July 18, 2013
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 4, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-0534-13.
Richard F. Klineburger argued the cause for appellant (Klineburger and Nussey, attorneys; D. Ryan Nussey, on the briefs).
Ted M. Rosenberg, attorney for respondent (Mr. Rosenberg and Robert M. Rosenberg, on the brief).
Before Judges Messano and Lihotz.
At the time this matter, filed pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, was presented to the court, the parties were married, living in the same home with their children, and enmeshed in matrimonial litigation. Plaintiff M.J.T. filed a complaint alleging defendant A.V.B. bit her finger during an argument. Defendant concedes contact occurred during their argument, but contends it was accidental and no need for a restraining order was demonstrated. He maintains the trial court failed to make the required findings to support entry of a final domestic violence restraining order. Following our review, we agree that flaws in the judge's factfinding require reversal.
During the final hearing, held on October 11, 2012, plaintiff and defendant, each represented by counsel, testified regarding the September 23, 2012 altercation. Additionally, Cinnaminson Police Officer Francis Rooney and the parties' nine-year-old son, A.B., Jr. testified.
Officer Rooney explained he and four other officers were dispatched to the parties' residence at 7 p.m. He did not interview either party, explaining other officers took their statements, which he described as "divergent." Plaintiff stated, during the argument defendant grabbed her hand and bit her finger. She had a bite mark on her index finger, which was bleeding, and she declined medical treatment. Defendant concurred the parties were arguing, but asserted plaintiff had "grabbed his face and his mouth" and "her finger may have [gone] in" his mouth. As a result, he may have accidently bit her when he was trying to get her finger out of his mouth. Defendant had a scratch on the inside of his lower lip. Both parties were handcuffed as police were unable to determine who was the victim.
As Officer Rooney was returning to the police station, he was informed A.B., Jr. witnessed his parents' altercation. He returned to the residence to interview the child. He commented A.B., Jr. was "unfazed" by the incident and after listening to the child's comments, charged defendant with simple assault.
Plaintiff next testified, stating before she left for work, the Sunday evening in question, she and defendant had a heated argument. Generally, she worked evenings and defendant worked days. Based on an agreement, the parties shared joint legal and physical custody of their children. They had shared the residence, sleeping in separate bedrooms, for approximately three years.
Plaintiff believed defendant had entered her bedroom earlier that weekend and removed a letter from A.B., Jr.'s teacher. She told defendant to return the letter and he responded by yelling, calling her names, and stating he was entitled to the document because it was a story written by their son. Plaintiff went over to their child J.B., who was in the room. She "put [her] hands on his shoulders and . . . turned him to his father and . . . said . . . this is a perfect example of how never, ever to behave." Defendant was angry and went to the basement, where A.B., Jr. was playing. Plaintiff entered the basement and exchanged more words with defendant. She then kissed A.B., Jr. goodbye and returned upstairs to the kitchen. Defendant followed her up the steps and resumed yelling. As the parties stood approximately one to two feet from each other, plaintiff described the events that followed, stating: "I put my hand up with my finger up and said stop talking to me like that in front of the children. . . . He came closer. . . . He sort of lunged. . . . He grabbed my wrist . . . . He bent forward and bit me." She grabbed her phone and called the police. Plaintiff stated she sought hospital treatment after she left the police station.
Plaintiff also noted she had previously made "domestic violence allegations[.]" She asserted she was afraid of defendant and sought a final restraining order removing defendant from the marital home.
On cross-examination, plaintiff admitted she was arrested that evening. Also, the prior allegations of domestic violence she mentioned were dismissed following a hearing.
Next, defendant testified. He stated he was home alone on the weekend. While outside, he noticed plaintiff's bedroom windows were open and knew it was about to rain. Her bedroom was not locked, so he entered, closed the windows, shut off the ceiling fan, and turned off the lights plaintiff had left on. He sent plaintiff a text informing her he shut her windows. As he was leaving, he picked up papers that had fallen on the floor, and noticed one was in A.B., Jr.'s handwriting. Defendant recognized the paper as a past school assignment and removed it from plaintiff's bedroom to read it over. Afterward, he left the school paper downstairs on the kitchen desk. As plaintiff was leaving for work, she confronted him about A.B., Jr.'s paper. He stated she was a "little aggressive" and he recognized she was trying "to draw [him] into an argument" in an effort to "get [him] out of the house[.]" When defendant finally responded to plaintiff's repeated statements, he suggested she should accept his offer to buy her interest in the home and move out. This sparked plaintiff's angry retorts calling him names and attacking him. The argument continued and defendant admitted he called plaintiff names. He became upset when plaintiff involved J.B., so he went to the basement.
