October 29, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-455-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2012
Before Judges Sabatino and Fasciale.
In this unopposed appeal, defendant C.C.C. appeals from a September 20, 2011 final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35.*fn1 We reverse and remand for a new FRO hearing.
The parties dated for "[a] couple of years on and off." On September 6, 2011, plaintiff filed a domestic violence (DV) complaint and obtained a temporary restraining order (TRO) against defendant based on her allegation that on September 5, 2011, defendant committed the predicate acts of harassment, N.J.S.A. 2C:33-4, and stalking, N.J.S.A. 2C:12-10. The DV complaint also references a prior act of domestic violence that occurred on August 13, 2011.*fn2
On September 11, 2011, defendant violated the no contact provision of the TRO by emailing plaintiff. On September 12, 2011, police officers arrested defendant and charged him with fourth-degree contempt, N.J.S.A. 2C:29-9b.*fn3 Defendant made bail and was released.
On September 20, 2011, the parties appeared pro se for the FRO hearing. Plaintiff testified that at 5:00 a.m. on September 5, 2011, defendant showed up drunk where she and her boyfriend had been staying, and screamed that he would "beat up [her boyfriend]." The police arrived, towed defendant's car, and drove him home. The next day, plaintiff obtained the TRO.
Plaintiff also testified about the August 13, 2011 incident mentioned in her DV complaint. Plaintiff stated that she had decided to end the relationship, leave defendant's home where she had been staying, and have one last dinner together. Plaintiff informed her boyfriend about her dinner plans with defendant, and she left with defendant as planned. On their way to dinner, defendant screamed at plaintiff that her boyfriend did not deserve her. Defendant stopped the car, she got out, and he then grabbed her wrists. She returned to the car, they had dinner, and he drove her back to his house. She moved out on August 13, 2011.
The judge then elicited testimony from plaintiff regarding several incidents not mentioned in the DV complaint. For instance, plaintiff stated that on January 20, 2011, defendant grabbed her legs and held her down, on other days she "observed [defendant communicating online with other women] many times," over a two-year period he hit her "[m]aybe ten" times, and that defendant subjected her to emotional abuse "that would take too long to explain." The September 6, 2011 TRO did not mention any of these incidents. The judge also permitted plaintiff to produce a photograph dated June 20, 2011, depicting bruising on her body.
Defendant attempted to refute plaintiff's testimony regarding the incidents not mentioned in the DV complaint. For instance, he attempted to explain that plaintiff was in Buffalo on January 20, 2011. The following colloquy occurred between the judge and defendant:
Court: What proof do you have that she was in Buffalo [on January 20, 2011]?
Defendant: She wasn't living with me. She didn't come back until March.
Court: [C]an you submit anything . . . that she was, in fact, in Buffalo on that date? Defendant: I can go to the . . . [p]olice because . . .
Court: No, you're not going anywhere. We're having a final hearing in this matter. Defendant: All right.
Court: Each side has a burden of proof.
The judge allowed plaintiff to reference another photograph to demonstrate that she was present in his home on January 20, 2011. The judge then dismissed plaintiff's allegation that defendant stalked her, determined that defendant harassed her primarily because defendant violated the TRO, and entered the FRO. This appeal followed.
On appeal, defendant argues that the FRO judge erred by (1) permitting plaintiff to testify and introduce photographs into evidence about incidents not mentioned in the DV complaint; (2) failing to offer an adjournment to allow defendant an opportunity to rebut plaintiff's testimony that went beyond the four corners of the DV complaint; (3) misapplying the burden of proof; (4) relying on predicate acts that a previous judge had dismissed; and (5) failing to make appropriate findings of fact and conclusions of law regarding the September 5, 2011 incident mentioned in the DV complaint.
Trial court fact-finding is "binding on appeal when supported by adequate, substantial, [and] credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The trial court sees witnesses firsthand and "'has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting D.Y.F.S. v. E.P., 196 N.J. 88, 104 (2008) (internal quotation marks omitted)). We give additional deference to factual findings of the family courts because they have special expertise, ibid., and we do not second-guess the exercise of sound discretion, Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
Nonetheless, when determining whether to grant an FRO pursuant to the Act, the judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006); see also Cesare, supra, 154 N.J. at 402-05. "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, supra, 387 N.J. Super. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.
Here, although the FRO judge mentioned that plaintiff had the burden of proof, he also required defendant to prove his case. The judge stated to defendant that in terms of your burden of proof . . you've submitted nothing to this court . . . regarding your position. There's no proof of anything that you've established in this case[,] as in contrast to the plaintiff who has, in fact, produced pictures as well as documents of email about the state of affairs.
However, it is not defendant's burden to disprove that the predicate act occurred. Id. at 125. This error alone warrants reversal.
Regarding the first prong of Silver, whether a predicate act was proven, the judge focused on the incidents not mentioned in the DV complaint. Moreover, instead of making findings of fact and conclusions of law concerning what had occurred on September 5, 2011, the judge relied on the email that defendant sent after the TRO was issued.
Trial judges may not "'convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.'" J.D. v. M.D.F., 207 N.J. 458, 478-79 (2011) (quoting H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003) (internal quotation marks omitted)). By questioning defendant about the January 20, 2011 incident, and eliciting testimony about the ten other alleged incidents of hitting and emotional abuse, the judge expanded the allegations in the DV complaint and denied defendant due process. Id. at 478; H.E.S., supra, 175 N.J. at 321-22.
Finally, there must also be a finding that "'relief is necessary to prevent further abuse.'" J.D., supra, 207 N.J. at 476 (quoting N.J.S.A. 2C:25-29b); L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 536 (App. Div. 2011). It is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). Although this 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." Silver, supra, 387 N.J. Super. at 127. Here, the FRO judge found that the FRO was necessary to prevent "further abuse." Although the judge might ultimately be correct, his finding was based on incidents not mentioned in the DV complaint or TRO.
We vacate the FRO and remand for a new FRO hearing, to be conducted on an expedited basis no later than December 1, 2012, with fresh proofs. In advance of that hearing, plaintiff may amend her complaint to place defendant on proper notice of any additional prior incidents that she contends are relevant. Because the FRO judge made credibility findings, we direct that a different judge conduct the FRO proceeding on remand. Pending the scheduling of the hearing, the previously-issued TRO will remain in place. We do not retain jurisdiction.