Opinion
DOCKET NO. A-3854-12T4
07-29-2014
B.M., Plaintiff-Respondent, v. E.P., Defendant-Appellant.
E.P., appellant, argued the cause pro se. Steven R. Enis argued the cause for respondent (Tonneman, Vuotto, Enis & White, LLC, attorneys; Mr. Enis and Ashley N. Richardson, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Simonelli and Haas. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-0862-13. E.P., appellant, argued the cause pro se. Steven R. Enis argued the cause for respondent (Tonneman, Vuotto, Enis & White, LLC, attorneys; Mr. Enis and Ashley N. Richardson, of counsel and on the brief). PER CURIAM
Defendant E.P. appeals from the February 21, 2013 final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A. 2C:33-4c. We affirm.
We derive the following facts from the record. Plaintiff B.M. and defendant were married and have two teenage children, Nancy and Naomi. According to plaintiff, defendant has a history of drug abuse for which he received treatment during the marriage. In 2008, he began "drinking a lot" and neither she nor the children wanted to stay in the house with him. Sometime in 2012, defendant began using steroids. He became hostile, belligerent and out of control, and his "drinking [got] more and more intense."
We use fictitious names to identify the children and initials to identify witnesses to protect their identities.
In September 2012, plaintiff and defendant were in the early stages of a divorce and had been arguing frequently. Plaintiff testified that on September 24, 2012, defendant became very belligerent when he arrived home and saw that she had a friend there to watch football. While they were in the kitchen, defendant opened the refrigerator door and swung it towards her. When she swung it back towards him, he said she hit him in the head and he was calling the police. As he exited the kitchen, she "kind of pushed him with [her] right leg" to "get him out of [her] face." Defendant went outside and called the police. The police arrested her for simple assault because defendant had a mark on his nose.
D.D. was present during the incident. She testified that she saw defendant open the refrigerator door and hit plaintiff as she walked by. After plaintiff nudged the door back into defendant's right shoulder, defendant slammed it shut and said he was calling the police. As defendant exited the kitchen, plaintiff "nudged" his right lower leg to get him away from her. Plaintiff did not hit defendant in the face with her hands or the refrigerator door. D.D. saw no marks on defendant's face or any cuts, bruises, scrapes, or bleeding when he exited the kitchen. Defendant went outside and called the police. When he re-entered the home after speaking to the police, he was bleeding from a cut on his nose.
D.D. testified that after this incident, defendant obtained a temporary restraining order (TRO) against plaintiff and wanted D.D. to testify against her. She refused because defendant falsely claimed that plaintiff beat him. Defendant then turned into her "[worst] nightmare and stalker." He repeatedly called her, called her employer, and threatened that she would be arrested if she failed to come to court and testify for him and against plaintiff. D.D. also testified that defendant falsely advised the court that she did not appear on the first day of the trial in this matter because plaintiff threatened her and she feared for her life.
Nancy testified that she was home on September 24, 2012, and heard her parents arguing. She saw them pushing an open refrigerator door back and forth between them, saw plaintiff slightly tap defendant's foot and walk away, heard her father say he was "calling the cops," and saw him exit the home. She saw no marks or blood on his face when he exited; however, when he re-entered after speaking to the police, he had a mark on his nose.
Defendant obtained a TRO against plaintiff on September 24, 2012, based on assault and harassment (the first TRO). He alleged that when he came home on September 24, 2012, he found plaintiff intoxicated, she began yelling at and arguing with him, and she slammed the refrigerator door on his head and kicked his legs. The TRO included as protected parties Nancy and Naomi, other family members, and plaintiff's friends, including L.A., which prevented plaintiff from communicating with and isolating her from them. Following a trial before Judge Mark P. Ciarrocca, the TRO was dismissed. The judge found that defendant lacked credibility and failed to prove either of the predicate acts alleged.
