Opinion
DOCKET NO. A-5504-13T3
08-19-2015
C.C., Plaintiff-Respondent, v. R.C., Defendant-Appellant.
Daniel M. Rosenberg argued the cause for appellant. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-1654-14. Daniel M. Rosenberg argued the cause for appellant. Respondent has not filed a brief. PER CURIAM
Defendant R.C. appeals from both a final restraining order (FRO) issued pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, and from an order denying his motion for a rehearing. For the reasons that follow, we reverse and remand for a new hearing.
When the parties divorced in October 2013 after a twenty-one-year marriage, the judgment of divorce stated that they could continue to live together with their children in the marital home pending its sale. They were both residing in the home on Sunday, May 18, 2014, when the incident occurred that resulted in each filing a domestic violence complaint against the other. In her complaint, plaintiff charged defendant with assault and specified the following details to support her charge:
Defendant has not appealed from the dismissal of his domestic violence complaint. --------
05/18/2014 4:00 P.M.
Defendant started moving things out of the garage. (He told her in the past that he will take anything out of the house that he wants and that that would be the only way that he would sign their agreement.) [The] parties began to argue about him moving things out. Defendant began screaming at plaintiff and calling her a selfish bitch and other names. He was screaming and spitting in her face. Plaintiff left and defendant began following her while still screaming at her. Defendant took a small basketball and threw it into the back of plaintiff's neck from [four] feet away, knocking her down to her knees. Plaintiff called the police, defendant later came back home after plaintiff was told that he was not going to be back at the house that night. He started to scream at her again. Plaintiff packed a bag and left the house for the night.
5/4 — Defendant shoved plaintiff across the laundry room causing plaintiff to hit the wall, took all of her clothes out of the washing machine, and put his in. Defendant verbally abuses plaintiff daily. He calls her names, tells her she is a piece of crap and other obscenities.
On the form complaint, after the space reserved for the details of the domestic violence acts and the check boxes for designating which crime was committed, there were seven pre-printed questions. The first question asked if there had been any prior history of domestic violence, reported or unreported, and requested an explanation. In response, plaintiff stated:
Plaintiff sometimes is not able to take a shower in her own home because the shower is in the master bedroom where defendant sleeps. When plaintiff tries to take a shower, defendant walks right in the bathroom. He has no concern for her privacy and says that it's his house and he will do what he wants.
[Six] months ago — Defendant tried to rape plaintiff. He held her down and tore all of her clothes off. Defendant was not able to do anything because plaintiff was moving around so much and screaming.
Approximately [one] year ago — Defendant shoved plaintiff['s head] into a wall. Plaintiff ended up having to go to the hospital.
Whenever there is [an] argument[,] defendant takes out his pocket knife and flips it open.
Based on plaintiff's complaint, a temporary restraining order (TRO) was issued against defendant. The TRO was granted on Monday, May 19, 2014 at 12:09 p.m. At 4:48 p.m. on the same day, defendant signed a domestic violence complaint and a TRO was entered against plaintiff which, among other things, barred her from returning to the marital residence.
The trial court conducted a hearing on the parties' complaints eight days after they were issued. Plaintiff and defendant were the only witnesses. Plaintiff testified that on the day of the incident, defendant was moving items out of the garage. She and he had been arguing, because he said he would not sign a contract to sell the house if she did not "allow him to take anything and everything in the home that he wanted." According to plaintiff, defendant called her vulgar names, claimed she wanted him to "just walk out of here with no money," and said he was allowed to take everything that he wanted from the home.
The plaintiff testified she realized she would gain nothing from the argument, so she began to leave. She walked out of the garage, out the back door of a laundry room, and toward a barn. She testified:
[a]nd [as] I was walking down the pathway out of the laundry room, . . . he followed me. He was right behind me like maybe four feet. And the next thing I know, I'm hit in the back of the head - - well, actually my neck, with a ball with - - it was a small basketball[. . . .] And it knocked me to my knees.
Plaintiff got up and realized defendant had thrown the ball at her "as hard as he could from like four feet." Plaintiff threatened to call the police. She claimed the ball caused her pain, she continued to have problems with her shoulders and neck, but she had not seen a doctor. The EMTs did respond on the day it happened, but she refused treatment because she had no health insurance.
