April 12, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1978-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 21, 2012
Before Judges Graves and J.N. Harris.
This is a domestic violence case. At the time of trial, the parties had been married for ten years and were residing together with their two children; a daughter born in 2002 and a son born in 2005. Defendant D.G.A. appeals from a final restraining order entered against him on April 6, 2011, under 35. We affirm.
In her domestic violence complaint, plaintiff G.E.A. alleged "ongoing abuse" by her husband against her and the children. Plaintiff also stated that defendant was "physically abusive and [bit] her arm" while the parties "were fighting over a utility bill" on March 18, 2011. Plaintiff claimed that she was "fearful for her life" because defendant had guns in the house, and he "had threatened to snap her neck." In addition, plaintiff described a prior history of domestic violence in an amended complaint that was provided to defendant and his attorney prior to trial.
The parties were the only witnesses to testify at trial. Plaintiff testified to a prior history of domestic violence and described the incident on March 18, 2011, as follows:
On March 18th, me and my husband were having a dispute over the Comcast cable bill, and he told me to call. When I'm on the phone with the Comcast cable people, he's screaming at me while I'm on the phone with the lady, so I couldn't actually listen to her and him at the same time. So, I told him, I'm going to hang up the phone, to the lady, I'll call you in a minute, and I started writing the phone number of Comcast cable on a piece of paper and the account because I said, now, you call since you don't want me to do it and you're calling me all these names.
He started calling me stupid, bitch, all this. And so . . . I was giving him the paper. He didn't want the paper, so he took this binder from me, which [had] my personal papers.
THE WITNESS: And then he just started from there attacking me. He took the binder. I went to grab it back, and he started biting my arm to prevent me from grabbing the binder. He bit me about four times.
Plaintiff testified the bite marks "changed color" the next day, and she submitted three photographs to the court to show the injury to her arm. Plaintiff also introduced copies of police reports to corroborate that she had reported other acts of violence by defendant to the police. When defendant testified, he acknowledged that he "grabbed the binder" from plaintiff after she got off the phone. Defendant also testified that plaintiff began hitting him when he would not return the binder to her:
And she was standing over me and she hit me in the back of the head. . . . And I felt my blood pressure going up. I said . . . stop it. Go away. She says, no. Then she hits me again, and she has her arm over me. Her right arm was over me. And I said . . . I'm going to bite you. Stop it.
And I had my mouth on her arm just once, and she pulled away. She hit me again. I stood up and I walked over to the counter. . . . I had my back to her. She hit me again. I had the [binder] like a basketball player, holding it away from her, and she says, give me the [binder]. According to defendant, he went to another room with the binder to get away from plaintiff and to telephone the cable company. About five or ten minutes later, defendant heard "the door slam," and he knew that plaintiff had left. Defendant also denied that he had ever physically abused plaintiff or the children.
In an oral decision, the trial court credited plaintiff's testimony. The court found that on March 18, 2011, defendant "threatened to bite the plaintiff, and he did. He bit the plaintiff. That injury is corroborated by [the photographs] of the plaintiff's arm." The court also determined that there was a history of domestic violence "going back to 2004," and, citing Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), the court concluded that a final restraining order was necessary to protect plaintiff from future acts of domestic violence. On appeal, defendant argues that he is entitled to a new trial because the court did not allow his attorney to cross- examine plaintiff regarding a conviction in another jurisdiction for interfering with custody. We do not agree. On cross-examination, defendant's attorney attempted to question plaintiff about a conviction in Arizona for interfering with custody. Plaintiff's attorney objected and the following colloquy occurred:
[PLAINTIFF'S ATTORNEY]: It has no relevance to whether there was domestic violence in this relationship.
[DEFENDANT'S ATTORNEY]: It's absolutely relevant, Judge. She's trying to get the upper hand in a matrimonial action, Your Honor. My client's an attorney, Your Honor. This is very serious for my client. I think I should be given wide latitude here.
THE COURT: . . . [G]ive me the offer of proof why this is relevant.
[DEFENDANT'S ATTORNEY]: Well, Your Ho --
THE COURT: What's the incident we're talking about?
[DEFENDANT'S ATTORNEY]: She was convicted --
THE COURT: When?
[DEFENDANT'S ATTORNEY]: 2008 -- I'm sorry, 2001, Your Honor.
THE COURT: How is that relevant under the rule[s] of evidence?
[DEFENDANT'S ATTORNEY]: Well, Your Honor --
THE COURT: It doesn't go to credibility, right?
[DEFENDANT'S ATTORNEY]: Well, I think anything goes to credibility, Your Honor.
THE COURT: Let's go to the rules of evidence --
[DEFENDANT'S ATTORNEY]: But I still think the Court can consider it . . . . She's trying to get the upper hand in a matrimonial action, Your Honor.
The trial court sustained the objection because it was unclear whether plaintiff had been convicted of a crime in Arizona.*fn1 In addition, the court found that the probative value of the prior conviction was substantially outweighed by the other factors enumerated in N.J.R.E. 403. The scope of cross-examination is governed by N.J.R.E. 611(b), which restricts it "to the subject matter of the direct examination and matters affecting the credibility of the witness." However, "[t]he court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination." On appeal, a decision to limit cross- examination will not be disturbed "unless clear error and prejudice are shown." Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492 (App. Div.), certif. denied, 165 N.J. 607 (2000).
Pursuant to N.J.R.E. 609, convictions for a crime are admissible for purposes of impeachment "unless excluded by the judge as remote or for other causes." In this case, the Arizona conviction was remote and unrelated to domestic violence. In addition, the conviction was not for an offense involving "lack of veracity, dishonesty or fraud." State v. Sands, 76 N.J. 127, 144 (1978). Under these circumstances, we find no abuse of discretion in the trial court's ruling.