Plaintiff followed him to the basement and, after kissing A.B., Jr., returned upstairs while defendant remained in the basement. Defendant then heard plaintiff talking to J.B., telling him he needs to stick up for her when defendant is around. Defendant ascended the stairs, yelling at plaintiff to stop involving the children. She moved quickly toward him as he stood at the top of the basement stairs, and stopped "within an inch or two of [his] face." She stated he could not talk to her that way. He retorted: "Get the hell out[.]" Defendant explained plaintiff "had this nasty look on her face and pushed her hand into my face . . . . It wasn't a hit, it was just a push and she put her hand, two of her fingers ended up in my mouth I think and she like pulled me down a little bit like an inch or two down this way and I bit down on her finger." Defendant stated he did not mean to bite plaintiff but it was "a reaction" to pulling his head downward. He identified a photograph taken by police showing a cut inside his mouth, which he attributed to plaintiff's action of grabbing his mouth and jerking his head. During all of this commotion, defendant noted J.B. was in the living room and A.B., Jr. stayed in the basement.
Although each party demonstrated what occurred while relating his or her respective version of events, no one described the actions for the benefit of the record.
The judge dismissed the parties and their attorneys. The judge asked A.B., Jr. to sit next to her on the bench and interviewed him. A.B., Jr. noted each of his parents and his sister talked to him about speaking to the judge. He also discussed an instance when he lied to his teacher.
When the parties returned, the judge related the conversation she had with A.B., Jr. Critical to this matter, she stated:
he indicated that there was screaming and yelling, he came up from the basement and he was close enough to see what went on and he indicated to me that dad grabbed mom's wrist and somehow the fingers got in the mouth and that's how the injury occurred according to him.
Thereafter, the judge rendered her findings and conclusions as follows:
[T]his is my view of what happened on this day, that [plaintiff] found that her room had been invaded, . . . was very upset that her room had been invaded by her husband and I think she was angry about that and I think that [defendant] . . . didn't respond to her as she would have wanted him to. He refused to answer her at least on three or four occasions. And it was a touch and go situation where both parties just got entangled in really not respecting each other. That's what it comes down to.
But based on what [A.B., Jr.] told me, I think dad was the more aggressive in this case. I think he deliberately bit [plaintiff], . . . causing her injury and I would not be in a responsible position if I said that didn't constitute domestic violence. It certainly does. And that was the extreme. It exceeds contretemps as far as I'm concerned, the injury that was sustained. I don't think she's innocent. I think she probably motivated it by getting in his face. I think he was frustrated.
. . . .
The problem I have is that these parties are going through a divorce and I think that the matrimonial court is a better place for these actions to play out[, ] but I can't ignore a bite on the finger, I can't ignore an injury in the middle of a serious disagreement or argument I should say. So I'm reluctant to do this but I have to determine whether or not [plaintiff] proved her case by way of a preponderance of evidence, whether the [c]ourt should issue a restraining order for her protection . . . .
[I]t's a tough call for me, tough call. I don't want to see the defendant fingerprinted and photographed. I wish there were another resolution but I cannot ignore the injury and so she's proven her case by way of a preponderance of evidence and these folks cannot live in the same house together.
Before finalizing any order, the judge instructed the parties to attempt to resolve the matter by agreement, "for the children's sake." Once it was clear a resolution would not be reached, the hearing continued. After limited argument, where defense counsel informed the judge the prior domestic violence complaints were dismissed without a finding of domestic violence, the judge stated:
Well, the other part of it is that even though there was an adjudication with regard to the prior incidents, just hearing each of their testimony about what has historically taken place is sufficient enough to constitute some degree of prior history. Can't get along, live in same house, don't talk, don't have any communications whatsoever. And, you know, the tension that comes out of that environment affects these children.
And when I look at the totality of the circumstances, these folks cannot live together peacefully, they cannot live together without some outrageous event occurring, particularly when at least on three occasions they had had to consult with the [c]ourt. So I have to enter a restraining order in this matter and again I don't like doing this but I have to do it to preserve the life, liberty and whatever peace can exist in the household.
The judge entered a final restraining order, enjoining defendant's contact and communication with plaintiff; prohibiting future acts of domestic violence; and removing him from the marital residence. Defendant's appeal ensued.