When the police arrived, plaintiff showed the officer the ball and he picked it up. According to plaintiff, she accompanied the police to the station with the intention of filing a complaint, but at the station, the police said she would first have to speak with the Domestic Violence Bureau so she returned home without filing a complaint.
When she arrived at the house, defendant started yelling at her again and saying she was ridiculous. To avoid more arguments, she packed a bag and left and went to her mother's home for the evening. Plaintiff claimed the police told her that defendant was allowed to return to the home because he lived there.
Plaintiff next testified about the second incident. Her clothes were in the dryer and defendant wanted to do laundry. He removed her clothes from the dryer, put them in a basket, and put his clothes in the dryer. When she attempted to take his clothes out of the dryer and put them in the washer, he shoved her out of the way and he pushed her across the room into the wall. Although the incident caused her pain, she did not call the police and did not go to the doctor because she did not have health insurance.
Plaintiff explained that even though she was in the same home as defendant, she tried to stay away from him as much as possible. She also volunteered that he "love[d] to take his pocket knife . . . out of his pants and flip it in and out in an intimidating manner." Plaintiff said she "just never [knew] what he [was] going to do." Lastly, plaintiff testified that defendant was always calling her names and that he was an intimidating and controlling person.
Having completed her testimony about the acts of domestic violence on which her complaint was based, plaintiff testified about past acts of domestic violence. She recalled that six months earlier, before she and defendant went to mediation, she attempted to take a shower. Defendant knocked her to the bed, pinned her down with her arms above her head, and tried to rape her. The plaintiff claimed defendant pulled her top off and her pants down to her knees. He ignored her demands to stop. She bit him on the shoulder, screamed, and fought him, and he finally gave up. That incident, according to plaintiff, happened in October 2013.
Plaintiff also recalled an incident that took place four years earlier, in November 2010. Plaintiff returned home after going to a movie and began to talk with her daughter. Apparently, they were talking loud enough to wake up defendant, who came downstairs, shoved his cellphone in plaintiff's face, and took a picture of her. When she attempted to walk into the foyer, he grabbed her from behind by the shoulders and shoved her head into the wall. She went to the hospital the following day. As a result of that incident, she suffered from headaches for days and had "a very large egg-sized welt on [her] forehead."
Anticipating defendant's testimony on his complaint, plaintiff acknowledged that she owned an antique rifle that her father had given her, but claimed that she never had ammunition for it and did not know if it worked. She claimed an incident defendant alleged to have occurred concerning the rifle, could not have happened when he said it happened, because he was away on a trip.
Plaintiff concluded her testimony by explaining that defendant's behavior had worsened and she did not believe it would be safe for her to continue to live with him.
Defendant testified and denied plaintiff's allegations. He first addressed the predicate acts of domestic violence she had alleged in the complaint. As to the incident in the garage, he explained that he was not home much and needed to start packing. When "she finally gave [him] a list of what she agreed [they] could split up[,]" he started packing "stuff" that was in the garage. All morning long, she took pictures, saying that if he took anything that was hers, she would call the police and accuse him of stealing. He replied that because he was using a pickup truck, she could easily see what he was taking.
Several times she came and pointed to things in the pickup that she claimed were hers, including some Christmas wrapping. "All of a sudden, four troopers pull up in my driveway. I kiddingly said to them, I guess my wife called and said I was stealing her stuff. They said, no, we're here on an assault charge."
The officers separated plaintiff and defendant. One of the troopers picked up the object that plaintiff said defendant had thrown at her. It was a deflated pool basketball. The troopers asked both plaintiff and defendant if they wanted to file complaints. He declined and she agreed but she had to drive to the station and the trooper would not permit her to do so because she was "too drunk."
The officers eventually drove her to the station. When defendant started to explain what they told him, the court said he could not do so because they were not present. He replied that he thought they would be in court. The judge explained that they would not appear without a subpoena. The defendant was not aware of the procedures. In any event, defendant said that plaintiff's claim that he threw the ball at her was "a total fabricated story."
