August 20, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-749-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued August 13, 2012 - Before Judges Ashrafi and Hayden.
Defendant G.S.A. appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered after trial on October 24, 2011. We affirm.
Defendant and plaintiff K.A.A. were divorced in June 2011. They have three children, ages six, three, and six months at the time of the domestic violence complaint filed on September 14, 2011. Plaintiff alleged that defendant harassed her on September 10, 2011, at the time he dropped off their children following his parenting time. According to the complaint, he yelled at her and called her a "f***ing idiot" in front of the children, threatened to kill her dog, and threw the children's suitcases and wet towels at or toward her and the infant she was holding. On the standard domestic violence complaint form, plaintiff answered "no" to the question: "Any prior history of domestic violence reported or unreported?"
Both parties retained the services of attorneys to represent them for the domestic violence case. On September 22, 2011, plaintiff filed an order to show cause under the docket number of her divorce judgment seeking restrictions on defendant's parenting time with the children. The court suspended defendant's parenting time pending the domestic violence trial, which was adjourned twice before it commenced on October 14, 2011.
Plaintiff and defendant were the only witnesses. During plaintiff's testimony, her attorney asked about prior acts of domestic violence by defendant against her. Defense counsel objected on the ground that the complaint stated there had been no prior domestic violence. The judge ruled that plaintiff would be permitted to testify about prior incidents and that defendant and his attorney would be granted a continuation of the trial, if they desired, to prepare their response to those allegations.
The trial resumed on October 24, 2011. Defense counsel continued cross-examination of plaintiff. Defendant then testified, the attorneys made closing arguments, and the judge placed her decision on the record. The judge found that defendant had harassed plaintiff and that she was entitled to a final restraining order.
On appeal, defendant argues there was insufficient evidence of harassment and the judge erred procedurally by permitting plaintiff to testify about prior incidents. We find these arguments to lack merit.
Plaintiff testified that when defendant was returning the two older children to her home at about 4:00 p.m. on Saturday, September 10, her dog, which weighs eight pounds, barked at defendant, got loose from its leash, and ran toward defendant.
Plaintiff claimed that defendant had abused the dog during the marriage, and the dog did not like defendant. Plaintiff caught the dog before it reached defendant and brought it into the house. Defendant became very angry and began screaming at her about the dog. He threatened to "drop-kick" or "punt" the dog if he ever saw it again.
Defendant argued with her that the dog had scratched their daughter, which plaintiff believed was not true. Defendant called plaintiff a "f***ing idiot" in front of the children. As their six-year-old son started hitting him, defendant used a curse word to describe the dog and said that the boy "should not be a f***ing idiot like his mother." Plaintiff testified that the yelling and screaming in front of her house was loud enough for the "whole block to hear" and that it lasted about ten to fifteen minutes.
Regarding the prior incidents, plaintiff testified about several similar arguments over a period of about two years, some of which also involved the dog. She testified that defendant, a physically large man, put her in fear during such arguments by getting very close to her face and yelling and threatening her. She testified that she had left the marital home while she was nine months pregnant with their youngest child because of her need to escape defendant's intimidating conduct.
Defendant testified that the dog had bitten him many times in the past. That Saturday afternoon, as he was driving the children to plaintiff's home, the three-year-old daughter said that the dog had scratched her, and he then noticed a scratch under her eye. When he arrived at plaintiff's house, he showed the scratch to plaintiff, but she dismissed it as not being caused by the dog. Defendant viewed plaintiff's reaction as branding their child a liar.
Defendant testified that the dog broke away from its leash and came at defendant. He was upset that plaintiff was not controlling the dog and not adequately protecting the children, and he said that he would "punt" the dog if it ever hurt the children. He testified that both parties were yelling at each other. He admitted using curse words but not in his remarks to his son. He denied that he threw the suitcases or the towels at plaintiff, stating that he had dropped them to the ground several feet away from her.
In her decision, Judge Ronny Jo Siegal found that plaintiff had testified credibly about the incident and the prior conduct of defendant and that she was reasonably in fear of him when they argued. The judge entered a final restraining order, which included a provision for supervised parenting time for defendant pending completion of a custody/parenting time investigation to ensure the safety of the children when with defendant at his home in Pennsylvania.
On appeal, defendant argues that the judge erred in her findings and conclusions because plaintiff's conduct on September 10, 2011, was in the nature of ordinary marital contretemps rather than domestic violence. See Corrente v. Corrente, 281 N.J. Super. 243, 248-50 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54-55 (App. Div. 1995). He challenges the credibility of plaintiff in describing the incident, asserting she had a motive to embellish and fabricate as demonstrated by her filing an order to show cause to modify the parenting time arrangement within days of filing the domestic violence complaint. He also cites several of our prior decisions that pre-dated controlling precedents of the Supreme Court in Cesare v. Cesare, 154 N.J. 394 (1998), and State v. Hoffman, 149 N.J. 564 (1997), for the proposition that more egregious conduct than occurred here is required to prove the predicate domestic violence offense of harassment.
In a domestic violence case, the standard of review on appeal is very deferential to the trial judge's findings of fact and the conclusions of law based on those findings. In Cesare, supra, 154 N.J. at 413, 416, the Supreme Court placed trust in the "expertise" of Family Part judges to assess evidence of domestic violence and the need for a restraining order. Regarding the function of the appellate court, the Supreme Court held:
[A]n appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] 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." [Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).]
Defendant fails to address Cesare and this strictly limited standard of review.
A trial judge considering a domestic violence complaint has a "two-fold" task: first, the judge "must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred[,]" Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006), and second, "'whether the court should enter a restraining order that provides protection for the victim[,]'" J.D. v. M.D.F., 207 N.J. 458, 475 (2011) (quoting Silver, supra, 387 N.J. Super. at 126). See Cesare, supra, 154 N.J. at 400.
In making those determinations, especially in a close case such as this involving harassment rather than actual physical battering of the plaintiff, see J.D., supra, 207 N.J. at 475, the parties' prior relationship and past acts of domestic violence must be considered in determining whether a final restraining order should be entered. N.J.S.A. 2C:25-29a(1); Cesare, supra, 154 N.J. at 402.
Here, the trial judge heard the testimony firsthand and observed the parties. As the Supreme Court said in Cesare, supra, 154 N.J. at 413, 416, the trial judge is in a better position than we are to determine whether the evidence proves the predicate offense and the plaintiff's need for a restraining order. The judge made credibility determinations and found that defendant's conduct in the light of prior aggressive actions against plaintiff proved harassment on September 10, 2011, as a predicate act of domestic violence.
The harassment statute, N.J.S.A. 2C:33-4, states:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, 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;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person . . . .
In Hoffman, supra, 149 N.J. at 580, the Court explained that subsection (a) "targets a single communication," in contrast to subsection (c), which "targets a course of conduct." See also J.D., supra, 207 N.J. at 477-78 (explaining scope of harassment under subsections (a) and (c) of statute). In this case, the judge found that defendant's admitted use of coarse language in front of the children and in a public place, and his threats to harm the dog, were a violation of subsection (a) of the statute. The judge did not rely on subsection (b) with respect to defendant's throwing of the wet towels, but, in view of the parties' past relationship, she found that defendant's conduct as a whole constituted communications likely to annoy and alarm plaintiff.
Defendant cites our decision in State v. L.C., 283 N.J. Super. 441, 451 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996), as supporting his assertion that he had no purpose to harass plaintiff but only to protect his children against harm by the dog. A purpose to harass is seldom proven by direct evidence, such as an admission of a purpose to annoy or alarm the recipient of the communication. Rather, a purpose to harass must usually be inferred from the surrounding circumstances. Hoffman, supra, 149 N.J. at 577.
Moreover, a defendant can have dual purposes, to accomplish a legitimate objective but also to alarm and intimidate the other person and to prevent defiance or opposition. In a domestic situation, such a dual purpose can constitute a violation of the harassment statute and a predicate act of domestic violence. Here, although the judge should have explicitly stated a specific finding that defendant harbored a purpose to harass plaintiff, that finding is implicit in the judge's statement of her findings and conclusions.
Defendant argues that the four-day delay in plaintiff's filing the domestic violence complaint and the fact that she did so only after consulting with her attorney indicate she was not truly in fear of defendant but has an ulterior motive in seeking the order, namely, her desire to restrict his parenting time. Plaintiff explained the reason she waited several days to file the domestic violence complaint. She was apprehensive about the effect domestic violence allegations would have on the children, and she wanted to consult with her attorney before moving forward with the complaint. Consultation with an attorney is not indicative of improper motive. It is appropriate for an attorney to advise a client about her rights under the law.
Ultimately, it was the task of the trial judge to assess plaintiff's motives and to determine whether she was in need of a restraining order. Whether a restraining order should be issued depends on the seriousness of the predicate offense, see Cesare, supra, 154 N.J. at 402, on "the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse," and on "whether immediate danger to the person or property is present[,]" Corrente, supra, 281 N.J. Super. at 248; accord Peranio, supra, 280 N.J. Super. at 54. Judge Siegal relied upon sufficient evidence in the record to conclude that defendant's conduct went beyond typical marital contretemps. We find no basis to disturb the judge's conclusions, in accordance with Silver, supra, 387 N.J. Super. at 125-26, that defendant committed an act of domestic violence and that plaintiff was reasonably seeking protection against future similar conduct.
We also conclude that Judge Siegal correctly addressed defendant's objection to evidence of prior acts of domestic violence. She followed precisely the procedure outlined in J.D., supra, 207 N.J. at 478-80, and H.E.S. v. J.C.S., 175 N.J. 309, 324-25 (2003), in granting defendant and his attorney a continuance of the trial so that they could investigate and prepare a response to plaintiff's allegations of prior acts of domestic violence that were not alleged in her complaint. We discern no abuse of discretion in the judge's ruling.
Finally, defendant contends that the judge erred in ordering supervised parenting time when there was no evidence of harm to the children. We find no abuse of discretion in the judge's temporary orders suspending parenting time until the domestic violence case could be heard and then requiring supervised parenting time pending a home inspection of defendant's Pennsylvania residence. Moreover, as defense counsel acknowledged at the time of oral argument before us, the issue is moot because the judge lifted the parenting time restrictions after completion of the investigation and report. On January 3, 2012, an amended final restraining order was entered indicating the lifting of the parenting time restrictions.
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