Opinion
DOCKET NO. A-0706-15T1
04-13-2017
J.M., Plaintiff-Respondent, v. D.M., Defendant-Appellant.
James M. Porfido, attorney for appellant (Mr. Porfido, Michelle A. Benedek, and Carly DiFrancisco, on the briefs). J.M., respondent pro se (Angelo Sarno and Jill D. Turkish, on the 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez and Accurso. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0101-16. James M. Porfido, attorney for appellant (Mr. Porfido, Michelle A. Benedek, and Carly DiFrancisco, on the briefs). J.M., respondent pro se (Angelo Sarno and Jill D. Turkish, on the brief). PER CURIAM
Defendant D.M. appeals from the Family Part's August 14, 2015 final restraining order (FRO), issued after a three-day trial, pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. After our consideration of the record and the Family Part judge's cogent and detailed decision, we affirm.
The judge heard testimony from three witnesses: plaintiff, J.M., who was self-represented, defendant, and a police officer from Florham Park. In addition to testifying, plaintiff played voicemails that defendant acknowledged leaving on her cell phone.
The judge found both parties only partially credible. She credited the officer's testimony that when arrested, defendant admitted that plaintiff's vehicle had a tracking device.
The judge held that plaintiff established by a preponderance of the evidence the predicate acts of harassment, N.J.S.A. 2C:33-4 and 2C:25-19(a)(13), and stalking, N.J.S.A. 2C:12-10 and 2C:25-19(a)(14). The decision was based mainly on statements and admissions defendant made during the trial. The judge also concluded the FRO was necessary to protect plaintiff from further acts of domestic violence because defendant's conduct and anger towards plaintiff were "escalating." We combine our discussion of the additional relevant events with our discussion of the judge's findings of fact and the applicable law.
On appeal, defendant raises the following points for our consideration:
I. THE TRIAL COURT ERRED IN GRANTING A FINAL RESTRAINING ORDER.
A. THE DEFENDANT/APPELLANT'S ACTIONS DID NOT CONSTITUTE HARASSMENT UNDER N.J.S.A. 2C:33-4 AND THE PLAINTIFF/RESPONDENT FAILED TO ESTABLISH THE PREDICATE ACT BY A PREPONDERANCE OF THE EVIDENCE.
B. THE DEFENDANT/APPELLANT'S ACTIONS DID NOT CONSTITUTE STALKING UNDER N.J.S.A. 2C:12-10.
C. THE TRIAL COURT FAILED TO APPROPRIATELY APPLY THE STANDARDS SET FORTH IN N.J.S.A. 2C:25-29[(A)] REQUIRING THAT THE RESTRAINING ORDER BE NECESSARY TO PROTECT THE VICTIM FROM IMMEDIATE DANGER OR PREVENT FURTHER ABUSE.
II. THE DEFENDANT/APPELLANT WAS DENIED DUE PROCESS BY THE LOWER COURT'S FAILURE TO ADDRESS THE MOTION FOR RECONSIDERATION BASED UPON NEWLY DISCOVERED EVIDENCE.
III. THE TRIAL COURT ERRED BY OVERREACHING TO ASSIST THE PLAINTIFF/RESPONDENT IN PRESENTING HER CASE AS A PRO SE PARTY.
Defendant's October 8, 2015 notice of appeal referenced only the court's August 14, 2015 entry of an FRO. No subsequent notice was filed nor was an application made to amend the notice. Defendant did file a motion to supplement the record with documents related to events that occurred after the trial. The motion was denied. Accordingly, we will not address orders entered after the FRO, or arguments regarding documents which were not presented during the course of the trial. See R. 2:5-4. --------
The scope of appellate review of a family court's findings of fact is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). The factual findings are binding if "supported by adequate, substantial, credible evidence." Id. at 411-12. Deference is accorded to those findings because the judge who conducted the trial had the ability to observe the witnesses firsthand and make credibility determinations. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). We disturb the findings, however, if they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice[.]" Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974). A family judge's legal conclusions are reviewed de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The Act defines domestic violence as predicated on specific offenses committed against a person who is entitled to protection. N.J.S.A. 2C:25-19(a). In addition to determining if predicate acts occurred, a trial judge must assess whether an order is necessary to protect the victim from "an immediate danger or to prevent further abuse." Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). Thus, once having determined that a plaintiff has proven a predicate act, a judge must then engage in the second step of deciding if a protective order is necessary. Id. at 126.
A person is guilty of harassment when he or she, "with purpose to harass another," engages in either communications or conduct such as an assault, or course of alarming or annoying conduct. N.J.S.A. 2C:33-4(a)-(c).
In evaluating a defendant's intent, a judge is entitled to use "[c]ommon sense and experience[.]" State v. Hoffman, 149 N.J. 564, 577 (1997). In this case, the judge found, and we agree, that defendant's behavior in following plaintiff, tracking her movements, confronting her while she was at a male friend's home, and sending her text messages telling her he knew where she was, constituted harassment. It was behavior engaged in for the sake of causing plaintiff annoyance or alarm. Unlike defendant's assertion on appeal, defendant's conduct was not engaged in solely to gather information or for some other innocent purpose. See J.D. v. M.D.F., 207 N.J. 458, 485-88 (2011) (husband's conduct in standing outside wife's residence and photographing her with her paramour was not improper when he was preparing for a custody motion).
Defendant admitted going to plaintiff's male friend's home on March 18, 2015, and peering in the front and back windows. Once he confirmed his suspicion that plaintiff was at the house, he rang the doorbell. He confronted plaintiff and told plaintiff's friend that she was his wife and that she needed to come home. As the judge said, "[i]f [defendant] was there only to collect information he could have either just rung the doorbell and asked for the information, or left once he had the information in hand."
The judge found defendant's text message informing plaintiff that he was at the Hilton Hotel, where plaintiff's car was parked, was not sent for an innocent purpose. He did not dispute sending the message. Having tracked plaintiff to that location, if defendant was merely seeking to collect information, he need not have communicated with her. As the judge said, by sending her a text message to the effect that he knew where she was, defendant was enjoying "a 'gotcha' moment. [Its] purpose [was] to annoy, harass, alarm, intimidate. There's no other purpose for sending a text that says let's have a drink, I found your car at the Short Hills Hilton."
Moreover, the judge heard defendant admit that on August 3, 2015, he entered a restaurant where he had tracked plaintiff, who was seated at a table with a male friend. Had defendant's purpose been innocent, and limited to gathering information, he could have photographed plaintiff and her companion, and just left. Instead, he testified that he entered the restaurant and sat down at their table, informing the man with whom plaintiff was dining that she was his wife.
Stalking occurs when a person "purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his [or her] safety or the safety of a third person or suffer other emotional distress." N.J.S.A. 2C:12-10(b). The statute is intended to prevent conduct "that would cause such fear in an objectively reasonable person." State v. Gandhi, 201 N.J. 161, 187 (2010). A "course of conduct" is defined as, "repeatedly maintaining a visual or physical proximity to a person . . . [or] repeatedly committing harassment against a person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person." N.J.S.A. 2C:12-10(a)(1).
The court allowed plaintiff to question defendant about a log he kept from 2008 to 2012, recording every contact she had with her daughter. Defendant acknowledged creating the document. It was not admitted into evidence, but he testified about it in detail.
Defendant admitted to following plaintiff's car on several occasions, claiming that he did so for benign reasons, such as that he felt she had consumed too much to drink to be driving safely. While on the stand, defendant said he went to five different hotels in an effort to locate plaintiff. He also admitted to following her by using a device defendant claimed the manufacturer pre-installed in the vehicle plaintiff was using. When defendant found plaintiff, a confrontation ensued. Thus the judge's determination that defendant stalked plaintiff, like the determination that he harassed her, is supported by defendant's own words.
Defendant further contends that the judge failed to apply the principles enunciated in Silver properly, in that plaintiff did not prove that an FRO was necessary for her protection. It is true, as defendant argues, that the judge found that significant marital contretemps had occurred in addition to the predicate acts. See Silver, supra, 387 N.J. Super. at 123.
On this point, the judge found, however, again based principally on defendant's own voice, that plaintiff reasonably feared defendant's emotional state. Plaintiff played defendant's cell phone messages, in which he at times expressed great anger immediately followed by expressions of a desire to reconcile with plaintiff.
Additionally, defendant's troubled state of mind caused him to engage in behavior such as throwing plaintiff's belongings onto the ground in a parking lot, or grabbing and throwing her cell phone. He admitted pushing plaintiff and drinking to the point where it impaired his judgment, even though he initially denied that he drank at all. The judge commented that she had observed defendant pounding on the table while he was testifying.
In the judge's opinion, the FRO was necessary "mostly to prevent further stalking," because "there is a long history here of [defendant] recording [plaintiff's] whereabouts for the purposes of control." See Hoffman, supra, 149 N.J. at 585.
The judge's findings are supported by "adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 412. Her conclusions of law were unassailable, both as to the occurrence of domestic violence and the need to protect.
Defendant also contends that the court overreached in assisting plaintiff during the course of the hearing, effectively denying him due process and a fair trial. This argument's lack of merit is highlighted by the fact that the judge drew her factual findings principally from defendant's own words.
The New Jersey Rules of Evidence permit trial judges to question witnesses. See N.J.R.E. 611; N.J.R.E. 614. Although such questioning must be "exercised with restraint[,]" the judge was merely attempting to move matters forward while dealing fairly, as required of Family Part judges, with a self-represented party. See State v. Medina, 349 N.J. Super. 108, 131 (App. Div.), certif. denied, 174 N.J. 193 (2002).
Defendant now challenges the cross-examination regarding the 2008 to 2012 log, as he received no prior notice that the issue would be explored. No notice was required, however, because the statute makes the prior history between the parties relevant, both as to the commission of predicate acts such as harassment and stalking, and the need for protection. Silver, supra, 387 N.J. Super. at 123 (citation omitted) (noting the Act requires a court to consider the parties' prior history of domestic violence); see also J.D., supra, 207 N.J. at 479-80 (distinguishing between evidence relating to acts of domestic violence not alleged in the complaint, which is not permitted, and evidence of the parties' prior history of domestic violence not alleged in the complaint, which may be permitted).
Finally, defendant again asserts that he should have been entitled to question plaintiff on her alleged infidelity. That issue is irrelevant. Defendant's argument that the alleged infidelity is probative as to plaintiff's credibility borders on the frivolous.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION