November 29, 2012
R.F.D, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-1115-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2012
Before Judges Fisher and St. John.
Defendant R.F.D., Jr., appeals a final restraining order (FRO) entered against him, and in favor of plaintiff I.L., in this action brought pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Defendant argues that: (1) the evidence was of insufficient weight to permit a finding of harassment; (2) the trial judge did not conduct an analysis or make a finding that the FRO was necessary to prevent further abuse; and (3) the judge's questioning of the pro se plaintiff "crossed the line that separates permissible judicial intervention . . . from improper advocacy." We find no merit in these arguments and affirm.
During the brief trial of this matter, the judge heard the testimony of the pro se parties, as well as plaintiff's seventeen-year old daughter. At the trial's conclusion, the judge found the parties had been in a "long-term relationship" in that they lived together for approximately ten years and had two children. As a result of prior domestic violence proceedings, plaintiff was given temporary possession of their shared residence, and defendant was barred from entering the residence when plaintiff was present; a prior order also prohibited communications except those relating to the children and, only then, by text message or email. The trial judge found plaintiff to be credible and that, in violation of the intent of the prior order, defendant had twice in three days in December 2011 entered the home. The judge also found that on December 14, 2011 -- the second impermissible entry into the home --defendant "shoved" plaintiff into a door. And the judge found that defendant, as he forced his way in, declared that plaintiff could not tell me when I can come into my own fucking house. I pay the mortgage. I'm going to take you down so far you wish you never went through this. I'm a joker. I'm going to get the last laugh. You're nothing but a Spic. Vacate, bitch, bye-bye.
The judge found that defendant's denial of these circumstances was not credible. In addition, the judge found that at the end of August, approximately three months prior to the incidents in question, defendant committed an act of domestic violence when he "put [plaintiff] in a chokehold, picked her up by the neck, [and] threw her against [a] car." The judge also found that, in October 2011, defendant revealed his inability to control his anger by damaging walls and doors of the home, and that, during the same month, he closed a computer "forcibly on [p]laintiff's fingers." In drawing conclusions about the domestic violence that occurred in December 2011, the judge classified defendant's actions as harassment, N.J.S.A. 2C:33-4, including the shoving, which the judge did not view as an assault.
The Supreme Court recently explained why reviewing courts should exhibit great deference to the findings of family judges in domestic violence matters:
In our efforts to be faithful to the strong expressions of our Legislature and to protect the rights of both parties we have vested great discretion in our Family Part judges. We have observed that they are judges who have been specially trained to detect the difference between domestic violence and more ordinary differences that arise between couples, and we have recognized that their findings are entitled to deference. [J.D. v. M.D.F., 207 N.J. 458, 482 (2011) (citing Cesare v. Cesare, 154 N.J. 394, 412-13 (1998))]
Unlike this court, the trial judge here had the opportunity to observe the witnesses as they testified; his credibility findings resulting from those observations are entitled to our deference. Accordingly, we examine the FRO from the initial standpoint that plaintiff's version was credited by the judge and defendant's was not, a point that seems lost on defendant, who argues that we should find plaintiff's testimony "was simply not credible."
The judge also determined that defendant's conduct --particularly in light of the prior history of domestic violence -- was not "ordinary domestic contretemps," Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995), but of such a substantial nature as to warrant entry of the FRO. Defendant has presented no principled reason for our second-guessing of the judge's conclusions as to what occurred between these parties on two occasions in December 2011 or, for that matter, on the earlier occasions in August and October 2011. In keeping with the considerable deference due to such a finding, J.D., supra, 207 N.J. at 482, we reject defendant's first argument.
Defendant next argues that the judge failed to make the additional finding that a restraining order was necessary to prevent further abuse. That is, a judge's finding of an act of domestic violence is only the first of a two-step process; the second step requires a finding that a restraining order "is necessary . . . to protect the victim from an immediate danger or to prevent further abuse." Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006); see also J.D., supra, 207 N.J. at 476; S.K. v. J.H., 426 N.J. Super. 230, 232 (App. Div. 2012). In most cases in which the act of domestic violence is physical in nature, the second step may be inferred from a finding as to the first. In harassment cases, however, family judges should explain why the restraining order is required to prevent further abuse.
Defendant claims that the judge failed to make this necessary finding. We disagree. The judge held that the FRO was necessary "based upon the predicate acts as well as the prior recent history," which, as the judge found elsewhere in his thorough opinion, included defendant putting plaintiff in a chokehold in August and slamming her fingers in a computer in October. In addition, as the judge explained in another portion of his opinion, defendant's forced entry into the residence violated the intent of an earlier consent order. All these circumstances were sufficient to form the basis for the second step of the process described by Judge Fall for this court in Silver.
We lastly reject defendant's third point regarding the conduct of the hearing and the judge's posing of leading questions, finding that argument has insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Indeed, our examination of the transcript reveals that the judge posed very few leading questions and only then for the purpose of ensuring that the witnesses remained focused on the issues at hand. The judge's examination of the witnesses, in fact, was not only representative of his considerable discretion in such matters*fn1 but also a model as to how to conduct a domestic violence trial between pro se parties.