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D.N v. K.M

January 24, 2013

D.N., PLAINTIFF-APPELLANT,
v.
K.M., DEFENDANT-RESPONDENT.
K.M., PLAINTIFF-RESPONDENT,
v.
D.N., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket Nos. FV-03-876-12 and FV-03-864-12.

The opinion of the court was delivered by: Lihotz, J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 11, 2012

Before Judges Lihotz, Ostrer*fn1 and Kennedy.

The opinion of the court was delivered by LIHOTZ, J.A.D.

These back-to-back matters, consolidated for the purpose of this opinion, challenge Family Part orders in two cases arising under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We will recite the common facts and history of the matters, then address the legal issues presented on appeal.

These unmarried parties, D.N. and K.M., resided together and have a teenage child. In contemplation of the termination of their relationship, they executed an October 25, 2011 consent order. The parties agreed to share joint legal custody of their child and named K.M. as the parent of primary residence. D.N. agreed to attend counseling with the child and, otherwise, to enjoy parenting time supervised by her adult son from a prior relationship. K.M. was granted exclusive possession of the previously shared Evesham Township residence, as he alone held title to the realty, and D.N. affirmed she would provide a convenient date and time to remove her belongings.

On December 7, 2011, K.M. filed a complaint under the Act, alleging D.N. committed acts constituting assault and harassment on December 6, 2011 (K.M.'s case). The complaint listed prior domestic violence cases involving the parties, which had been dismissed, and requested the entry of a temporary restraining order (TRO) pending final consideration of his request that the restraints be made permanent.

The following day, D.N. filed a complaint under the Act (D.N.'s case). She alleged that on December 6, 2011, K.M. committed acts constituting assault, and she too sought entry of a TRO. D.N.'s complaint also included references to prior incidents of domestic violence, occurring between April 10 and September 11, 2011.

In separate ex parte proceedings, different Family Part judges reviewed the parties' respective complaints and requests for TROs. After considering the complaints, the judges entered orders, including temporary restraints, and the cases were listed for trial on the same day before a single judge.

On December 22, 2011, K.M. appeared with counsel and D.N. appeared representing herself. The judge considered the related matters in the same proceeding. K.M. testified first in support of his claims, and when he concluded his case, D.N. responded and testified in support of the allegations in her complaint.

After hearing the testimony of each party, the trial judge delivered an oral opinion. In D.N.'s case, the judge concluded the evidence was insufficient to support the claim of assault and, therefore, dismissed D.N.'s complaint. Addressing K.M.'s case, the judge concluded D.N.'s conduct constituted harassment and there was a need to enter a final restraining order (FRO) to prevent future domestic violence. Two orders were entered memorializing these determinations. D.N. appealed from each order.

D.N. challenges the judge's findings and conclusions, specifically maintaining her evidence proved she suffered an assault and contending the evidence in K.M.'s case failed to show the necessity of entering an FRO for protection from future abuse. Moreover, D.N. presents procedural challenges, arguing the trial court's conduct of the final hearing[s] brings into sharp focus the need . . . to determine once and for all that a defendant in a domestic violence hearing is entitled to counsel paid by the taxpayers of the State of New Jersey and that firm, standardized guidelines need to be established for a trial court to follow before a defendant can be considered to have made a knowing and intelligent waiver of counsel at the final hearing in a domestic violence matter.

D.N. advances a similar argument in the appeal of the order dismissing her case. She maintains a plaintiff-victim in a domestic violence case is entitled to counsel paid by the taxpayers of the State of New Jersey and asserts standardization of court procedures must be formulated when considering a waiver of counsel.

In our review of a trial court's order entered following trial in a domestic violence matter, we grant substantial deference to the trial court's findings of fact and the legal conclusions based upon those findings. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). In Cesare, supra, the Supreme Court placed trust in the "expertise" of Family Part judges and their ability to assess evidence of domestic violence and determine whether a restraining order is necessary. 154 N.J. at 413, 416. Similar deference is accorded factual findings of those judges following an evidentiary hearing. Id. at 411-12 (citations omitted). In addressing the function of the appellate court, the 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 (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

We will address D.N.'s challenges raised in these two matters, reviewing whether the judge erred in entering the orders, including whether the court's findings are supported by the evidence; whether indigent litigants in domestic violence matters have a due process entitlement to appointed counsel; and whether the trial judge adequately inquired of D.N. to confirm she did not desire legal representation to assist in these trials.

Here, D.N. testified she stopped her car at the child's bus stop and then left when K.M. appeared in his vehicle. K.M. followed her and the two pulled into a Walmart parking lot, where an argument ensued. K.M. accused D.N. of taking the child's cellular telephone, which she denied. K.M. shouted he was going to call the police and D.N. climbed onto the running board of his truck. Although K.M. stated he was leaving, D.N. did not step off the truck. K.M. moved the vehicle. As a result, D.N. asserted she was struck by the truck's side mirror and fell off the truck. K.M. agreed D.N. stepped on his truck, but disputed D.N. was injured, stating he began to pull away slowly and D.N. just stepped off the truck. As he pulled away, he viewed D.N. in his rear-view mirror, standing in the parking lot with her hands raised in the air. D.N. did not suggest she required medical attention or explain the nature of any injury.

The judge noted the parties offered different versions of the events and concluded there was "insufficient evidence" to sustain a finding D.N. suffered an assault. The judge stated: "I don't think that there was any evidence that she was injured or that she was struck by the side mirror or anything of that nature[.]" The trial judge therefore dismissed D.N.'s case.

Regarding K.M.'s allegations, the judge found D.N. went to K.M.'s home, notwithstanding the prior consent order granting him exclusive possession of the home. When K.M. spied her peeking in his window, he opened the front door and demanded she leave. The judge found D.N. then pushed K.M., and "punched him, smacked him in the face at least several times." The judge noted D.N., by her own admission, violated the provision of the consent order that granted K.M. exclusive possession of the residence. The court placed particular emphasis on the fact D.N. had recently executed the consent "order knowing full well that the exclusive possession of the property was in [K.M.]'s [control]. . . . She went to the house no matter what[.]"

The judge determined D.N.'s conduct met the elements of harassment. Further, the parties' past history of domestic violence justified the need for protection from future abuse by entry of an FRO pursuant to the Act.

While the judge could have stated more, giving the deference we must, we are satisfied the findings sufficiently support the court's conclusions. The judge's comments state D.N. failed to prove she suffered an injury, which implied her testimony was not credible, and that she failed to sustain her allegations of assault. Accordingly, the complaint in D.N.'s case was properly dismissed.

On the other hand, the judge believed K.M.'s assertion of being slapped by D.N. Such conduct fits squarely within the requirements of the harassment statute, which provides in relevant part: "[A] person commits a petty disorderly persons offense if, with purpose to harass another, [s]he . . .

[s]ubjects another to striking, kicking, shoving, or other offensive touching[.]" N.J.S.A. 2C:33-4b. Because the record supports the trial judge's findings that K.M. sufficiently proved, by a preponderance of the credible evidence, a predicate act of domestic violence had occurred and that there was a need to enter a restraining order to provide protection, Silver v. Silver, 387 N.J. Super. ...


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