Defendant also denied that he screamed at her and called her names. He said it was "the exact opposite." Though acknowledging at some point he likely raised his voice, she, not he, was the one that was screaming. Defendant questioned how plaintiff would know he was four feet behind her, as she alleged, when she was walking with her back to him. He insisted that he never touched the basketball and never threw it. When the court inquired about her neck and shoulder pain, defendant explained that she had suffered from back injuries for "years and years and years." She had undergone considerable treatment and was "on all kinds of prescription medication for her back injuries." Although she once had health insurance when she worked at a casino, she was fired from the job for drinking. Defendant also testified that plaintiff had twice gone to the hospital when she did not have health insurance, so it was inconceivable that she would not go on the day of the alleged incident for that reason.
After the police responded to her calls, an ambulance came and the EMTs checked her out. They found no physical injury, no scars, no marks; nothing. That is why the police did not arrest him. After she returned from the station, she made a phone call and then left. He did not see her until the next day after she filed a complaint.
With respect to the incident that occurred in the laundry room, defendant explained that the only time he could wash his clothes was on Saturdays and Sundays. He had asked her several times to leave the laundry machine empty for him. The day of the alleged incident, he was leaving for Canada and she had filled the machines. He took her clothes out of the dryer, put them in a basket, and put his clothes in the dryer. She came down and pulled everything out and started throwing his clothes around. He tried to put the clothes back; she pulled them out. Finally, she walked away. Defendant said "[s]he was never pushed; she was never shoved. She was screaming; she was drunk; she was yelling; she was cursing, and I had a plane to catch in like five hours." Defendant denied that he ever touched her that day. He said "Your Honor, I have been married [twenty-one] years. I have known this woman way, way longer than that. I have never once, not once laid a hand on her ever."
When the court questioned him about the pocketknife, he said that he carried one for various purposes since he was a teenager. He had a habit of taking it out and flicking it. But he never did so to intimidate plaintiff or to threaten her.
The court next inquired about the alleged sexual assault. Defendant explained that the night before mediation, he and plaintiff both "thought that this was going to be it." Plaintiff "wondered if it was the right thing after being married [twenty-one] years," and having two children. She crawled into bed with him and they both cried about what was going to happen the next day. After about ten minutes, however, "she flipped out like a light switch. Just flipped out, started tearing the covers off, screaming and yelling. Went into her bedroom, closed the door." When defendant attempted to enter the bedroom to determine why she had become so upset, she "flipped out" and started screaming again. He closed the door, backed out, and went to bed.
The next day at the mediation, "she brought up this whole ridiculous rape thing." Defendant adamantly denied her accusations, and questioned why if the incident had occurred as she described she did not call the police.
Defendant further explained that the entire time the parties were going through the divorce plaintiff repeatedly threatened him with restraining orders, which would require him to leave the house. He estimated that she had threatened him thirty times, if not more. Even after the divorce, she continually threatened to return to court or call the police. On one occasion, when the police came to their home, plaintiff was drunk and so belligerent that the police handcuffed her. Their daughter was afraid of plaintiff that night.
On another occasion, plaintiff ripped defendant's shirt. He videotaped the incident and when the police arrived, they handcuffed plaintiff. They were going to take her to the police station, but he pleaded with them not to take her. Eventually she went to her mother's home for the night. Defendant explained that he could have pressed charges and obtained a restraining order, but did not do so. He also explained that at one time plaintiff did have a knot on her head, but that was from her falling into the kitchen cabinet because she was so drunk. She had consumed an entire bottle of vodka in about three hours.
At the request of the court, defendant then explained why he filed a domestic complaint against her. He explained that he charged her with harassment because she repeatedly threatened to take him back to court, get a restraining order, and have him evicted from the house, though he also explained that when she would threaten or curse or yell at him she usually had been drinking. "Half the time she doesn't even remember what she said or what happened" the next day. He also explained that he filed the complaint because defendant continued to fabricate stories about him, like those she told in court. She also repeatedly reminded him that she owned a shotgun and that he had better sleep with one eye open.
