November 8, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-685-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 17, 2012 -
Before Judges Axelrad and Haas.
Plaintiff appeals from denial of a final restraining order (FRO) that she sought against her former boyfriend under the Prevention of Domestic Violence Act of l99l (Act), N.J.S.A. 2C:25-17 to -35. The court concluded plaintiff satisfied the predicate domestic violence act of harassment, N.J.S.A. 2C:33- 4c, but found she failed to satisfy the second prong of Silver v. Silver, 387 N.J. Super. 112, 125, 128 (App. Div. 2006), i.e., that a restraining order was necessary for her protection. Plaintiff challenges the court's failure to make any credibility assessments and specific findings on the second prong in light of her testimony regarding numerous physical assaults by defendant, and argues the record overwhelmingly supports a finding in her favor on that prong and the entry of an FRO. We agree and reverse and remand for entry of an FRO.
The parties were dating at the time of the assaults. Plaintiff obtained a temporary restraining order (TRO) against defendant on November 9, 2011, based on the predicate offenses of criminal mischief and harassment. The complaint alleged a prior history of domestic violence, stating that during the parties' three-year relationship, defendant assaulted her about six times causing various injuries. The complaint also listed a prior domestic violence proceeding -- "FV 01-1197-11 10/17/ll DISMISSED."
At the final hearing on January 11 and 31, 2012, both parties were represented by counsel. The parties testified. They also presented witnesses who testified about the predicate offense found by the court, which is not challenged on appeal. Plaintiff testified she met defendant in November 2008, and they began dating in early 2009. Plaintiff moved next door to defendant in Somers Point in February 2009. Their relationship became exclusive around March 2009, and ended in early 2011. Plaintiff testified at length about how during their relationship she was physically assaulted by defendant. The first assault occurred in June 2009. That day, the parties had entertained friends in their back yards. Later that night plaintiff was taking a shower at her house when she was startled by defendant. He forcibly pulled her out of the shower, down the stairs, twisted her arm, and screamed at her, demanding to know the location of her cellular telephone. During the assault, plaintiff was "totally nude, totally wet." The assault only ended when plaintiff was able to grab a telephone and dial 9-l-l for emergency police assistance. However, even as she was calling the police for help, defendant continued to assault her and knocked the telephone out of her hand.
When the police arrived, plaintiff refused to press charges or pursue a TRO. Instead, she rationalized that the assault was not representative of defendant as he had consumed prescription pain medication and mixed it with alcohol prior to the incident. Although plaintiff had endured pain and had a twisted knee, she chose to continue the relationship with defendant.
The second assault occurred in August 2009 at plaintiff's father's residence in Maryland. Defendant had objected to her taking his car to Starbucks. He tackled her, pushed her down, twisted her wrists, knocked the wind out of her, got her in a wrestling-type hold, and forcibly removed the car keys from her hand. Defendant had not been drinking that day but had been drinking the night before. Again, plaintiff attributed defendant's violent behavior to alcohol issues and did not call the police or seek a TRO.
The third assault occurred later in August 2009, when the parties were again visiting plaintiff's father in Maryland. Plaintiff related that the night before, defendant drank about thirty cans of beer and had given her elderly father a large amount of vodka. Plaintiff confronted him about the incident and an argument ensued, during which defendant shoved plaintiff and pushed her down. Plaintiff again suffered pain and injuries to her wrists and knee but did not call the police or seek a TRO. Rather, she remained in the relationship with defendant.
The fourth assault occurred in January 2010. Plaintiff had been paying for defendant's cable service, and she decided to stop. She went next door and asked him to return the two cable boxes to her. He handed her the first box without incident, which she took to her house. When she returned for the second box, he placed it on the stairs, and when she bent to pick it up, he picked her up and threw her out the door like a "bag of garbage[.]" Plaintiff landed on her instep on the top stair of the deck, and "rolled." She explained, "Oh, boy did it hurt." At the hospital, plaintiff learned she had "ripped the main supporting ligament of [her] left foot" and had a "lisfranc fracture." Her injury required surgery. As of trial, plaintiff was still "having issues with [her] foot." Plaintiff called the police and they got her cable box back. However, she did not file criminal charges or seek a TRO, and remained in the abusive relationship.
The fifth assault occurred in June 2010. Plaintiff was still wearing a boot on her foot as a result of the previous assault. As she was walking over the carpet in defendant's house she almost tripped, and when she pulled up the carpet she found a large sum of cash, precipitating an argument. Plaintiff testified that defendant shoved her to the ground and pushed her around.
The sixth assault occurred in December 2010. Plaintiff had agreed to pay for a cable box for defendant and his daughters over the summer. Since it was three months later than the agreed-upon period, plaintiff asked defendant to return the box to her and he told her to go over and "undo the box, [but] to be careful with the wires." While she was leaving with the box, defendant knocked it out of her hands, pulled her backwards, and pushed her down to the ground. Defendant then dragged plaintiff on the floor and pulled her back to a standing position. Defendant next shoved plaintiff against the door jamb, causing her to have trouble breathing, and then dragged and shoved her through the kitchen and family room to the front porch, continuously twisting her arm. He ultimately threw plaintiff onto the landing, where she hit the post and almost went over the side of the stairs. Plaintiff called the police with respect to this assault.
Plaintiff was bruised. She later sought medical attention. She also decided to document her physical injuries by taking seven photographs about six hours later that were described in detail and marked into evidence. Plaintiff testified all of the injuries depicted in the photographs were caused by defendant during that incident. The first photograph depicted a severe purple bruise on plaintiff's arm, which plaintiff referred to as a "thumbprint." The second photograph showed a deep purple bruise on plaintiff's upper arm where defendant had grabbed her. The third photograph depicted slight bruising on plaintiff's wrist, where defendant grabbed and dragged her. In the fourth photograph, plaintiff is shown having two fingerprinting bruises on her other arm. The fifth photograph depicts faint bruising of "a whole hand mark" on plaintiff's left wrist. The sixth photograph shows another fingerprint bruise on her left arm. The seventh photograph depicts bruising on plaintiff's wrist.
Some time afterwards, the parties resumed their dating relationship. Plaintiff testified that in January 20ll, defendant obtained a TRO against her, which was dismissed a week later.*fn1 The parties spent Valentine's Day at the Borgata. On February 22, 20ll, defendant filed another restraining order against plaintiff. Plaintiff filed a TRO against defendant on March 9, 20ll.*fn2 Plaintiff testified that there were several hearings before the court and in October 20ll, the matter settled and an agreement was placed on the record. The subject complaint and TRO states in the addendum:
10/17/11 both parties dismissed cross complaints with the agreement to not have any contact and leave each other alone. Def began harassing plt immediately after dismissing tro's.
Plaintiff then testified about the predicate offense that occurred on November 8, 2011. Defendant dropped an index card onto her backyard that she recognized as her own, containing her e-mail and computer password information, that had been next to her computer underneath the keyboard. Plaintiff had never given that card to defendant and had never given him permission to access her online accounts. Moreover, plaintiff had been having problems with her online accounts from June 2010 through November 201l. In fact, plaintiff could not even access her account to change her password; "[i]t was like [her] whole identity was changed." When plaintiff received the card from defendant, she felt "so violated[.]" Subsequent to learning that defendant had accessed her online accounts, plaintiff asked a friend for assistance. He testified that her Google account had been compromised and helped her re-establish the account.
Plaintiff expressly advised the court that an FRO was necessary because she was in fear for her life and feared future abuse that defendant might inflict upon her. She also characterized defendant as having "no conscience" and "dangerous." Plaintiff explained she felt she had been "pushed out" of Somers Point -- she could no longer live there and was "not safe." Plaintiff moved out of Somers Point in December 20ll and, at the time of trial, was temporarily caring for her father in Maryland. On rebuttal, plaintiff explained that she intended to permanently reside in New Jersey and was looking to buy property here. She further explained that defendant's brother lived thirty miles from her father in Maryland, so she wanted to make sure that if she was visiting, defendant could not cause harm to her there.
As defendant does not challenge the court's finding with respect to the predicate offense of harassment, we recite defendant's testimony solely with respect to the second Silver prong. Defendant acknowledged that he and plaintiff had an argument over keys at her father's house in Maryland, but claimed she was taking her father's car against her father's wishes. According to defendant, this would occur often. He also acknowledged that in January 2010, plaintiff went to his house to take back her cable box and he decided that although she was paying the bill, he was not going to give it back to her. According to defendant, plaintiff called the police and he gave the officer the box. Defendant also admitted that the parties had an argument regarding money plaintiff found underneath the carpet in his house. In all these instances, however, defendant denied he assaulted plaintiff, either in New Jersey or in Maryland.
On cross-examination, defendant also admitted that in June 2009, he had taken pain killers and mixed them with alcohol, but denied having an altercation with plaintiff that evening. He did acknowledge that "[t]he police were called numerous times." When asked if it was his testimony that he "never put [his] hands on [plaintiff] in August 2009?" defendant responded, "To the best of my recollection I don't remember." He also generally denied causing any of the bruises depicted in the photographs.
Looking "in a broader sense of what was going on between these two parties," the court found defendant's act of dropping the index card containing plaintiff's personal internet information onto her property constituted harassment under N.J.S.A. 2C:33-4c, as it "was done for the purpose of annoying and alarming" plaintiff. The court then concluded there was no need for an FRO because plaintiff moved to Maryland to care for her ailing father, and even though she planned to buy a home in New Jersey, there was no evidence she would be residing in Somers Point, let alone next door to defendant. The court further reasoned that the protections afforded by an FRO were unnecessary because the parties were not married, did not own property together, did not have children together, and should be able "to move on from here." He admonished the parties, stating they "can't be coming back to Court with - with judges and lawyers over this relationship. It's . . . done."
This appeal ensued. On appeal, plaintiff argues although the court properly found defendant committed the predicate act of harassment under N.J.S.A. 2C:33-4c, the court erred in finding the entry of an FRO was unnecessary to protect plaintiff from immediate danger or further acts of domestic violence under Silver. Plaintiff urges that the court's failure to consider the extensive history of domestic violence in the form of six assaults over the parties' two-year relationship, corroborated by photographic evidence, constituted reversible error. Plaintiff also asserts error in the court's failure to consider defendant's immediate harassment of plaintiff after both parties dismissed their cross-TROs by mutual agreement on October l7, 20ll. See S.D. v. M.J.R., 415 N.J. Super. 417, 440 (App. Div. 2010) (in reversing and remanding for entry of an FRO, finding it significant that "the violence resumed on the very first night of the parties' reconciliation," and after the defendant had made assurances he would not engage in further acts).
In a non-jury case, we generally defer to the trial judge's findings of fact, which "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (l998). See also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974). We will not disturb these findings on appeal unless the trial judge's findings are "so wholly insupportable as to result in a denial of justice[.]" Rova Farms, supra, 65 N.J. at 483-84 (internal quotation marks and citation omitted).
We are not persuaded by defendant's argument that we should defer to the trial judge's findings and infer from the record the judge's credibility assessments and findings with respect to the second Silver prong. Nor are we persuaded that plaintiff did not demonstrate a need for an FRO.
In Silver, supra, 387 N.J. Super. at 126, 128, we held that a judge considering a complaint for a domestic violence restraining order has a "two-fold" task: "[f]irst, 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"; and second, "whether a domestic violence restraining order is necessary to protect [a] plaintiff from immediate danger or further acts of domestic violence." 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 v. Corrente, 281 N.J. Super. 243, 248 (App. Div. l995). See also Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. l995); N.J.S.A. 2C:25-29(a).
Moreover, "[b]ecause a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard." Cesare, supra, 154 N.J. at 405. A defendant's prior abusive acts should be considered "regardless of whether those acts have been the subject of a domestic violence adjudication." Ibid.
The judge's ruling raises several areas of concern that warrant reversal and remand to permit the entry of an FRO. The judge's determination here was conclusory and not anchored in specific findings of fact. Although the judge appeared to consider the totality of the parties' relationship in finding the predicate act of harassment, he appeared to ignore plaintiff's testimony regarding the numerous acts of violence committed by defendant, and the photographs depicting injuries she testified were caused by defendant, in assessing whether plaintiff was in need of FRO protection.
Contrary to defendant's assertion, the judge's silence on this issue and the ultimate decision not to issue an FRO cannot be construed logically as crediting defendant's general denial of any physical violence. It is of no moment that plaintiff did not corroborate her testimony with that of police officers or physicians, even assuming such testimony would have been admissible, because the judge made no credibility determination with respect to either of the parties.
We are also concerned by the judge's comments that appeared to manifest an unnecessarily dismissive view of the apparent domestic violence cycle involved in the parties' relationship and, in doing so, misconstrued the policy behind and purpose of the Act. According to the Legislature, the Act was enacted "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Although plaintiff did not testify to additional acts of physical violence after December 2010, we still find it significant to the issue of whether an FRO should have been granted that defendant taunted plaintiff by revealing he had access to her personal internet passwords, which the judge found to constitute the predicate offense of harassment under the Act, shortly on the heels of October 17, 20ll mutual dismissal of the cross-TROs and mutual agreement of no contact. Taken in the context of the entire record, the index card incident demonstrated a vindictive, controlling behavior on the part of defendant, removing it far from the realm of "domestic contretemps." See Corrente, 281 N.J. Super. at 248-50; Peranio, supra, 280 N.J. Super. at 54-56.
The second Silver prong does not require plaintiff to live next door to defendant or even to reside in the same town as defendant. The judge already determined plaintiff was a victim of domestic violence and defendant was an abuser. Plaintiff provided ample testimony that she was afraid of defendant, who had physically assaulted her, and was "dangerous." She also continued to remain in a tumultuous relationship with him and demonstrated a reluctance to press charges or seek a TRO on many occasions. Additionally, plaintiff asked the court for an FRO as protection against defendant in New Jersey, where she intended to purchase a house, or in Maryland, where each had relatives.
Viewing the evidence as a whole, we are convinced plaintiff satisfied the second Silver prong, and the judge was mistaken in not issuing an FRO to protect plaintiff from future abuse and in dismissing plaintiff's domestic violence complaint. We therefore reverse and remand the case for entry of such an order.
Reversed and remanded for entry of an FRO.