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E.A v. A.A

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 18, 2012

E.A., PLAINTIFF-APPELLANT,
v.
A.A., DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-002434-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 7, 2012

Before Judges Yannotti and Kennedy.

Plaintiff appeals from an order entered April 1, 2011, vacating a temporary restraining order (TRO) and dismissing her complaint against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The trial judge, after several days of hearings, found that plaintiff had not proven by a preponderance of the credible evidence that acts of domestic violence had occurred. The trial judge also had "significant difficulty with the credibility of the plaintiff" and cited several inconsistencies in her proofs. For reasons expressed hereinafter, we affirm the order of the trial court.

Plaintiff contends the order dismissing the domestic violence complaint and vacating the TRO must be reversed because the trial judge imposed an "onerous standard of proof" upon her at the hearing and relied upon "legally discredited assumptions and stereotypes regarding domestic violence" in assessing the evidence. She adds that the trial judge also relied upon an "unauthenticated text message" in reaching his conclusions.

To put this matter in perspective, we briefly review the family relationship of the parties and the actions that preceded the filing of the domestic violence civil complaint by plaintiff on March 14, 2011. We will then review the evidence presented by the parties at the hearings on the complaint, as well as the trial judge's findings of fact and conclusions of law.

I

Plaintiff and defendant are unmarried adults and met in the Dominican Republic. They have three children, who were four, three and two years of age, respectively, at the time of the alleged incidents of domestic violence. At that time, plaintiff was twenty-one and defendant was forty years of age and lived with their children in Newark.

On December 12, 2010, plaintiff and her children left New Jersey and began residing with plaintiff's cousin in New York City. Defendant objected to this arrangement and on December 13, 2010, filed a custody complaint with the Family Part in Essex County. After speaking with plaintiff, he withdrew the complaint ten days later, apparently believing that plaintiff would shortly return to New Jersey.

Plaintiff, however, remained in New York and on January 26, 2011, filed a "Family Offense Petition" with the family court in New York alleging that on December 1, 2010, defendant "harassed . . . and hit [her] repeatedly on the back with a shoe in front of the children" and threatened to "throw [her] down the stairs." She also alleged that in 2007 defendant pulled her hair, causing her to fall, and hit her "on numerous occasions with a belt and telephone wire", adding that he "constantly threatens . . . bodily harm."

Defendant then filed a second custody complaint with the Family Part in Essex County on February 7, 2011, and the trial judge scheduled a hearing date for March 10, 2011. A temporary order of protection was entered by the family court in New York on February 9, 2011, barring defendant from contacting plaintiff. Plaintiff also filed a support petition against defendant in New York on February 22, 2011.

On March 10, 2011, plaintiff failed to appear before the trial judge in New Jersey, and defense counsel informed the trial judge of plaintiff's New York petitions and advised that the New York court had "adjourned both cases" pending a decision by the New Jersey court. The trial judge at first entered a bench warrant against plaintiff for failing to appear, but vacated that order later in the day after plaintiff responded to a telephone call from the judge and then appeared, claiming she had not been apprised of the pending court date or action.

With this procedural background, we turn to the domestic violence civil complaint at issue here and the hearings that followed. We derive the factual allegations from the testimony presented at the hearings.

II

On March 14, 2011, plaintiff filed a complaint against defendant claiming she had been assaulted, harassed and threatened by defendant on December 1, 2010, at 5:00 p.m. She indicated in the complaint that, "defendant hit her repeatedly on the back of the head with a shoe in front of their three children" and that he threatened to "throw [her] down the stairs." The typed addendum to the complaint listed the same prior acts listed in the New York petition and in a hand-written addition stated she was "hit" in 2009, called "ugly, crazy etc" in 2010, and "throughout 2007 to 2010, def[endant] engaged in several act[s] of forcible sexual conduct."

The trial judge entered a TRO against defendant on March 14, 2011, after hearing brief testimony from plaintiff. When asked if defendant had access to a weapon, plaintiff replied, "I saw him with a gun. He showed it to me, he threatened me with that once." Hearings on a final restraining order were then scheduled and held over the course of three days, with each party represented by counsel.

When asked to explain what happened in "early December of 2010", plaintiff testified that she was upstairs with her children when her daughter told her she had seen defendant "on the bed" with a "woman that he has." Plaintiff then told the defendant "not to take the child over there with him. Because they know everything, the children know everything." Defendant replied, according to plaintiff, that "the child was lying" and he then hit plaintiff "like three times" in the back with a child's boot. He also threatened to "throw [plaintiff] down the stairs" and called plaintiff "ugly, stupid and crazy." Plaintiff's counsel then asked, "while he was in the act of actually hitting you with the shoe and punching you in the head, what were the children doing?" An objection was raised to the form of the question, and plaintiff then noted that "it was a fist that hit me in the back of the head." Plaintiff also volunteered that "because of the blows that I received, I had to go to the hospital and I received three injections for it." The trial judge at this point asked plaintiff's counsel if she had any hospital records reflecting such treatment, and plaintiff's counsel replied, "No. No, Your Honor. May I proceed?"

Later in her testimony, plaintiff indicated that she did not receive any medical attention in the hospital or otherwise for any injuries resulting from the alleged attack by defendant. She added that after the alleged incident, she did not call the police but, rather, called her cousin in New York. When asked by her counsel why she did not call the police, plaintiff responded, "[defendant] said he was going to have me deported and he's going to take my kids away."

Although the domestic violence complaint did not allege any prior history in 2005, plaintiff was permitted to testify over defendant's objection that in 2005 defendant struck her on the legs with a stick. She further testified that in 2006, as she was providing milk and cereal to their oldest child, defendant allegedly told her that the food "was for him, so he pulled my hair and knocked me backwards. Knocked me down backwards."

Then, according to plaintiff, in the summer of 2007, a man called the house and when plaintiff picked up the phone, defendant "started hitting [plaintiff] on the head with a telephone cord." She added that he also struck her arm with his fist leaving bruises. She did not seek medical treatment and did not call the police.

Plaintiff said she called members of her family and stayed with them in New York for two months. Plaintiff's counsel also asked her if defendant ever had access to a gun and plaintiff replied "yes" and that defendant "threatened [her] with it." She added that between 2007 and 2010, defendant forced her to have sexual relations with him "like, ten or more times a month."

Plaintiff said she left home on December 12, 2010, to stay with a cousin in New York. She did not call the police at that time. On cross-examination, defense counsel showed plaintiff a text message sent to defendant's phone from plaintiff's phone on December 14, 2010, with the words "somebody knows the slut you impregnated." Plaintiff stated she did not send that text message but that it might have come from her phone.

Plaintiff's cousin recalled seeing bruises on the plaintiff in the summer of 2007. She indicated that plaintiff went back with defendant because he "was her husband." Plaintiff's uncle also testified that he saw plaintiff in 2007 and that "we called the police like twice, but the police did not arrive."

The last witness to testify for plaintiff was another cousin who had come to Newark on December 12, 2010 to take plaintiff to New York. She indicated that she had conversations with plaintiff about defendant in the past but plaintiff never explained the nature of her problems with defendant. She indicated that in the week prior to December 12, 2010, plaintiff called her and asked if she could come to New Jersey to "pick [her] up." She remembered that plaintiff was crying and said defendant had "hit her" with a child's boot.

When she arrived at plaintiff's residence on December 12, 2010, plaintiff was not there, and so she went to the store where defendant worked and asked a man there to call defendant. Defendant told her on the phone that plaintiff was at the hospital. Plaintiff's cousin then went to the hospital where plaintiff was being treated for a "throat infection."

After plaintiff was released from the hospital, plaintiff's cousin took her back to the house to collect her luggage but defendant was there and indicated that the "children can't leave." Plaintiff then called defendant's brother who arranged for another brother of defendant to go to the house to help. Plaintiff's cousin, at this point, called the police and was waiting for their arrival. Defendant's brother had earlier said that "if you need to call the police, call the police." After defendant's brother arrived, plaintiff left with the children.

Defendant testified that he never struck plaintiff or called her names, but conceded they had argued because plaintiff accused him of having a girlfriend. Plaintiff thereafter testified briefly in rebuttal.

As noted earlier, the trial judge found that plaintiff had not proved her claims of domestic violence, nor her "past history" claims, by a preponderance of the evidence and dismissed the complaint and vacated the TRO. In support of this determination, the trial judge rendered an opinion from the bench on April 1, 2010, and later issued a supplemental written opinion.

