May 23, 2013
K.D.F., Defendant. K.D.F., Plaintiff-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2013.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket Nos. FV-09-1980-12B and FV-09-1981-12B.
Kim & Bae, P.C., attorneys for appellant in FV-09-1980-12B (Wanda Molina, of counsel and on the brief).
Respondent in FV-09-1980-12B has not filed a brief.
Before Judges Sabatino and Maven.
This appeal arises out of cross-complaints for restraints sought in the Family Part under the Prevention of Domestic Violence Act ("PDVA"), N.J.S.A. 2C:25-17 to -25, by two adult female roommates, K.D.F. and R.I.W. On February 9, 2012, the parties had an argument at their apartment. The argument was the culmination of a long-standing disagreement over replacing another roommate, K.D.F.'s sister, and also about R.I.W.'s boyfriend, who was also living in the apartment.
The argument started with name-calling and escalated into a physical altercation with each pulling the other's hair and K.D.F. striking R.I.W. The hair-pulling was observed by R.I.W.'s boyfriend. At some point, R.I.W.'s nose began bleeding. Police were called and K.D.F. was arrested.
After the altercation, R.I.W. obtained a temporary restraining order ("TRO") against K.D.F., from a Family Part judge, and gained exclusive possession of the apartment. Approximately two days later, K.D.F. likewise obtained a TRO against R.I.W. from a different Family Part judge. The second judge modified the prior TRO to switch possession of the apartment to K.D.F. because K.D.F. had lived there first.
On March 1, 2012, both parties appeared, pro se, before the Family Part at a joint trial on their competing complaints. The court heard testimony from both parties, R.I.W.'s boyfriend (whom R.I.W. called as a witness), and an upstairs neighbor (whom K.D.F. called). After considering the proofs, the trial judge concluded that both parties had committed an assault upon one another. The judge entered a final restraining order against each of them. R.I.W. moved out of the apartment at the court's direction.
Now represented by counsel on appeal, R.I.W. raises a variety of arguments in an effort to set aside the FRO against her. R.I.W.'s brief asserts that she is a registered nurse, and she is concerned that the outstanding FRO will have an adverse impact upon her nursing license and employment. K.D.F. has not filed her own appeal, nor has she filed an opposing brief.
In particular, R.I.W. argues that (1) the trial court committed reversible error by not warning her before the trial about the serious consequences of a restraining order under the PDVA; (2) the court erred in failing to advise her that she could retain counsel; (3) the court should not have granted possession of the apartment to K.D.F.; (4) the court should have allowed her to amend her complaint and amplify her testimony to include other alleged prior acts of domestic violence by K.D.F.; and (5) the evidence was insufficient to support the issuance of the FRO against R.I.W. Upon careful consideration of these arguments, we affirm.
To obtain an FRO under the PDVA, a complainant must establish two key elements by a preponderance of the evidence. First, a complainant must prove that defendant committed one of the predicate offenses, as enumerated in N.J.S.A. 2C:25-19(a). Here, the predicate offense established against both parties is assault, N.J.S.A. 2C:12-1, which is one of the enumerated offenses under N.J.S.A. 2C:25-19(a). Second, if a predicate offense is proven, the complainant must also show that a restraining order is necessary for her protection. Silver v. Silver, 387 N.J.Super. 112, 126-27 (App. Div. 2006); see also J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011); L.M.F. v. J.A.F., Jr., 421 N.J.Super. 523, 536 (App. Div. 2011).
In reviewing an FRO issued by the Family Part following a contested trial, our scope of review is limited. The Family Part's findings are binding on appeal, "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is particularly appropriate in cases like this, where the evidence is largely testimonial in nature and hinges upon a court's ability to make assessments of credibility based on its observation of the testifying witnesses. Id. at 412. A trial judge, rather than an appellate court, has a better opportunity to evaluate credibility. Ibid.; see also S.D. v. M.J.R., 415 N.J.Super. 417, 429 (App. Div. 2010).
We also must defer to the expertise of Family Part judges, many of whom routinely hear numerous domestic violence cases. Cesare, supra, 154 N.J. at 413. Given that expertise and repeated occasion to preside over such cases, we will not disturb the "'factual findings and legal conclusions of the trial judge unless [we are] 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. of Am., 65 N.J. 474, 484 (1974)).
Applying these standards, we discern no basis to interfere with the trial judge's factual findings and his decision to issue mutual final restraints here under the PDVA. Although appellant has a differing interpretation of the events in question, there is substantial credible evidence in the record to support the judge's ultimate conclusion that both parties had mutually assaulted one another, and that reciprocal restraints were warranted to prevent a further altercation. To be sure, R.I.W. characterizes K.D.F. as the initial aggressor, but the judge had a reasonable evidentiary basis to treat both fighting women as wrongdoers. The dual FROs were not against the weight of the evidence.
We also reject the various procedural arguments raised by appellant. Although the trial judge did not recite on the record the numerous consequences of an FRO under the statute, he was not required to do so. Moreover, the TRO form itself, which was served on both parties before the trial, mentions several of the order's serious potential adverse consequences, including potential arrest and incarceration if the restraints are violated.
There is likewise no merit to appellant's contention that she was somehow deprived, essentially by the court's silence on the subject, of her right to retain counsel to represent her at the FRO trial. Recently, in D.N. v. K.M., 429 N.J.Super. 592, 606 (App. Div. 2013), we concluded that due process "[does] not require the appointment of counsel for indigents presenting or defending a private party's civil domestic violence action, " because the purpose of the PDVA is remedial, and not punitive in nature. This is not a criminal case, as to which, by contrast, a constitutional right to counsel under the Sixth Amendment applies. See, e.g., State v. Hrycak, 184 N.J. 351, 358 (2005).
The trial court did not manifestly abuse its discretion in giving K.D.F., the original tenant on the lease, possession of the apartment rather than R.I.W. See N.J.S.A. 2C:25-29(b)(2) (noting the trial court's discretion to award exclusive possession of a residence as a remedy following the hearing). The court's rationale of granting possession to the tenant who had been first to occupy the leased premises is not arbitrary. In fact, R.I.W. testified at the trial that she had already signed a lease for other quarters, which indicates that she was not prejudiced by the court's final decision as to who would remain in the apartment.
Furthermore, the court did not abuse its discretion in declining to allow R.I.W. to add prior incidents of alleged domestic violence that had been omitted from her complaint. An adjournment to grant leave to amend the complaint to assert new allegations, although it can be done to prevent a defendant from being ambushed at trial, is not mandatory. See H.E.S. v. J.C.S., 175 N.J. 309, 324-25 (2003). In any event, the court substantially permitted appellant, and for that matter, K.D.F., to testify about various prior incidents that provided a context to the violence that erupted on February 9, 2012.
We are cognizant of appellant's professional employment and her concerns about the ongoing FRO causing her reputational or other harm. If appellant believes that the court-ordered restraints against her are no longer needed, nothing in this opinion precludes her from filing a motion in the Family Part seeking to dissolve them, under the standards expressed in Carfagno v. Carfagno, 288 N.J.Super. 424, 434-35 (Ch. Div. 1995).