The scope of our review of a trial court's factual findings is limited. D.N. v. K.M., 429 N.J.Super. 592, 596 (App. Div. 2013) (citation omitted). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citation omitted). However, reversal is warranted when a trial court's findings are "so wide of the mark that a mistake must have been made[, ]" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted), including factual findings "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). See also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (discussing "limited" appellate review). Consequently, when a reviewing court concludes there is insufficient evidentiary support for the trial court's findings, we reverse and in most instances are compelled to direct the matter be retried before a different judge. See Ducey v. Ducey, 424 N.J.Super. 68, 71 (App. Div. 2012) (reversing and remanding for retrial "before a different Family Part judge."). Our review of a trial court's legal conclusions is always de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
When determining whether to grant a final restraining order pursuant to the PDVA, the judge must make two determinations. Silver v. Silver, 387 N.J.Super. 112, 125-28 (App. Div. 2006). "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." Id. at 125. Second, there must also be a finding that "'relief is necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29b). In this regard, 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). The determination of whether such an order should be issued must be made "in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment[, ] and physical abuse[, ] and in light of whether immediate danger to the person or property is present." Corrente, supra, 281 N.J.Super. at 248 (citing N.J.S.A. 2C:25-29a(1) and (2)); Peranio, supra, 280 N.J.Super. at 54. 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 (citation omitted).
On appeal, defendant principally argues the trial court's factual findings were flawed. He argues the judge did not make the necessary findings required under the second part of the two-part test and mistakenly relied upon the parties' previously filed complaints alleging domestic violence, even though the complaints were dismissed following trial.
Reviewing this latter assertion, we determine the judge found the parties had a history of domestic violence and "at least on three occasions they have had to consult with the [c]ourt[, ]" a fact influencing her determination there was a need for a final restraining order. We agree with defendant that this finding is unsupported by the evidence in the record. Consequently, the conclusion that both Silver prongs were met cannot stand.
When considering the need for entry of a final restraining order, the court is required to consider the prior history of domestic violence between the parties. N.J.S.A. 2C:25-29a(1); Cesare, supra, 154 N.J. at 402 (citations omitted); H.E.S. v. J.C.S., 175 N.J. 309, 319 (2003) (citations omitted). "[A] particular history can greatly affect the context of a domestic violence dispute, " therefore, "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. "Although a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis." Id. at 402 (emphasis in original). Indeed, "one sufficiently egregious action" may be sufficient to constitute domestic violence "even with no history of abuse between the parties[.]" Ibid. However, when faced with an ambiguous incident, the court must evaluate whether it "qualifies as prohibited conduct, based on a finding of violence in the parties' past." Ibid.
The trial judge expressed ambivalence as to whether defendant's conduct was an act of domestic violence or whether "both parties just got entangled in really not respecting each other." Her reluctance was noted, as she stated "it's a tough call for me, " and she "wish[ed] there was another resolution[.]" Ultimately, the judge determined defendant was the "more aggressive" party. She reached that decision in part by finding he had committed prior acts of domestic violence, based on the prior complaints filed between the parties under the PDVA.
In her findings, the judge identified various disrespectful behaviors and household tension by the parties, largely resulting from their protracted, expensive divorce proceedings. Other specific past conduct included the facts that the parties "[c]an't get along, live in same house, don't talk, [and] don't have any communications whatsoever." We reject these acts as sufficient support because none of them rise to acts of domestic violence. See Corrente, supra, 281 N.J.Super. at 250 (concluding marital contretemps is not domestic violence); Peranio, supra, 280 N.J.Super. at 56-57 (same).
The judge also found the parties had a past history of domestic violence. She pointed to the prior domestic violence complaints, one of which had been filed by plaintiff and one filed by defendant. However, each of these two prior actions was dismissed following a full hearing on the merits. Thus, defendant had not been found to have committed domestic violence. Consequently, the trial judge's factual finding defendant had committed prior acts of domestic violence was groundless.
A party cannot relitigate allegations decided adversely in an earlier domestic violence trial. J.F. v. B.K., 308 N.J.Super. 387, 392 (App. Div. 1998). In this case, we are only told the parties appeared before the court on two prior occasions and the complaints were dismissed upon a finding the conduct did not rise to domestic violence. The record contains no evidence of the nature of the conduct underpinning these allegations, making it impossible to know whether the prior conduct, occurring in 2011 and 2012, was barred by res judicata or collateral estoppel.
The judge's finding that defendant's past conduct evidenced domestic violence, which she used to support her conclusion there was a need to protect plaintiff from further violence, is unsupported. We find no history of past domestic violence in this record.
We discern significant errors occurred in the judge's reliance on facts gleaned from A.B., Jr.'s interview statements, accepting them as "testimony." We again summarize the details relating to the use of the statements.