When the court asked if defendant had responded to all of plaintiff's allegations, he said he was unsure because "[w]e're bouncing all over the place. I think I have." The court responded:
I'm not bouncing all over the place. Maybe you are; but I'm not. I have a scheme here that I'm trying to develop. See this is the case - - this is the kind of case that, as a judge, I don't think people should go back and live together when there's a pending sale of the house. If you got a divorce, you know there are going to be lots of incidents where you're
disagreeing. And these kinds of things occur all the time, you know.
And when I deal with divorces I tell people somebody has got to get out; somebody has to leave. Because if you're getting a divorce there's a cause of action that causes friction between the parties. You're living there - - sometimes I say, you know, jokingly, who's going to clean the house and who is going to cook the dinner and that - - because I want to make that distinction, you know. It's not a good thing. Somebody should get out. It's not possible to live peacefully, unless you're unusual people, in the same house when you're getting a divorce.
In rebuttal, plaintiff testified that she drank socially, but not excessively. She explained that she did not call the police on the night defendant attempted to rape her because it was embarrassing, she did not want her children exposed to the accusations, and their case was going to mediation the next day so she would possibly "be done with this . . . and would [not] have to deal with him any longer." She also explained that she had threatened to take defendant back to court because he had not complied with his obligations specified in the divorce judgment.
Following the testimony and closing arguments, the court delivered its opinion from the bench. The court began by reiterating its view about divorced parties: "[P]eople that are divorced should not be living together no matter what. It's an area of contention." The court next noted that the police had responded to the parties' house on at least three occasions, yet, nobody was detained. The court also thought "there is some excessive drinking going on. No question in my mind." Nevertheless, the court reiterated: "[T]he two of you can't go back to that house. No matter what I say, you can't go back to that house and live together in that house with your children there."
The court then stated: "Now, the most significant event, as far as I'm concerned, to supplement each of your complaints, is this allegation of sexual assault. That bothers me." After digressing and talking about the incident in the laundry room, the court said: "But again, I come back to the sexual assault issue, historical issue, where it seems to demonstrate to me that there was some exercise of control over the situation. If not for that, I would probably have a real problem issuing a restraining order, which I'm about to do."
The court appeared to find that plaintiff did not in fact bite defendant to get away, then digress again:
[T]he [c]ourt has to deal with, first of all, whether she's proven and whether you've proven your case by way of a preponderance of evidence. I could find both of you guilty of an act of domestic violence and restrain both of you. But what does that do for the house - - I mean, people living in the house. I don't know.
The court then determined that defendant was not in immediate danger of harm. The court's opinion then became somewhat equivocal. The court said it believed plaintiff "about what is indicated in her complaint as being fearful, causing her to hit the wall in the laundry room," but then repeated that "the two of you cannot go back to that house and live together peacefully. It's not going to happen." The court next stated:
So considering that one event, that one event, because without that I would not issue a restraining order, that she complained before your mediation session that there was - - that she - - I don't know that you sexually assaulted her, but there were some restraints there. She was restrained in some fashion. All the other things are domestic contretemps living together.
But with that, that buttresses her initial complaint that's set forth for May 18th . . . . And I also accept your testimony about the shoving across the room, in the laundry room, that there was some pushing and shoving.
Motivation. Motivation with regard to that one incident where she charges sexual assault - - and I don't think it was sexual assault. I don't think there was any penetration or anything of that nature. Motivation was to intimidate her and to subject her to an act of restraint.
And based upon that, I'm going to issue a restraining order against you, [defendant]. And that's based upon harassment, 2C:33-4; conduct with the purpose to alarm or seriously annoy. That's the only reason I'm issuing, because there is a history here.
So with respect to that, considering the prior history, considering you can't go back to live in that house together, immediate danger to her. And the financial circumstances; I don't know. But best interest of the victim here is to issue a restraining order. And I will do that.
Following the court's issuance of the FRO, defendant retained counsel, who filed a motion for a new hearing. Defendant proposed to call two witnesses at the new trial: one of the State Troopers who responded to the parties' house on the day plaintiff was allegedly struck by the basketball, and the parties' twenty-two-year-old daughter. Defendant explained at oral argument that the trooper would confirm that plaintiff was intoxicated and the parties' daughter would testify that in twenty-one years, the police had responded to the house only once and that was caused by plaintiff, not defendant.
During the argument on the motion, the court confirmed that it made its determination based on one incident, the "bedroom" incident. The court stated, "Counsel, if I recall, my decision was based upon the fact that I believed [plaintiff] when she said that she was restrained on that bed. . . . I certainly believed that she was restrained at that time. That was the only reason I issued that restraining order."
Finding that defendant had not established sufficient grounds for a retrial, the court denied his motion. Defendant appealed from the implementing order as well as from the FRO.
Our "review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not disturb the trial court's findings unless they are unsupported by substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations based upon the opportunity of the judge to see and hear the witnesses. Cesare, supra, 154 N.J. at 411-12. In Family Part cases, because of the Family Part's special expertise, we must accord particular deference to fact-finding and to the conclusions that logically flow from those findings. Id. at 412-13. Although we owe no special deference to a trial court's conclusions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), "we do not second-guess their findings and the exercise of their sound discretion," Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
A plaintiff seeking an FRO under the PDVA must prove "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." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). A trial court hearing an application for a FRO under the PDVA must make two determinations: whether the plaintiff has proved by a preponderance of the evidence that defendant committed one of the predicate acts enumerated in N.J.S.A. 2C:25-19(a); and, if so, whether a restraining order is necessary to protect the plaintiff. Id. at 125-26. "Although this second 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:25-29[(a)](1) to -29[(a)](6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.
In making these determinations, a trial court must be cognizant of a defendant's due process rights. A defendant charged with committing an act of domestic violence under the PDVA is entitled to due process.
What that means is that "[a]t a minimum, due process requires that a party in a judicial hearing receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" [H.E.S. v. J.C.S., 175 N.J. 309, 321 (2011)] (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)). More particularly, we held that due process forbids the trial court "'to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are
not even alleged in the complaint.'" Id. at 322 (quoting J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998)); see L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999) (explaining that "it is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint.").
[J .D. v. M.D.F., 207 N.J. 458, 478-79 (2011).]
In the case before us, plaintiff charged defendant with committing the predicate act of assault on May 18, 2014, by throwing a small basketball that struck the back of her neck; and on May 4, 2014 by shoving her across the laundry room and causing her to strike the wall. The court appears to have found that he did not throw the basketball but that there was some shoving that occurred — though as we have pointed out, the court's decision is unclear on that issue. It is also unclear whether the court's determination was based on defendant committing harassment by restraining her in the bedroom incident, or by shoving her in the laundry room. And the court provided no analysis of either the elements of harassment or the facts that established those elements.
It appears that rather than determining whether defendant had committed the predicate act alleged in the complaint, assault, then determining from the prior incidents whether an FRO was necessary, the court determined that no divorced couple should live under the same roof and that defendant had committed an act of harassment by restraining plaintiff, not on the date of the predicate act, but on a previous occasion. And it bears repeating that plaintiff had not alleged harassment as a predicate offense; she had accused defendant of assault.
As we have explained, defendant was entitled to "notice defining the issues and an adequate opportunity to prepare and respond." H.E.S., supra, 175 N.J. at 321 (quoting McKeown-Brand, supra, 132 N.J. at 559). The court appears to have changed the issues by finding defendant had committed a predicate act other than those allegedly committed on the dates specified in the complaint.
The trial court's inadequate articulation of its findings and conclusions, coupled with the court's expressed philosophy that divorced parties should not reside together, also created the impression that the court was revisiting the wisdom of the divorce judgment — which permitted the parties to remain in the marital residence until it was sold — instead of focusing on the two-fold determination it was required to make under the PDVA.
For all of those reasons, we reverse and remand for a new hearing. The hearing should take place before a different judge. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617 (1986) ("'[t]he judge who heard the matter below has already engaged in weighing the evidence and has rendered a conclusion on the credibility of the Division's witnesses'") (quoting In re Guardianship of R., 155 N.J. Super. 186, 195 (App. Div. 1977).
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION