November 26, 2013
R.L., Defendant-Respondent. R.L., Plaintiff-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket Nos. FV-14-1094-12 and FV-14-1079-12.
Weiner Lesniak, LLP, attorneys for appellant (Joseph M. Freda, III, of counsel and on the briefs).
Smith & Doran, P.C., attorneys for respondent (Rebecca M. Grather, on the brief).
Before Judges Fuentes, Simonelli and Haas.
In these two consolidated cases, appellant L.W. appeals from the June 20, 2012 final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35, and from the June 20, 2012 order denying her application for a FRO. While we affirm the denial of L.W.'s request for a FRO, we are constrained to remand the matter for further consideration and an articulation of reasons for the Family Part's decision to grant a FRO against L.W.
We discern the following facts and procedural history from the record of the bench trial conducted on June 20, 2012. L.W. and R.L. are not married, but they lived together between 1994 and May 19, 2012, and have three teenage sons.
The parties presented contradictory accounts of the nature of their relationship and the May 19, 2012 incident that is the subject of this appeal. R.L. described their entire nineteen-year relationship as "[e]xtremely rocky." For the past three years, he asserted the parties were only living together because they were waiting for their oldest child to graduate from high school. He claimed that, in recent weeks, L.W. had hired a "private detective" to watch him. On the other hand, L.W. testified the parties were still involved in an intimate relationship and she referred to R.L. as "my husband." According to L.W., "[w]e functioned as a wonderful family right up until the [May 19, 2012] incident." At the same time, however, L.W. testified that she recently confronted R.L. with allegations that he had been unfaithful and "begged [R.L.] almost every day to please leave the home."
On May 19, 2012, both parties awoke before 5:30 a.m. R.L. testified that when he went into "my office, " he found L.W. going through his prescription drugs and taking notes. He stated L.W. then "went to her office, which is in the living room" and he could tell "she was really mad . . . ." He went to L.W.'s office to give her the children's passports,  but "[be]cause she was still really mad[, ]" he returned to his office. L.W. came to his office, sat down, and told R.L. she wanted "to talk now." The parties began to argue. R.L. asserted that L.W. "kept using the words husband and wife, she kept using the word marriage." R.L. told L.W., "this is not a marriage." After making this comment, R.L. testified that L.W.'s "eyes glazed over, her face glazed over and she screamed this is not a marriage?" L.W. then slapped him "across the side of the head."
After she slapped him, R.L. testified L.W. "grabbed my computer monitor and threw it on the floor." She then grabbed another monitor and a photocopier and threw them on the floor. As she was reaching for the third monitor, R.L. testified he grabbed his keys and cell phone and went outside. He returned to retrieve his cigarettes and saw L.W. "storming out of the office ranting and raving, she is - - she's literally spitting, this is not a marriage." R.L. testified L.W. said "something about getting a hammer" and then went into the garage. R.L. began to leave the house and, as he approached the front door, he heard L.W. say "something about some - - destroying my office or smashing my office and then screaming, killing you."
R.L. drove to a convenience store, called the police, and was told to return to the house to wait. Officer George Quentz testified he was one of the officers who responded to the home. R.L. told the officer that L.W. "had basically torn apart his office and he did not - - he was basically scared of her." The officer stated L.W. "[w]as not very cooperative with answering questions or telling me what happened." When he went into the office, he found "[i]t was trashed . . . . [T]he office was basically torn apart, computers smashed, things thrown about, that pretty much sums it up."
L.W. initially claimed she "didn't know" what had happened to the computer equipment, but she later told the officer "that she stepped . . . on them as she chased [R.L.] out of the room." The officer did not believe the equipment could have been smashed by someone just stepping on it. L.W. admitted she slapped R.L. Officer Quentz "determined [L.W.] was the aggressor" and arrested her. He also asked R.L. if he wanted to apply for a temporary restraining order (TRO). R.L. went to the police station, spoke to a municipal court judge, and was granted a TRO, based on criminal mischief, N.J.S.A. 2C:17-3, and assault, N.J.S.A. 2C:12-1.
When R.L. returned home, he went into his office to survey the damage. Three computer monitors and the photocopier had been broken. He found "broken coffee cups" and one of his Bose speakers "was smashed." There was "a big hole" in the wall underneath a shelf, a "door jamb" was broken, and the "doorknob had gone right into the wall." R.L. testified the equipment and office were not in this condition when he left the house to call the police after L.W. stated she was going to get a hammer.
When he obtained the TRO, R.L. did not tell the police that L.W. had threatened to kill him. Three days later, however, he amended his complaint to include this threat. He also added past acts of domestic violence to his complaint, alleging that L.W. threatened in the past to do harm to herself and tell the police he was responsible; told him he would get beaten by jealous husbands; put sugar cubes in his gas tank; and threatened to kill him on other occasions. R.L. testified that, prior to January 2012, L.W. had never threatened him and that L.W. never struck him before the May 19, 2012 incident.
L.W.'s account was radically different. She denied arguing with R.L. the night before the incident, although she did question him about his whereabouts that evening. When L.W. woke up on the morning of May 19, 2012, she "went downstairs, I have a desk in the front room where my laptop is and I sat there . . . checking email and you know, waking up." About sixty to ninety minutes later, R.L. came downstairs and "told [L.W.] that it ruined his morning that [she] was already up." L.W. denied being in R.L.'s office or checking his prescriptions. L.W. heard R.L. in the kitchen making coffee. He then returned to L.W.'s office and said something to her and "he was kind of pacing back and forth." L.W. testified R.L. "would walk from his office to where I was and look at me and he would walk back to his office" and then repeat the process. R.L. "eventually" told L.W. "we needed to speak about some things" and she then "followed him into his office."
According to L.W. the parties each sat in a chair a few inches apart. R.L. "immediately started berating" L.W. and told her she "was a terrible mother[.]" R.L. "said that we have never had a good marriage, aren't going to have a good marriage and [L.W.] slapped him." L.W. stated R.L. "immediately got up and threw me into his computer desk and I slammed into it and the computers slammed back and then as I was coming forward, I shoved him away from me into the other side of the wall where there was more equipment." The computer monitor hit the wall and then "hit the floor." She believed she may have "touched a printer and pulled that down as [she] was trying to pull [her]self out the doorway." L.W. stated she did not have "any idea" how the monitors and other equipment "got damaged" and she denied telling R.L. she was going to get a hammer to destroy his office or kill him. Although she consistently described the room where the incident occurred as "his office, " L.W. stated the computers were "family computers" that had been jointly purchased by the couple.
On May 25, 2012, L.W. applied for and received a TRO against R.L., based on harassment, N.J.S.A. 2C:33-4, and assault, N.J.S.A. 2C:12-1. Her complaint stated the incident occurred in "his office." L.W. included a number of incidents of prior domestic violence in her complaint. She alleged that R.L. struck her in the eye in 1993, and threw a toy, striking her in the head, in 1996. L.W. alleged that R.L. dragged her across a parking lot and threw her against a car in 2000; grabbed her throat and threatened to kill her in 2007; and threatened to kill her again in 2011.
In an oral decision, the trial judge found R.L.'s testimony credible and consistent, L.W.'s testimony not credible and inconsistent, and he explained his reasons for these determinations. He concluded "that the incident occurred substantially as [R.L.] testified." Because L.W.'s testimony and allegations were not believable, the judge found that she had failed to meet her burden of proving that R.L. committed an act of domestic violence against her. Accordingly, he dismissed L.W.'s complaint and vacated the TRO she had obtained against R.L.
The judge granted R.L.'s request for a FRO against L.W. on the basis of criminal mischief. He found "that there was an incident of substantial destruction of property by [L.W.] in the house that day" and that she caused "probably thousands of dollars worth of damage to the computer monitors" and other equipment in R.L.'s office. Responding to L.W.'s contention that she was a joint owner of the property she destroyed, the judge found that the property was "a property of, or it was property principally used by [R.L.] and its destruction would be something that was directed in anger against him."
As to whether a FRO was necessary to protect R.L., the judge's findings were less thorough. He stated that the incident "was an explosion in the context of some very strong emotional stressors [and] there is a danger without intervention that it could recur." He further stated:
I do think the very strong emotions and all of the energies that come into this situation [were] again, centering around a relationship that has all of the elements of a marital relationship but, not a marriage certificate and it's coming apart and a party becomes upset by that, that that energy remains present and could be a problem going forward.
At the same time, however, the judge stated, "I think this litigation and the incident itself has dissipated some of that energy or - - or redirected it in some ways." He also stated, "I do feel the need to issue an order [of] protection, although I do so reluctantly[, ] it's almost a - - in a sense as hitting someone when they're down[.]" The judge noted that R.L. had testified concerning prior acts of domestic violence by L.W., but he made no specific findings concerning them, except to say, "I do think there was history that put the current event in context and does amplify the danger going forward." This appeal followed.
On appeal, L.W. contends the judge erred in denying her request for a FRO. She also alleges the judge erred in finding she committed an act of criminal mischief against R.L. and that, even if she had, R.L. failed to establish that a FRO was needed to protect him. We will address these contentions in the order presented.