In his findings of fact and conclusions of law issued from the bench, the trial judge indicated that he "does not believe the evidence in this record is sufficient to prove on a credible basis the required preponderance of the evidence to sustain the plaintiff's burden." He added that he had "significant difficulty with the credibility of the plaintiff." This determination was based on the judge's observations of the plaintiff's demeanor as well as inconsistencies he noted in the testimony. The judge observed that plaintiff would appear "tearful" when she knew she was being observed but "wouldn't be tearful" when she thought she was not being looked at. The judge found this to be an "effort to engender the sympathy of the court."

The judge also expressed concern about the delay between the alleged acts of domestic violence and the date that plaintiff moved out of the home. Moreover, the judge expressly discredited plaintiff's explanation about her failure to call police. Plaintiff had indicated that she did not call the police because she feared deportation. However, the judge noted that defendant's brother apparently told her to contact the police and that other relatives had actually contacted the police on her behalf. The judge further explained that he was presented with no photographs of any injuries to the plaintiff's body and was "never shown . . . hospital records" despite plaintiff's initial claim that she had received medical attention for the injuries she allegedly suffered.

Another factor affecting the credibility of plaintiff, in the judge's view, was the length of time that elapsed between the alleged incidents of domestic violence and plaintiff's filing for a protective order in New York. While plaintiff asserted she did not realize she could file an application for protection under New York law until after she had spoken to a representative of a support group in New York, "the court [was not provided with] records of any contact with this organization in New York to prove that this timeline was as . . . related to the court."

Lastly, the trial judge questioned the credibility of plaintiff's testimony that defendant threatened her with a weapon despite the fact that this allegation was not set forth in either the New York or New Jersey domestic violence complaints. He found that this omission diminished plaintiff's credibility.

In his later written opinion, the trial judge set forth in greater detail the basis of his conclusions. In the written opinion, the trial judge finds that [plaintiff] failed to prove the predicate acts of assault, terroristic threats and harassment, and failed to prove the history of domestic violence alleged in the complaint and as amended at trial by a preponderance of the credible evidence. Specifically, the court finds that [plaintiff's] testimony and the testimony of her witnesses . . . was not credible and, based on their demeanor and the inconsistencies or implausibility of their testimony, the court does not credit the testimony of each of the witnesses supporting her case for separate reasons . . . . At the same time, for separate and independent reasons, the court deems [defendant] credible and credits his testimony.

The trial judge indicated that he "observed [plaintiff] contriving tears in an effort to invoke the court's sympathy" and found "portions of the substance of her testimony were farfetched and at times bordering on bizarre, leading the court to conclude her testimony was incredible." With respect to the text message, the judge noted that plaintiff conceded "the message may have been sent from her phone, but she did not send it. Rather, she alleged that her three children, ages two and four, played with her phone and sent the text." The judge found the explanation to be implausible.

Further, despite plaintiff's testimony that her body "hurt all over" as a consequence of the alleged assault on December 1, 2010, plaintiff "failed to testify that she sustained any bruises and no pictures were offered to the court regarding any injuries." The judge also noted plaintiff's inconsistent explanations as to whether she had actually sought medical care at a hospital after the alleged incident.

The judge observed that plaintiff lived across the street from a police station but did not report the alleged abuse to the police, and that her explanation for failing to seek assistance from the police "lacks credibility." The judge observed that plaintiff claimed she called the police in March 2011 to report that defendant left his clothes in the apartment and that several of plaintiff's relatives testified they had contacted the police on her behalf. The judge concluded that "if [plaintiff] was assaulted, her conduct reflects that she would have sought the protection of the police precinct across the street from the parties' residence, consistent with her past conduct and the conduct of her witnesses."

The judge also found that the testimony of plaintiff's cousin about the gap in time between the alleged acts of domestic violence and the date plaintiff was picked up from New Jersey was "not credible." The judge found that "this gap in time undermines the credibility of [plaintiff's] claim that she was abused and believed herself to be in imminent danger."

The judge also found credible defendant's testimony that the parties did not argue in December 1, 2010, but that there had been an argument earlier about his alleged relationship with "another woman." The judge determined that plaintiff's testimony and that of her witnesses with regard to alleged past acts of domestic violence was likewise without credibility.

On appeal, plaintiff raises the following arguments:

THE TRIAL COURT IMPOSED AN ONEROUS STANDARD OF PROOF BEYOND THAT REQUIRED BY THE ACT IN ASSESSING THE EVIDENCE THE TRIAL COURT RELIED UPON LEGALLY DISCREDITED ASSUMPTIONS AND STEREOTYPES REGARDING DOMESTIC VIOLENCE AND MADE CONCLUSIONS NOT SUPPORTED BY THE RECORD

A. The trial court erred in concluding that [plaintiff's] testimony regarding abuse was not credible because she never called the police

B. The trial court erred in concluding that [plaintiff's] testimony regarding abuse was not credible because she returned to her abusive relationship and delayed leaving after the December 2010 incident

C. The court erred in concluding that [plaintiff's] family's conduct was inconsistent with serious violence because they did not do more to intervene

D. The court erred in failing to consider how trauma can impact a victim's presentation of evidence and demeanor

THE TRIAL COURT INAPPROPRIATELY RELIED UPON AN UNAUTHENTICATED TEXT MESSAGE NOT PROPERLY ENTERED INTO EVIDENCE

III

Our scope of review of the trial court's findings of fact 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." Id. at 33 (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). Further, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family courts' 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 L.L.C. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

IV

We do not find that the trial judge imposed an onerous standard of proof upon plaintiff or that he required documentary evidence to support her claims. N.J.S.A. 2C:25-29(a) provides that the standard for proving allegations in a complaint for domestic violence "shall be by a preponderance of the evidence." The oral and written opinions of the trial judge explicitly applied the preponderance of the evidence standard required by statute.

Further, the statute does not specify the types of evidence that are admissible or inadmissible in a domestic violence proceeding. In our view, the Legislature adopted this standard recognizing that evidential issues in New Jersey are governed by the New Jersey Rules of Evidence.

N.J.R.E. 402 provides "all relevant evidence is admissible." N.J.R.E. 401 defines relevant evidence as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." The test for relevance is broad and favors admissibility. State v. Deatore, 70 N.J. 100, 116 (1976). "In determining whether evidence is relevant, the inquiry should focus on 'the logical connection between the proffered evidence and a fact at issue.'" State v. Darby, 174 N.J. 509, 519 (2002)(quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). Moreover, "[i]f the evidence offered makes the inference to be drawn more logical, then the evidence should be admitted unless otherwise excludable by a rule of law." State v. Covell, 157 N.J. 554, 565 (1999).

Weighing evidence and undertaking the "delicate task" of determining whether a party's actions constitute domestic violence under the statute is the function of a trial court. See Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995). Not only do we accord the trial court special deference in Family Part matters, Cesare, supra, 154 N.J. at 413, we also will not "second-guess [Family Part judges' factual] findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007)(citing Cesare, supra, 154 N.J. at 413).

We do not find that the trial judge abused his discretion in remarking upon the absence of any documentary proof in assessing the credibility of plaintiff and her witnesses. A review of the opinions rendered by the trial judge supports the conclusion that the absence of documentary proof was merely a factor he considered and was not dispositive in any way. Consequently, this claim is without merit.

These observations apply, as well, to plaintiff's claims that the trial judge also relied upon "legally discredited assumptions and stereotypes regarding domestic violence." The subjects of delayed reporting and failure to call the police were actually raised by plaintiff's counsel in her direct examination of plaintiff during the hearings. We recognize that delayed reporting of domestic violence, failure to notify police, and the effect of trauma upon a victim of violence are subtle issues requiring a nuanced and understanding evaluation by a trial judge. We have no reason to believe that the trial judge did not evaluate all of the evidence in this manner. We do not find that the judge's evidential determinations were either an abuse of discretion or a clear error in judgment.

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010).

Finally, we do not find plaintiff's assertion of error as to the text message to have sufficient merit to warrant an extended discussion in a written opinion. R. 2:11-3(e)(1)(E). The trial judge did not accord substantial weight to the text message and it was not a critical factor in his credibility findings. Thus, even if we were to agree with plaintiff that the admission of the text message was in error, it was not "clearly capable of producing an unjust result." R. 2:10-2.

Affirmed.

20120518

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