August 7, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-249-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 18, 2012 -
Before Judges Espinosa and Koblitz.
Defendant E.D. appeals the entry of a final restraining order (FRO) against him on behalf of plaintiff P.D. on August 23, 2011, pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. E.D. argues that he was deprived of a fair trial by the judge's failure to provide cross-examination or to determine whether an FRO was necessary to protect P.D. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for a new trial.
The parties had a twenty-one year relationship, the last four of which they were married. They have no children together. On August 15, 2011, P.D. filed a domestic violence complaint against E.D. claiming that he had harassed and stalked her. See N.J.S.A. 2C:25-19(a)(13) and (14). The complaint alleged:*fn1
THE DEF WAS CALLING AND TEXTING THE PLA ALL WEEKEND. DEF TEXTED HER 120 TIMES SINCE FRIDAY. DEF SAT OUTSIDE OF PLAS HOME SATURDAY NIGHT UNTIL 7AM. DEF SAID IF SHE WAS W/ A GUY HE WOULD BASH HIS HEAD IN. DEF HAS ALSO BEGUN TO TEXT PLF'S ADULT CHILDREN.
The complaint alleged a prior history of domestic violence in the following way:
DEF HAS ANGER ISSUES AND IS A "LOOSE CANNON" DEF HAS SHOVED PLA, VERBALLY ABUSIVE. PARTIES SEPARATED APPROX 17 MTHS AGO.
As a result of this complaint, a temporary restraining order was issued.
At the final hearing, the judge patiently allowed each party to testify at length about their relationship. The parties testified to an emotional, unstable relationship with many arguments and reconciliations. Neither, however, was afforded the opportunity to cross-examine the other. P.D. did not testify to any history of domestic violence between the parties. They had recently been renovating the marital home in Lambertville. During the renovation, P.D. was living with her brother, while E.D. was living with his relatives. They maintained significant contact during this period. Renovations to their home were completed in July of 2011. In August, they went to dinner and had a serious argument about whether or not P.D. would leave her brother's house to live with E.D. After the argument, E.D. wrote P.D. a lengthy, bitter letter, demanding a divorce. Thereafter he sent her numerous angry, emotional and, at times, vulgar texts seeking to reconcile and expressing mounting frustration and jealousy when she did not respond.
E.D. admitted to writing the initial letter out of frustration and anger. The judge asked E.D. if he sent the letter, "because you wanted to hurt her because she hurt you?" to which E.D. responded, "Emotionally, you know."
The judge made only the following findings, directing his comments at E.D.:
[T]he definition of harassment is saying something for the purpose to bother or annoy. That's the definition of harassment. There is very little dispute here that this was harassment within the meaning of that statute. Now, I realize I'm listening to someone who's desperately trying to hold his marriage together, I understand that. My obligation, though, is to reach conclusions based upon the law. This allegation of domestic violence has been sustained by your own admission on a number of occasions.
Now, what happens beyond that I can't say, but I do have to grant this restraining order today.
E.D. concedes that his use of obscenity and text communications at inconvenient hours may indeed constitute harassment. N.J.S.A. 2C:33-4. However, E.D. argues that absent cross-examination and findings that an FRO was necessary to protect P.D. against further abuse, the entry of such an order was improper. We agree.
As we noted in Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005), the entry of an FRO carries serious consequences. Thus, a judge conducting a final domestic violence hearing must provide the defendant with all important procedural safeguards, including cross-examination. Id. at 124-25. We recognize that the judge permitted extensive testimony from both parties, and may have reasonably feared that cross-examination would degenerate into an emotional in-court argument between the two. However, the trial judge could have closely controlled the cross-examination so as to permit only proper questioning. See N.J.R.E. 611(a) and (b).
Aside from this procedural deficiency, the judge also neglected to make necessary findings for issuance of a FRO. After a judge determines by a preponderance of the evidence that the defendant has committed an act of domestic violence, the judge should then determine "whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence." Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006). Many times, depending on the nature of the domestic violence and the history between the parties, such a determination is "self-evident." Id. at 127. Other times it is not.
N.J.S.A. 2C:25-29(a)(1) requires the court to consider "[t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse[.]" Here, P.D. did not testify to a prior history of domestic violence, although she said the parties' relationship over the years was quite tumultuous. A prior history of domestic violence might indicate the need for an FRO, even without specific findings. Here, the trial judge expressed empathy for E.D.'s unhappiness due to the demise of his relationship with P.D. without making any findings as to E.D.'s dangerousness. Absent specific findings relating to the danger to P.D., we cannot conclude from E.D.'s emotional state and distraught communications over one weekend that it was necessary to issue an FRO "to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127.
We reverse and remand for a new trial, reinstating the temporary restraining order issued on August 15, 2011, pending the trial's outcome. We do not retain jurisdiction.