Opinion
DOCKET NO. A-2003-14T3
09-27-2016
O.E., Plaintiff-Respondent, v. S.R., Defendant-Appellant.
S.R., appellant pro se. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Sabatino and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-000890-15. S.R., appellant pro se. Respondent has not filed a brief. PER CURIAM
Defendant S.R. appeals the Family Part's November 18, 2014 decision issuing in favor of plaintiff O.E. a Final Restraining Order ("FRO") against him pursuant to the Prevention of Domestic Violence Act ("PDVA"), N.J.S.A. 2C:25-17 to -35. The FRO was predicated on the trial court's factual finding that defendant had assaulted and harassed plaintiff within their residence. Because plaintiff's testimony on a material and disputed factual issue at trial was mistranslated from Russian to English, we remand this case to the trial court for further consideration.
The parties, who were both Russian speaking, were married as of the time of the November 2014 trial. They have one child together, a son who was age eleven at the time of the alleged incident. According to the plaintiff wife's testimony, defendant has a history of yelling and acting violently within the residence. The parties' child has been diagnosed with emotional distress, and was hospitalized for a seizure. According to plaintiff, the Division of Child Protection and Permanency got involved at the hospital and learned of the hostilities in the household. The Division personnel reportedly told her that they would not allow the child to return home unless she obtained a restraining order against her husband.
Consequently, plaintiff filed a complaint against defendant in the Family Part, alleging that he had physically assaulted her in their residence and that she was fearful for her safety. The court issued a temporary restraining order to plaintiff, and the matter was listed for a final hearing.
Both parties appeared without counsel at the ensuing trial. They were the sole witnesses who testified. Their testimony was translated from Russian to English through the assistance of an interpreter. Plaintiff's essential contention was that defendant had threatened and physically assaulted her, which defendant flatly denied in his own testimony.
Through the interpreter, the plaintiff described an incident in which defendant allegedly came after her and she struck a wall, after he had threatened to kill her. In the translation provided by the interpreter, the wife's testimony on this critical point was set forth in the passive voice, indicating that she "was hit against the wall" and suffered "pain in [her] head." The trial court relied on this translated version in finding that defendant had, in fact, assaulted and harassed plaintiff, each of which is a qualifying predicate act under the statute. See N.J.S.A. 2C:12-1(a) (defining simple assault) and N.J.S.A. 2C:25-19(a)(2) (treating simple assault as a qualifying predicate act under the PDVA); see also Capell v. Capell, 358 N.J. Super. 107 (App. Div. 2003) (upholding an FRO where an enraged husband shoved his wife into a counter).
In this unopposed appeal, defendant argued that the interpreter's translation was in error. He moved to have a corrected translation provided in lieu of what had been orally conveyed to the trial judge. Consequently, we directed a further review of the tape recorded testimony, by a different Russian translator, with respect to the critical passages identified on appeal. The translator agreed with defendant that plaintiff had used the active voice rather than the passive voice and that she had actually stated in Russian, "I hit the wall."
The now-corrected translation provides a reasonable basis to question the factual underpinnings of the trial court's decision. Plaintiff's correctly-translated statement that she "hit the wall" could signify, in the context of her testimony, that she herself hit the wall while attempting to back away or otherwise retreat from defendant. Conversely, it might be inferred plaintiff only "hit the wall" because of defendant's menacing actions, which might be sufficient to meet either the definition of simple assault or an attempt "by physical means to put [her] in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1(a)(3). Alternatively, defendant's conduct might comprise harassment, N.J.S.A. 2C:33-4(c), as a "course of alarming conduct . . . with purpose to alarm or seriously annoy such other person." In any event, the difference between the translated versions, including the distinction between the active voice and the passive voice, could have materially affected the trial judge's analysis of the proofs.
"The voice of a verb within a sentence 'shows whether the subject acts (active voice) or is acted on (passive voice) — that is, whether the subject performs or receives the action of the verb.'" Cologna v. Bd. of Trs., Police & Firemen's Ret. Sys., 430 N.J. Super. 362, 372 (App. Div. 2013) (quoting Chicago Manual of Style § 5.112 (15th ed. 2003)); see also State v. Marguez, 202 N.J. 485, 523 n.4 (2010) (LaVecchia, J., dissenting). --------
Now that the translation of plaintiff's testimony has been corrected, the appropriate course of action is to remand this case for reconsideration by the trial judge in light of that material change. The trial court thus shall reschedule a proceeding with the parties to reconsider the matter. At that proceeding, the court shall have the discretion to re-open the proofs if it finds any matters warrant clarification. If, hypothetically, the court still finds an adequate factual basis to provide a predicate act under the statute, the court shall also consider whether restraints are presently needed for plaintiff's safety. Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006). In the meantime, the terms of the FRO shall remain in force, pending the remand.
Remanded for further proceedings consistent with this opinion. 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