Thereafter, another incident occurred on December 4, 2012. Plaintiff testified that she and defendant were arguing and defendant threatened to call the police and tell them that she hit him. She then heard defendant call the police and say, "My wife took a swing at me again." Naomi testified that she was home at the time and never saw her mother take a swing at or try to hit her father; however, she heard her father call the police and say that her mother took a swing at him. Defendant admitted he told the police during this call that plaintiff took a swing at him.
Police Officer N.J. from the Cranford Police Department responded to defendant's call. When the officer arrived, defendant was outside the home. He told her that he and plaintiff had a very heated argument and he went outside before it escalated. Defendant also told the officer about plaintiff's arrest in September, but said there was no violence this time.
The incident that resulted in the entry of the FRO against defendant occurred on the morning of December 16, 2012. Plaintiff testified that "normally [she and her daughters] would try to be in the house together because there was a lot of false accusations being made by [defendant]." However, she was home alone this morning because her daughters were getting bagels. She was wrapping Christmas gifts on the dining room table and also working at the kitchen counter. Defendant walked into the kitchen with groceries, threw them on the counter, and demanded that she "get [her] stuff off the counter." Plaintiff described what happened next as follows:
And I guess I wasn't doing it fast enough for him. He was very hostile. And he threw everything off the table. And then he turned around to me and said, "Did you just hit me?," which is the third time he has done this to me when I did absolutely nothing wrong.Plaintiff testified that she was very upset and shaken by defendant's conduct and she "ran out the door" without a coat and drove away. She was hesitant to go to the police because of the prior incidents, so she called L.A. After speaking to L.A., she went to police headquarters and reported the incident. She feared going home, so she stayed at L.A.'s home, where her daughters later met her. Plaintiff also testified that as a result of defendant's conduct, she feared for her safety and well-being.
I had no one there. There were no kids there. And I looked right at him and I said, "I'm going right to the . . . police. After you threw my stuff on the floor and you're going to, again, accuse me of doing something I didn't do."
Plaintiff obtained a TRO against defendant based on harassment. Defendant obtained a TRO against plaintiff based on assault and harassment (the second TRO). He alleged that on December 16, 2012, an argument with plaintiff escalated and she punched him with a closed fist on his right arm and pushed him. D.D. testified that defendant included her as a protected party on his TRO without her knowledge or consent in order to prevent her from having contact with plaintiff.
L.A. testified that plaintiff was afraid to be in the home alone and would not go home if she saw only defendant's car there. On December 16, 2012, plaintiff called her. Plaintiff was extremely upset and crying and said that defendant was "doing it again to her," meaning falsely accusing her of assaulting him. plaintiff also said she feared going to the police. L.A. then called the police and reported the following:
I'm a friend of [plaintiff] . . . they're going through a nasty divorce. And I'm not sure if you're aware what's going on . . . [plaintiff] is hysterical on the side of the road. She can't be in the house alone. Her and the two girls always have to be together. They're afraid to be alone. And [plaintiff's] afraid that [defendant] was going to call the police again and say that she hit him and whatever.L.A. also testified that defendant falsely accused plaintiff of being an alcoholic.
Cranford Police Officer D.N. testified that on December 16, 2012, plaintiff came to police headquarters and reported what had happened. Plaintiff also reported that when she told defendant she was going to call the police, he responded, "go ahead, call the police, I'll just tell them you hit me." The officer noted that plaintiff was "very stressed out," but he saw no signs of intoxication. Defendant admitted that plaintiff was not intoxicated on December 16, 2012.
Defendant testified that his daughters lied. He said, "You can buy [Naomi] with an iPad. She'll tell you anything she wants," and Nancy was "mad at me because I'm the disciplinarian, because I don't allow her to get away with anything." Defendant also testified that both D.D. and Officer N.J. lied, L.A. took plaintiff out and got her intoxicated, and Judge Ciarrocca's decision was "ludicrous."
In a February 21, 2013 oral decision, the trial judge granted an FRO to plaintiff and dismissed defendant's TRO. The judge found all witnesses credible, except defendant, and concluded that: (1) defendant engaged in prior acts of harassment by threatening to call the police, falsely accusing plaintiff of assaulting him, and obtaining the first TRO, which was found to be baseless; (2) the totality of defendant's conduct thereafter constituted harassment under N.J.S.A. 2C:33-4c and would likely reoccur; (3) plaintiff feared for her well-being; and (4) an FRO was necessary to protect her from further abuse.
Defendant does not appeal from the dismissal of his TRO.
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On appeal, defendant contends that the judge erred in considering the dismissal of the first TRO as constituting a prior act of harassment because it "creates massive policy implications as it essentially prevents a domestic violence victim from filing a DV complaint after failing to prove his or her case arising out of an earlier incident." Defendant also contends the judge improperly denied him the right to call a rebuttal witness who could have impeached L.A.'s credibility.
Our review of a trial judge's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A judge's fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. The judge sees witnesses firsthand and has a "feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (citations and internal quotation marks omitted). We give additional deference to the factual findings of family court judges because they have special expertise, ibid., and we do not second-guess their exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Where our review addresses questions of law, however, a judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002).
When determining whether to grant an FRO pursuant to the PDVA, the judge must first determine whether the plaintiff has proven, by a preponderance of the evidence, that the defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-19a, which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). The judge must construe any such acts in light of the parties' history to better "understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim's continued fear of the perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); N.J.S.A. 2C:25-29a(1). "[I]n making their determinations, trial courts can consider evidence of a defendant's prior abusive acts, regardless of whether those acts have been the subject of a domestic violence adjudication." Cesare, supra, 154 N.J. at 405. If a predicate offense is proven, the judge must then assess "whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:29a(1) to - 29a(6), to protect the victim from an immediate danger or to prevent further abuse." J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting Silver, supra, 387 N.J. Super, at 127)."
Here, plaintiff's allegations fell under N.J.S.A. 2C:33-4c, which provides that a person commits harassment "if, with purpose to harass another, he . . . [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." Our Supreme Court has held that a violation of N.J.S.A. 2C:33-4c
requires proof of a course of conduct. That may consist of conduct that is alarming or it may be a series of repeated acts if done with the purpose to alarm or seriously annoy the intended victim. In interpreting [N.J.S.A. 2C:33-4c], which refers to serious annoyance or alarm, this Court has explained that the phrase means to weary, worry, trouble or offend.To determine whether there was a course of harassing conduct, the judge must assess the totality of the circumstance. Cesare, supra, 154 N.J. at 404. The judge may infer a purpose to harass from the evidence presented, and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577. "In determining whether a defendant's conduct is likely to cause the required annoyance or alarm to the victim, that defendant's past conduct toward the victim and the relationship's history must be taken into account." Id. at 585.
[J.D., supra, 207 N.J. at 478 (quoting State v. Hoffman, 149 N.J. 564, 581 (1997)) (internal quotation marks omitted).]
While we agree that the court should not consider dismissal of a prior TRO as constituting prior acts of harassment, we conclude the error was harmless. There was other substantial credible evidence in the record to support the judge's findings and conclusions that defendant harassed plaintiff within the meaning of N.J.S.A. 2C:33-4c and an FRO was necessary to prevent further abuse. After dismissal of the first TRO, defendant engaged in a course of alarming conduct and repeated acts that were intended to seriously annoy or alarm plaintiff. On December 4, 2012, he called the police and falsely reported that plaintiff "took a swing at [him] again;" on December 16, 2012, he threatened to falsely tell the police that she hit him; and the second TRO falsely accused her of assault and harassment. We are convinced that an FRO was necessary to protect plaintiff from further abuse.
We have considered defendant's contention that the judge improperly denied him the right to call a rebuttal witness in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied the judge correctly determined that the proposed rebuttal witness could provide no relevant evidence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION