 incidents specifically in his own testimony.
The events in New Jersey that led to the issuance of the FRO being contested on this appeal took place on August 22 and 23, 2010. According to plaintiff's testimony, on August 22 she dropped off the children with defendant on her way to work. The next morning, August 23, plaintiff went to pick up the children from defendant's house, and afterwards, took the children to the babysitter's house. After dropping the children off at the babysitter's house, plaintiff realized that she no longer had her cell phone and that defendant was in possession of it.
Anxious to retrieve her phone, plaintiff used the babysitter's phone that morning to contact defendant. During their brief conversation, defendant requested that plaintiff meet him down the street from his mother's house. The street is a dead-end. Plaintiff complied with defendant's request and drove to that location. Defendant returned plaintiff's phone to her. However, the parties exchanged words before they separated. According to plaintiff, "[defendant] threatened me and told me that I'm never going to have a boyfriend, my boyfriend [had] called [him], [and] we're both going to pay." Plaintiff testified that she did not, in fact, have a boyfriend at the time.
Immediately after their encounter on the street, plaintiff went to the police station to obtain a restraining order. The municipal court thereafter issued temporary restraints.
Defendant's version of the events differed significantly. According to him, plaintiff said "you're going to pay, you[r] mother's going to pay," as well as "you're not going to see the kids, [and] I'm putting a restraining order back on you." Defendant denied threatening plaintiff at any point in time. Instead, he later filed for and obtained a temporary restraining order against plaintiff on September 9, 2010, about two weeks after their street encounter.
Plaintiff's complaint and defendant's cross-complaint for final restraints were tried before the Family Part on September 30, 2010. Defendant was represented at the trial by counsel, while plaintiff was not. As we have already noted, both parties testified. No other witnesses were called.
After considering the proofs, the trial judge granted plaintiff's request for an FRO, and dismissed defendant's cross-application. The judge specifically noted that he "didn't find any of [defendant's] testimony to be particularly credible." Among other things, the judge was unconvinced by defendant's claim that he had asked plaintiff to meet him outside on his mother's street, rather than at the house because he could not back up his truck and because his mother had accused plaintiff of stealing a computer laptop and cash. The judge also questioned the credibility of defendant's assertion that he was the victim of domestic violence and in need of restraints, given defendant's delay of over two weeks in pursuing restraints and there being "no indication to the [c]our that he was actually afraid of her."
Conversely, the trial judge found plaintiff's allegations, even though her testimony was "somewhat scattered," to be credible and that they "made more sense" than those of defendant. The judge determined that defendant had engaged in prohibited harassment by threatening plaintiff. The judge took judicial notice of the incidents in Pennsylvania that reflected a prior background of domestic violence. Applying the definition of harassment set forth in N.J.S.A. 2C:33-4, the judge concluded that defendant had acted with a purpose to cause plaintiff annoyance or alarm. The judge found that defendant had confronted plaintiff at that location, despite her desire to meet him at a place where she would feel safer, accused her of having a relationship with another man, and threatened her. Given "the things that he said to her and the things that he's done in the past," the judge concluded that plaintiff "has reason to be in fear [of] him and that a final restraining order is necessary . . . to protect against further acts of domestic violence."
In his counsel's unopposed brief on appeal, defendant asserts that "[t]he trial transcript does not reflect the basis for a judicial decision," and that "[t]he lack of an opinion by the trial court and a lack of sufficient evidence requires a reversal of the [FRO]." We reject those contentions.
Defendant's contention that the trial judge failed to give adequate reasons for his decision is readily dispensed with. The original trial transcript from September 30, 2010, which defense counsel cited in his brief, contains a gap near the end, after the judge announces that he was "going to take a couple [of] minutes and just go over my notes, and then I'll be out with a decision." The original transcript then shows that a recess took place, and then the judge went back on the record and addressed only child support issues. It is obvious to any one reading the original transcript (and should have been obvious to defendant and defense counsel who both were present at the FRO trial), that the original transcript had inadvertently skipped the portion of the proceedings in which the judge issued his decision and his reasons. Consequently, we requested defendant to obtain the missing portion of the transcript, which was thereafter accomplished. Defendant elected not to file a supplemental brief addressing the reasons detailed by the judge in those omitted transcript pages. The judge clearly fulfilled the requirements of Rule 1:7-4 by making detailed findings of fact and conclusions of law. We therefore reject defendant's argument that the FRO should be reversed for lack of a statement of reasons.
We likewise reject defendant's argument that, on the merits, the proofs are insufficient to support the issuance of an FRO in favor of plaintiff. In examining those proofs and the trial judge's analysis of them, we are guided by a limited standard of review. As we recently noted in another domestic violence case, L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011), "[w]e are bound by the findings of the [trial] court that are supported by adequate, substantial, and credible evidence." See also Cesar v. Cesar, 154 N.J. 394, 411-12 (1998). "This deferential standard is even more appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" L.M.F., supra, 421 N.J. Super. at 533 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). We also bear in mind that "Family Part judges have 'special expertise in the field of domestic relations.'" Ibid. (quoting Cesar, supra, 154 N.J. at 412). "We will not disturb the 'factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Ibid. (quoting Rove Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Our review is also guided by the public policies underlying the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"). The statute is designed to "assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18.
Pursuant to the Act, N.J.S.A. 2C:25-19(a)(13) classifies harassment as one of the predicate offenses that may support a finding of domestic violence and the issuance of a final retraining order. Harassment, in turn, is defined in the Criminal code to include conduct in which a defendant, "with purpose to harass another, . . . [m]aces, 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[.]" N.J.S.A. 2C:33-4(a). A single harassing communication may suffice under the Act. State v. Hoffman, 149 N.J. 564, 580 (1997). On the other hand, an "ordinary domestic contretemps" between quarreling spouses does not warrant relief under the Act. Current v. Current, 281 N.J. Super. 243, 249-50 (App. Div. 1995).
Here, there is ample credible evidence in the record to sustain Judge Walsh's finding that defendant engaged in the prohibited act of harassment. Defendant purposefully arranged to meet plaintiff on a dead-end street to recover her cell phone. His pointed assertion to plaintiff that he would make her and her boyfriend "pay" was reasonably construed by the trial judge to comprise a threat, and a deliberate endeavor by defendant to alarm or seriously annoy her. There was no proof that the parties were having a financial dispute at the time of their encounter, and thus it was reasonable for the trial judge to conclude that the word "pay" was intended as a threat, rather than as a request for money or for assistance with bills. See Webster's II New College Dictionary 807 (1999) (defining "pay" in certain contexts as "[t]o gain revenge for or upon"). The reasonableness of that interpretation is corroborated by the past history of domestic violence in Pennsylvania. See also Pasadena v. Cameraman, 381 N.J. Super. 173, 183-84 (App. Div. 2005) (similarly concluding that communications by a defendant were intended as harassment, in light of the prior history between the parties). We also must defer to the trial judge's respective determinations that plaintiff's account of the events was generally credible and that defendant's version was not.
We are likewise satisfied that the record supports the trial judge's finding that final restraints were necessary for plaintiff's protection. See J.D. v. M.D.F., 207 N.J. 458, 488 (2011); Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006). Although we recognize the difficulties with the children's schedule and the emotions that were attendant to the parties' ongoing divorce case, the trial court had sufficient grounds, in light of the prior history of conflict, to impose restraints for plaintiff's protection at the time they were issued.