During the hearing, plaintiff offered A.B., Jr. as her witness. He was accompanied to the courthouse by plaintiff and her family. The trial judge excluded the parties from the courtroom so she, alone, questioned A.B., Jr. The judge began questioning and spoke of the need for A.B., Jr. to tell her the truth, instructing "you have to tell me the truth, no lies." Then she related her knowledge of a lie A.B., Jr. had told his teacher. Thereafter, they discussed several topics, including what A.B., Jr. stated he saw of the biting incident. When the hearing resumed, the judge entered her findings. She made no credibility findings regarding plaintiff or defendant. However, the judge specifically accepted the boy's statements that plaintiff was the victim, notwithstanding other findings suggesting the evidence was in equipoise. The judge identified A.B., Jr.'s "testimony" as the pivotal proof supporting her finding defendant committed an act of domestic violence.
We identify two significant errors regarding the procedures employed by the judge and her admission of A.B., Jr.'s statements as "testimony." First, she never sought or obtained from the child's lips that he understood the need to answer her questions truthfully. See State v. G.C., 188 N.J. 118, 132-33 (2006) (stating with child witness "the clearly preferred procedure would have entailed the use of an oath or oath substitute that acknowledged both the obligation to testify truthfully and that the failure to do so could result in adverse consequences"). Second, and more important, defendant was not permitted the right to challenge A.B., Jr.'s comments. Although no objection to the procedure employed by the judge was voiced at the trial, and defendant has not raised the due process issue on appeal, we deem the matter crucial to fundamental fairness and exercise our power to raise plain error warranting reversal of the October 11, 2012 order. Rule 2:10-2; State v. Zamorsky, 159 N.J.Super. 273, 281 (App. Div. 1978) (citations omitted).
Generally, "[a] trial court's determination of reliability or trustworthiness sufficient to allow admission of evidence should not be disturbed unless, after considering the record and giving the deference owed to the court's credibility findings, it is apparent that the finding is 'clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[.]'" State v. P.S., 202 N.J. 232, 250-51 (2010) (quoting State v. Locurto, 157 N.J. 463, 471 (1999) (internal quotation marks and citations omitted)). When a minor child is summoned to testify, a judge must initially determine whether the child-witness is competent to testify, N.J.R.E. 601, and next consider whether the child-witness comprehends the need to tell the truth. Morrone v. Morrone, 44 N.J.Super. 305, 313 (App. Div. 1957). Absent these requisites, the child's statements cannot be called or treated as testimonial evidence, as they are nothing more than inadmissible hearsay. See R. 801(c) ("'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.").
Even more compelling is the judge's disregard of defendant's due process right to conduct cross-examination. See Tibbs v. Bd. of Educ., 114 N.J.Super. 287, 295-96 (App. Div.) (holding, in the context of a student's expulsion on charge of physical assault upon another student, "not only should the accusing witnesses be identified in advance but also, as a general matter and absent the most compelling circumstances bespeaking a different course, be produced to testify and to be cross-examined"), aff'd, 59 N.J. 506 (1971). Most assuredly, presentation of a child-witness requires sensitivity, and most parents would demur when faced with such a prospect. However, when a child is used to present testimonial evidence regarding an ultimate determination for the factfinder, he or she must be subject to some form of cross-examination. While we do not suggest every child-witness should face the unbridled interrogation of skilled counsel, we are confident that judges may craft procedures acceptable to the parties to assure the child is not subjected to badgering or harshness while nonetheless protecting due process.
The procedure employed in this matter did protect the child, but ignored defendant's fundamental right to check or challenge the child's responses to the court's questions. Defendant testified during the altercation with plaintiff, A.B., Jr. remained in the basement, wearing headphones, engrossed in his video game. Plaintiff claimed he came up from the basement in time to see defendant grab her hand and bite her finger. Defendant had a right to question A.B., Jr. about these events and to explore what A.B., Jr. may have been told by others prior to his appearance in court in order to test the child's credibility, recollection, or bias.
"The issuance of a final domestic violence restraining order 'has serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as "a serious crime against society."'" Peterson v. Peterson, 374 N.J.Super. 116, 124 (App. Div. 2005) (quoting Bresocnik v. Gallegos, 367 N.J.Super. 178, 181 (App. Div. 2004) (quoting N.J.S.A. 2C:25-18)). The quasi-criminal matter must be conducted in a way to preserve and protect a defendant's due process rights. The failure of this proceeding to fulfill that mandate warrants its reversal.
The October 11, 2012 final restraining order is vacated and a new hearing must be scheduled. Pending trial, the amended temporary restraining order entered on October 2, 2012 remains in full force and effect. We also are compelled to direct this matter be assigned to a different Family Part judge for retrial.
Reversed and remanded.