Opinion
DOCKET NO. A-2662-13T4
02-18-2016
M.E.M., Plaintiff-Respondent, v. R.M., Defendant-Appellant.
Mirella C. Miranda argued the cause for appellant (Ms. Miranda, of counsel and on the briefs; Aimee Brett Kass, on the briefs). Michael J. Fitzpatrick argued the cause for respondent (Day Pitney LLP, attorneys; Mark Salah Morgan, of counsel; Matthew S. Miller, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0472-14. Mirella C. Miranda argued the cause for appellant (Ms. Miranda, of counsel and on the briefs; Aimee Brett Kass, on the briefs). Michael J. Fitzpatrick argued the cause for respondent (Day Pitney LLP, attorneys; Mark Salah Morgan, of counsel; Matthew S. Miller, on the brief). PER CURIAM
Defendant, R.M., appeals from a final restraining order (FRO) entered by the Family Part on January 8, 2014, pursuant to the New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
We employ initials to protect the identity of the victim and her family. --------
I.
Plaintiff and defendant were married from 1999 to 2008 and had two children together. During the latter stage of the parties' marriage, and since the divorce in 2008, their relationship has deteriorated.
The parties share joint custody of their children, and have been in communication with one-another since their divorce in order to coordinate their co-parenting responsibilities. To this end, numerous messages have been exchanged. These exchanges often degenerated into name-calling, accusations, and threats of legal action.
On December 16, 2013, tension between the parties came to a head. On that day, defendant brought their son to plaintiff's home from basketball practice. An argument ensued that, according to plaintiff, ended with defendant banging on her door and cursing at her. The commotion drew the attention of plaintiff's upstairs neighbor, who telephoned plaintiff to ask if everything was alright. The next morning, plaintiff applied for, and received, a temporary restraining order (TRO) against defendant.
A final hearing was conducted on January 8, 2013, before the Family Part judge. At the hearing, the court heard testimony from both parties and plaintiff's upstairs neighbor. Based on the demeanor of the parties at the hearing, and the corroborating account given by plaintiff's upstairs neighbor, the judge credited plaintiff's account of the events of December 16, 2013, and discredited defendant's testimony that he merely accidentally walked into plaintiff's door. The court also credited plaintiff's testimony that, in 2008, a dispute between the parties over recycling culminated in defendant attempting to choke her.
In an oral opinion, the judge found that defendant harassed plaintiff, and an FRO was necessary to prevent further harassment. An FRO was subsequently issued. It is from that order that defendant appeals.
II.
On appeal, defendant argues that the Family Part's findings and conclusions were unsupported by credible evidence in the record. Defendant also argues that he was deprived of due process because he did not receive adequate notice of the claims against him and the Family Part judge was biased. We are unconvinced by these arguments.
We turn first to defendant's arguments regarding the sufficiency of the court's findings and conclusions. Our role in reviewing a trial court's findings following a non-jury trial is limited. "The general rule is that findings by a trial court are binding on appeal when supported by adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428 (2015) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Thus, an appellate court should "not disturb the 'factual findings and legal conclusions of the trial judge unless . . . [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Cesare, supra, 154 N.J. at 411-12).
Additionally, we give special deference to factual findings of the family courts because of their special expertise in family matters. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
When determining whether to grant an FRO, a judge must make two determinations. See 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:25-19(a) has occurred." Id. at 125. Second, the judge must determine whether, upon consideration of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), a restraining order is required to protect the plaintiff from future acts. Id. at 126.
Applying due deference to the Family Part's factual findings, we are satisfied that they are amply supported by credible evidence in the trial record. Moreover, we are equally satisfied that the trial court's application of the statutory factors was legally sound.
The court concluded that defendant committed the predicate act of harassment, N.J.S.A. 2C:25-19(a)(13). Harassment is defined by statute as occurring when a person, acting "with purpose to harass another,"
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in
offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
[N.J.S.A. 2C:33-4(a) -4(c).]
The record contains specific examples of coarse, offensive, and alarming communications from the defendant. Furthermore, that these communications were made with the intent to harass is clear from their content. See State v. Hoffman, 149 N.J. 564, 577 (1997) ("A finding of a purpose to harass may be inferred from the evidence presented."); State v. Castagna, 387 N.J. Super. 598, 607 (App. Div. 2006), certif. denied, 188 N.J. 577 (2006). We see no reason to disturb the judge's finding.
Likewise, with respect to the second Silver prong, the judge's conclusion that an ongoing restraint was required to protect plaintiff from further harassment is supported by substantial credible evidence in the record. The judge found a restraining order necessary because of a pattern of escalation in defendant's conduct towards plaintiff. This conclusion is supported by consideration of the frequency and vitriol of defendant's communications, the prior choking incident in 2008, plaintiff's testimony that defendant had become more belligerent in the past year, and the aggression displayed by defendant on December 16, 2013, by banging on plaintiff's door.
Defendant also contends that the Family Part judge failed to adequately consider whether plaintiff's actions in seeking an FRO were motivated by revenge or a desire to prevent him from seeking custody of their son. This argument finds no support in the record. The judge explicitly addressed this issue, and held that a genuine basis existed for the issuance of an FRO. Furthermore, plaintiff testified, and the court agreed, that defendant is a good father and loves his children. This testimony is inconsistent with the motivation defendant attributes to plaintiff.
We turn now to defendant's due process claims. The Fourteenth Amendment to the United States Constitution and Article I, paragraph I of the New Jersey Constitution protect individuals from deprivations of life, liberty, and property, without due process of law. See Doe v. Poritz, 142 N.J. 1, 99 (1995). The essence of procedural due process is notice and an opportunity to be heard. See State v. Garthe, 145 N.J. 1, 8 (1996). There are no bright-line rules to judge the constitutionality of a particular procedure employed in a proceeding; "[i]t is a flexible concept and calls for such procedural protections as the particular situation demands." N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div. 2003), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004).
First, defendant contends he was denied his due process right to adequate notice because the TRO failed to give a specific account of the allegations against him. This argument fails because the TRO accurately enumerated the allegations against him, and served to put him on adequate notice. The TRO was filed on December 17, 2013. It first gives an account of the events of December 16, 2013 that precipitated the filing of the TRO, namely, that defendant was "banging on [defendant's] apartment complex door to force his way inside . . . [and] began shouting and cursing" when he found he could not gain entry. Under the heading "Any Prior History of Domestic Violence Civil Complaint and Temporary Restraining Order," the TRO goes on to state:
(1) During nine years of marriage the defendant tried to chock [sic] the plaintiff in 2008. (2) The defendant has called the plaintiff a piece of shit, whore, bad mother, bitch, and more. (3) The defendant also harasses the plaintiff by emails at work and on his personal computer along with text messages. Plaintiff has the text messages. (4) Plaintiff is afraid of the defendant because he is very aggressive.
Thus, the TRO set forth, in detail, plaintiff's allegations regarding the events of December 16, 2013, as well as the historical basis supporting plaintiff's motion for an FRO. Furthermore, the allegations in the TRO were almost identical to the allegations put forth at trial, and were therefore clearly sufficient to put defendant on notice of the claims made against him.
Finally, we reject defendant's argument that the Family Part judge was biased by derogatory remarks made by defendant about persons of Cuban descent. The record contains no evidence of any behavior on the part of the judge suggesting bias. On the contrary, the judge castigated both parties for their inability to cooperate, and took pains to note that defendant appeared to the court to be a good father who loves his children. This argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION