July 16, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FV-08-0038-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 8, 2012
Before Judges Baxter and Nugent.
In this domestic violence case, defendant B.L.S. appeals from the July 7, 2011 final restraining order (FRO) entered against him in the Family Part pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. During the hearing on the FRO, defendant made an ambiguous statement that caused the trial court to conclude, erroneously, that defendant did not dispute critical parts of plaintiff S.I.'s testimony. For that reason, and because the trial court's consequent findings of fact and conclusions of law were inadequate, we reverse and remand the matter to the trial court to make additional findings.
We derive the following factual and procedural history from the pleadings and from the hearing on the FRO. Plaintiff obtained a temporary restraining order (TRO) against defendant on July 3, 2011. Neither party was represented by counsel when they appeared for the hearing on the FRO four days later. Plaintiff testified that defendant was her boyfriend. On July 2, 2011, plaintiff and a girlfriend went to Atlantic City and returned to Vineland in the early morning hours of July 3. Defendant began telephoning plaintiff "constantly," beginning at approximately 4:00 a.m. She did not answer because she did not want to start an argument. Sometime after the calls began, she and her girlfriend went to a Denny's restaurant where they had breakfast with other friends. After eating, plaintiff and her friends went outside to talk and plaintiff saw defendant approaching in his car.
Defendant exited his car, upset and angry. He said to plaintiff, "oh, you can't answer my phone calls," then said to one of her male friends, "'oh, what are you violating me,' [and] all kinds of different things." Defendant asked plaintiff if she was going to continue to talk to him, she said yes, and then defendant started making comments to her friends again. She told her girlfriend that they should leave before the situation "got any worse than what it [was]," and they drove out of the parking lot in her girlfriend's car. Defendant followed them.
When plaintiff's girlfriend stopped her car at a red traffic light, defendant got out of his car and knocked twice, "real hard," on the window of the car in which plaintiff was riding. Plaintiff told her girlfriend to drive to the Vineland police station. As they turned onto the street where the police station was located, defendant swerved his car in front of them, "almost hitting [their] car." Plaintiff started screaming. She did not "know if he was trying to get us off the road, trying to -- I don't know what his intentions were." Her girlfriend drove to the police station and, after plaintiff filed a complaint, a Vineland police officer escorted them home from the station.
Several blocks from the police station, plaintiff saw defendant driving his truck. When he saw plaintiff and her girlfriend, he pulled over to the side of the road and stopped.
They stopped too. Realizing that the police were following plaintiff, defendant attempted to drive away, but the police pulled him over. According to plaintiff, that ended the incident.
When plaintiff finished testifying, the court asked defendant, "[Are] there any questions you'd like me to ask [plaintiff] about what she's testified to?" Defendant wanted to ask plaintiff if the incident occurred in Vineland, and if so, why the case was filed in Gloucester County. Defendant also wanted to know "if there was that much of a fear of a domestic violence [incident] . . . why wasn't I taken away at the time[?]" The court interpreted defendant's first question as a motion to dismiss the case for lack of jurisdiction. After explaining its jurisdiction, the court denied the motion, and then asked defendant, "Did you have another question you wanted me to ask [plaintiff]?" Defendant had no other questions.
Defendant testified that "the matter is exactly the way she said. I just tried to call her through the course of the night because we do have two young kids. And, they weren't with us at the time." Stating that his relationship with plaintiff had been "on shaky grounds here and there," defendant said that "there's a lot to this case other than . . . [the] restraining order . . . as far as residency, kids, and everything towards that matter."
Defendant acknowledged that he was "in the wrong . . . for doing what I did as far as . . . going there, asking her what she was doing and everything else towards that nature," but said that "[a]s far as the harassment or the domestic violence, . . . I don't really agree with that." He testified that he spoke to the police after they stopped him on the evening of the incident, and they said they would talk to plaintiff "to make sure that [she does not] want to have any type of . . . assault . . . or harassment charges or anything pulled out against you." Defendant waited with the police, and they eventually told him that "they weren't going to file anything" and released him. He did not know plaintiff had filed for a restraining order until plaintiff told him the next day when he visited his children at her parents' home. Thereafter, he went to the police station and "got the letter," that is, the TRO.
After defendant testified that he "got the letter," the court stated: "Okay. I've heard the testimony in this matter. I'm satisfied that [defendant] has verified the actions testified to by [plaintiff] with respect to both the harassment and what could conceivably be a . . . simple assault with respect to driving his car in front of hers." Defendant interrupted the court:
[DEFENDANT]: Now, wait a minute[.] [THE COURT]: Sir, my turn. [DEFENDANT]: Okay. [THE COURT]: My turn, okay? [DEFENDANT]: Yep. [THE COURT]: I'm satisfied there was an act of domestic violence. I am going to enter the final restraining order. You're not going to have any contact with her.
During the ensuing colloquy between the court and defendant, defendant insisted that he did not harass plaintiff. The court replied that it "already found that you did harass her." When defendant said that he had not finished testifying, and that "there's a lot more between the situation other than what you're seeing[, y]ou're trying to tell me that I ran her off the road," the court replied, "I found that you did, and you agreed with it, frankly." Defendant started to reply, "No I didn't -- what I said to you was --," but did not finish his sentence because the court interrupted: "You said everything she said was true." When defendant denied saying that everything plaintiff said was true, the court replied, "That's what you told me." The court nevertheless permitted defendant to explain, and defendant admitted calling plaintiff and stopping at the Denny's restaurant, but denied "run[ning] anybody off of the road."
The court repeated its initial determination: "I want to say again that I'm satisfied that there was an act of domestic violence. I'm satisfied that you did harass her. I'm satisfied you did run her off the road. So you don't live there anymore. That's number one. Now we'll talk about parenting time . . . and child support." During the ensuing colloquy, defendant said that he would like to try and get a lawyer, but "right now there's no way that I can get a lawyer." Following further discussion about parenting time and child support, the court issued the FRO from which defendant appeals.
Defendant raises the following issues for our consideration:
INSUFFICIENT EVIDENCE EXISTS TO SUPPORT A PREDICATE OFFENSE UNDER THE PREVENTION OF DOMESTIC VIOLENCE ACT
A. Insufficient Evidence Exists to Support a Finding of Harassment
B. Insufficient Evidence Exists to Support a Finding of Simple Assault
THE COURT FAILED TO FIND THAT A FINAL RESTRAINING ORDER WAS NECESSARY TO PROTECT PLAINTIFF FROM FURTHER ABUSE POINT THREE DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN DEFENDANT WAS UNABLE [TO] QUESTION [PLAINTIFF] ABOUT HER TESTIMONY OR PRESENT WITNESSES ON HIS BEHALF POINT FOUR DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE COURT DID NOT GIVE HIM AN OPPORTUNITY TO RETAIN COUNSEL.
Our "review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not disturb the trial court's findings unless they are demonstrated to lack support in the record or are inconsistent with the substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations based upon the opportunity of the judge to see and hear the witnesses. Cesare, supra, 154 N.J. at 411-12. See also Pascale v. Pascale, 113 N.J. 20, 33 (1988). In Family Part cases, because of the Family Part's special expertise, we must accord particular deference to fact-finding and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13. Although we owe no special deference to a trial court's conclusions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), "we do not second-guess their findings and the exercise of their sound discretion," Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
Of course, trial courts must "find the facts and state . . . conclusions of law thereon in all actions tried without a jury[.]" R. 1:7-4(a). "Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). A trial court's failure to make adequate findings of fact and conclusions of law may require a reversal of the court's decision and a remand. See Finamore v. Aronson, 382 N.J. Super. 514, 523 (App. Div. 2006) (reversing and remanding because the trial court made no findings of fact to support a resultant conclusion).
A trial court hearing an application for a FRO under the PDVA must make two determinations: whether the plaintiff has proved by a preponderance of the evidence that defendant committed one of the predicate acts enumerated in N.J.S.A. 2C:25-19a; and, if so, whether a restraining order is necessary to protect the plaintiff. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). "Although this second determination . . . is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.
The PDVA complaint alleged that defendant had committed the offense of harassment, N.J.S.A. 2C:33-4, which is a predicate act under the PDVA, N.J.S.A. 2C:25-19a(13). In his first point, defendant contends that plaintiff failed to establish harassment, or simple assault,*fn1 by a preponderance of the evidence, and that the court erred when it determined that plaintiff had established both offenses.
The court made no findings of fact concerning harassment, apparently concluding that the facts were undisputed in view of defendant's testimonial statement that "the matter is exactly the way [plaintiff] said." After making that statement, defendant immediately explained that he attempted to call plaintiff "during the course of the night" because they had two young children. Defendant also explained that he was wrong to go "there" and ask plaintiff what she was doing "and everything else towards that nature." He specifically denied harassing plaintiff. Findings of fact were required, R. 1:7-4, and a specific finding concerning defendant's state of mind was required before a determination could be made that defendant committed the predicate offense of harassment.
Harassment requires that a defendant act "with purpose to harass another." N.J.S.A. 2C:33-4. Acting with that purpose, a defendant commits the offense when, among other things, he "[m]akes . . . a communication or communications . . . at extremely inconvenient hours, or in offensively coarse language, or in any other manner likely to cause annoyance or alarm," N.J.S.A. 2C:33-4(a); or "[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person," N.J.S.A. 2C:33-4(c). The court made no findings about defendant's intent at any time during the morning of July 3, 2011, and made no credibility determinations.
Nor was the court's statement that defendant committed what "could conceivably be . . . a simple assault with respect to driving his car in front of hers" a conclusion that plaintiff had established the elements of simple assault by a preponderance of the evidence. Whether the court considered assault as a predicate offense, or whether the court's statement about simple assault was dicta, is unclear.
Additionally, as defendant argues in his second point, the trial court made no findings of fact or conclusions of law as to whether a restraining order was necessary to protect plaintiff. For that reason alone a remand is warranted.
In his third point, defendant argues that he was denied the right to question plaintiff about her testimony, as well as the right to present witnesses on his behalf. We disagree.
Following plaintiff's direct testimony, the court twice asked defendant if he had questions he would like the court to ask plaintiff. In response to the court's first inquiry, defendant asked whether the incident occurred in Vineland, a fact that had already been established through the plaintiff's direct testimony. After the court answered defendant's question about venue, the court asked defendant if he had any more questions for the court to ask plaintiff. Defendant had no more questions.
Trial courts have broad discretion to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." N.J.R.E. 611(a). Although the trial court should have permitted defendant to directly cross-examine plaintiff until it became clear that the court's intercession was necessary, plaintiff's first question demonstrated the need for the court's intercession. The demand on judicial resources in the Family Part is great, and self-represented litigants' general inexperience with framing relevant questions during cross-examination can needlessly consume the court's time. That was evident in this case. Defendant's first question concerned an undisputed fact that had already been established, and defendant's purpose in asking the question had nothing to do with attacking plaintiff's testimony. The trial court acted well within its discretion.
The trial court did not limit the number of questions that defendant could ask the court to ask plaintiff, and defendant has not specified in this appeal any question that he was prohibited from posing to plaintiff, or any topic that he was prohibited from pursuing.
Defendant's argument that he was unable to present witnesses on his own behalf is equally devoid of merit. The hearing record does not support his claim, and he has identified in this appeal not one witness whose testimony would have been favorable to him.
Lastly, defendant argues in his fourth point that the court did not give him an opportunity to retain counsel. Defendant never asked for that opportunity, and made a statement indicating that he knew he was unable to retain counsel. In a post-adjudication statement, defendant informed the court, "I mean, right now there's no way that I can get a lawyer."
Plaintiff disputes defendant's claim and asserts that "[g]eneral instructions are always given by the court['s] Domestic Violence Unit staff, prior to the list being formally called by the court and commencement of hearings," and that "[l]itigants are instructed that if they wish to seek an adjournment to obtain counsel on a first listing, they need only ask." That information is not part of the record on appeal. Nonetheless, the appellant is required to include in his appellate appendix the "parts of the record . . . [that] are essential to the proper consideration of the issues, including such parts as the appellant should reasonably assume will be relied upon by the respondent in meeting the issues raised." R. 2:6-1(a)(1)(I).
Because the transcript of preliminary instructions given to the parties, if any, is not part of the record before us, we decline to address that issue. On remand, the court can determine whether preliminary instructions were given to defendant and whether those instructions included, as plaintiff suggests, an instruction that any party need only ask for an adjournment to retain counsel. If defendant was not so informed, then he may make an appropriate application to the trial court and develop an adequate record on that issue.
The trial court shall, within thirty days of the date of this decision, make its findings of fact and conclusions of law. This decision shall not be construed as precluding a further hearing if the trial court, either sua sponte or on the application of a party, determines that further testimony is necessary. The provisions of the TRO, including all restraints, and those provisions of the FRO concerning parenting time and child support, shall remain in effect pending further order of the trial court.
Reversed and remanded. We do not retain jurisdiction.