Our review of a trial court's fact-finding is limited. The "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 (l998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J.Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
In adjudicating a domestic violence case, the trial judge has a "two-fold" task. Silver v. Silver, 387 N.J.Super. 112, 125 (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:25-19[(a)] has occurred." Ibid. (citing N.J.S.A. 2C:25-29(a)). "The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim." Id. at 126. Whether a restraining order should be issued depends on the seriousness of the predicate offense, 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). Cesare, supra, 154 N.J. at 402; N.J.S.A. 2C:25-29(a).
Applying these standards to our review of the arguments raised by L.W., we discern no basis for disturbing the trial judge's decision to deny L.W.'s application for a FRO. The judge specifically found that L.W.'s account of the May 19, 2012 incident was not credible and there is substantial credible evidence in the record to support that finding.
L.W. was the aggressor during the incident, which began when she slapped R.L. in the head. While L.W. claimed the computer monitors and printer fell to the floor when she was struggling with R.L., she had no explanation whatsoever for how the equipment or the walls came to be smashed after R.L. left the house. The photographs of the damage are clearly inconsistent with L.W.'s claim that she did not strike the equipment with a hammer.
We defer to the judge's finding, based upon his assessment of the parties' credibility, that R.L. committed no act of domestic violence against L.W. on May 19, 2012. Therefore, the judge properly denied L.W.'s request for a FRO against R.L.
Turning to the FRO issued to R.L., there is substantial credible evidence in the record to support the judge's finding that the first Silver prong was satisfied because L.W. committed an act of criminal mischief against R.L. N.J.S.A. 2C:17-3 provides in pertinent part that "[a] person is guilty of criminal mischief if he [p]urposely or knowingly damages tangible property of another . . . ." The term "'[p]roperty of another' includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property . . . ." N.J.S.A. 2C:20-1h.
L.W. smashed three computer monitors, a photocopier, a speaker, and coffee cups in defendant's office. She also damaged a door jamb and the walls in defendant's office. L.W. obviously damaged these items "purposely and knowingly" after she became angry with R.L. about his comment that they were not married.
L.W. argues that she was a joint owner of all of the property she destroyed and, therefore, she did not damage the property "of another" as required by N.J.S.A. 2C:17-3. This argument lacks merit. Even assuming that the office and the equipment were jointly owned, L.W.'s acts, as found by the judge, clearly fall within the statutory prohibition. Both parties consistently referred to the room L.W. "trashed" as R.L.'s office. Indeed, L.W. had her own office in another part of the house, where she kept "her laptop." L.W. even referred to the room as R.L.'s office in her complaint. Under these circumstances, L.W. was plainly not privileged to infringe R.L.'s well-defined interest in the property which was maintained and used by him in his office. See N.J.S.A. 2C:20-1h.
Thus, we conclude the record supports the trial judge's determination that L.W. committed the predicate act of criminal mischief, thereby satisfying the first Silver prong.
Because "the Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a" FRO, the judge was required to make specific findings as to whether restraints were necessary to "protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J.Super. at 126-27. On this point, we agree with L.W. that the judge's findings concerning the second Silver prong were incomplete.
The judge made only conclusory findings that "there is a danger without intervention" another incident might occur, and that L.W.'s emotions "could be a problem going forward." The judge made no detailed findings concerning R.L.'s testimony concerning L.W.'s past history of domestic violence against him, other than to state "there was history that put the current event in context and does amplify the danger going forward." However, the judge also stated the problems between the parties "dissipated" after the incident and that he was issuing the FRO "reluctantly." Because of these contradictory findings, we are unable to review whether the second Silver prong was met.
Where a judge has made factual findings and they are supported by the record, we accept them and defer to the judge's expertise. Cesare, supra, 154 N.J. at 411-13. When the judge has failed to make complete findings, our appellate courts conduct an independent review to determine whether there is sufficient evidence to sustain the issue of the order. J.D. v. M.D.F., 207 N.J. 458, 488 (2011). Where an appellate court is "unsure" about the sufficiency of the evidence, however, a remand is appropriate. Ibid.
That is the appropriate course here. Unlike the trial judge, we have not had the benefit of seeing and hearing the witnesses in person. In addition, as we have observed, the judge's explanation concerning the second prong was relatively brief and incomplete. Because we cannot make an assessment on the present record, we remand the matter to the trial judge for further consideration of whether an FRO for R.L. against L.W. is required and a more extensive articulation of his reasons for the conclusion he reaches. We do not suggest a preferred result, but only that the alternative outlined be considered and the judge's decision, one way or another, be more fully articulated in the event of a further appeal. Pending resolution of the remand, the FRO shall remain in place. The remand should be completed within thirty-five days from the date of this opinion.
In sum, we affirm the judge's decision denying L.W.'s request for a FRO against R.L. and vacating the TRO she previously obtained. We remand the judge's decision to grant a FRO to R.L. against L.W. for further proceedings.
Affirmed in part and remanded. We do not retain jurisdiction.