Opinion
DOCKET NO. A-4143-12T2
07-28-2014
E.F., Plaintiff-Respondent, v. G.K., Defendant-Appellant.
G.K., appellant, telephonically argued the cause pro se. Amy Sara Cores argued the cause for respondent (Cores & Nachlinger, LLC, attorneys; Ms. Cores, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson, Lihotz and Hoffman. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1194-13. G.K., appellant, telephonically argued the cause pro se. Amy Sara Cores argued the cause for respondent (Cores & Nachlinger, LLC, attorneys; Ms. Cores, on the brief). PER CURIAM
Defendant G.K. appeals from a final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, challenging the weight of the evidence and raising evidentiary issues. After the appeal was filed, on defendant's motion, we ordered a limited remand to address his request for modification of child support and visitation. Defendant has not amended his notice of appeal to include the order entered on remand, but confines his arguments to challenging the initial FRO. We affirm.
Plaintiff E.F. and defendant began a dating relationship in March 2012, and began residing together two months later. The couple's child was born in December 2012.
By January 2013, both parties agreed their relationship was over, although they continued to reside together. On January 24, 2013, they were discussing separation, care and custody of their baby, and who would retain possession of their home. A "very big fight" had erupted two nights earlier "and after that fight . . . things were very tense."
Plaintiff testified that as she sat on the couch holding the baby, defendant stated "I'm really starting to hate you [E.], now you better watch out." Defendant removed his glasses and threw them in plaintiff's direction. Defendant "came toward" plaintiff and began "screaming." He demanded plaintiff release the baby. With the baby in her arms, plaintiff reacted to protect herself and the baby, by raising her legs. She reached for her cell phone, which defendant grabbed and threw against the wall, causing it to break and marking the wall. Plaintiff stood and cried for help. She attempted to move past defendant, who pushed her, and the baby, back into the couch. Plaintiff continued screaming for help while defendant stood over her, grabbing her on the left side near her neck, telling her to stop. Next, defendant grabbed plaintiff's wrist and stated "if you pack a bag tonight and you take the baby with you . . . you can leave tonight[.]" Plaintiff agreed, defendant calmed down, and the fighting stopped. Plaintiff gave defendant the baby.
When plaintiff attempted to retrieve the pieces of her cell phone, defendant began pushing her toward the floor, using his foot or his leg. Each time plaintiff tried to get up, defendant pushed her down. She again began to scream for help. She stood and attempted to run by defendant, but he grabbed her hair, "yank[ing] it with such force that [she] actually pulled back," and "almost fell back on the ground[.]" When defendant released her hair, plaintiff ran out the door. She encountered a construction worker and used his phone to call 9-1-1.
As plaintiff spoke with the construction worker who aided her, she saw defendant's car leave the home. She believed he took the baby. Although she ran after him, the car eventually left her sight.
Police located defendant one mile away. Police escorted plaintiff to that location. She saw defendant handcuffed in a police car. The baby was strapped in a car seat in defendant's vehicle. A temporary domestic violence restraining order was entered.
At trial, plaintiff recounted past interactions with defendant that heightened her fear of his temper. She stated he had a gun, which he had shown her, and had been incarcerated. Plaintiff also testified regarding documents she found in defendant's briefcase while locating the gun. Plaintiff discovered a Florida driver's license with defendant's picture but under another name, along with credit cards in that name. Plaintiff also related past incidents when defendant's angry conduct frightened her.
One responding police officer testified regarding the events. He stated plaintiff was "very upset, shaken up[,]" and "[s]he was crying." He testified plaintiff told him "they were fighting, it had escalated, that [defendant] had pushed her down, forced her down by the neck onto the couch." He observed "red marks on her neck" by her collar bone but he was unable to photograph them because the marks were no longer visible by the time they arrived at the police station. He explained: "I saw them, when we got back, there was nothing to take pictures of."
Defendant also testified about the events of January 24, 2013. The parties had discussed separating and plaintiff told him she intended to live with her mother on Long Island, New York. When he objected to the days she dictated he would have the child, she became angry. He watched plaintiff, clutching the child, with her arm around his neck "and [the child's] face was turning beet red." Defendant offered to take the baby as she packed her bag. He stated plaintiff leaned into the couch and kicked him, tightening her grip on the child. Fearing for the child's safety, defendant placed his hand on plaintiff's shoulder to brace her and she handed him the baby. Defendant acknowledged he grabbed plaintiff's phone when she tried to throw it at him, and he "tossed it." After plaintiff left the house, defendant decided to take the baby to his mother's, which he felt was "neutral ground."
Defendant responded to other allegations plaintiff made that he was controlling when it came to the baby's care. He denied grabbing plaintiff's wrist, pushing her to the ground or hurting her. He denied owning a gun and locking plaintiff out of the house. He also acknowledged plaintiff knew he was on probation and that he would be incarcerated for violating probation if a domestic violence restraining order were entered. Finally, defendant explained the documents plaintiff found were mock ups produced by a friend who was demonstrating a laminating machine.
Judge John R. Tassini considered the testimonial evidence of the parties, which he found "sufficiently similar" and entered his oral opinion. He credited plaintiff's testimony of the events as it was supported by the "fully credible" testimony of the responding officer. Judge Tassini concluded defendant committed an assault, a predicate act under N.J.S.A. 2C:25-19a(2), which was an act of domestic violence. He entered an FRO from which defendant appeals.
The scope of an appellate court's review of the factual findings made by a trial judge is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Id. at 412 (citation and internal quotation marks omitted). We afford particular deference "to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M, 211 N.J. 420, 448 (2012) (citing Cesare, supra, 154 N.J. at 413). This "'feel of the case' . . . can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
The Supreme Court has recognized the difficulty facing a "trial court to discern on which side of the line running between domestic violence and ordinary 'contretemps' a particular act properly falls." J.D. v. M.D.F., 207 N.J. 458, 482 (2011). Yet, Family Part judges "have been specially trained to detect the difference between domestic violence and more ordinary differences that arise between couples, and [because of that expertise,] their findings are entitled to deference." Ibid. (citing Cesare, supra, 154 N.J. at 412-13). Consequently, a family court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms, supra, 65 N.J. at 483-84).
When determining whether to grant a final restraining order pursuant to the PDVA, the judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125 (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:25-19a has occurred." Ibid. Second, there must also be a finding that "'relief is necessary to prevent further abuse.'" J.D., supra, 207 N.J. at 476 (quoting N.J.S.A. 2C:25-29b). In this regard, it is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995).
The determination of whether such an order should be issued must be made "in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment[,] and physical abuse[,] and in light of whether immediate danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29a(1) and (2)); Peranio, supra, 280 N.J. Super. at 54. Although this 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:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127 (citation omitted). Our review of a trial court's legal conclusions is always plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
On appeal, defendant argues plaintiff's "false [and] inconsistent statements" and the "incompetence of the arresting officer" caused the judge to err and enter an FRO. Defendant believes plaintiff's conduct was motivated by a desire to keep him from their child. In presenting this argument, defendant dissects the trial testimony as compared to the domestic violence complaint and the police report recording plaintiff's statements. We are not persuaded.
Here, Judge Tassini made very specific factual findings from the evidence presented. He relied on his observations of the witnesses from which he discerned credibility. Understanding the primary evidence was the competing testimony of the two adverse parties, Judge Tassini relied heavily on the independent observations of the responding police officer as he had no interest in the outcome. Determining plaintiff's version of events aligned with the officer's observations, Judge Tassini found plaintiff more credible. He weighed the inconsistencies of her statements, as well as her unusual conduct after the assault, such as taking the gun she located to her mother's and turning it over to New York authorities rather than the local police department. Despite these other facts, the judge determined defendant's testimony was less credible and found the facts evinced an assault and the act was one of domestic violence against which protections were necessary.
Following our review, we determine Judge Tassini's findings are supported by substantial, credible evidence in the record. These findings support his legal conclusions. We have no basis to interfere with the FRO dated February 15, 2013.
Defendant also presents evidentiary challenges which he maintains require the FRO be reversed. The focus of defendant's argument attacks plaintiff's testimony regarding her knowledge and discovery of a handgun in defendant's briefcase. He notes although plaintiff stated she located the weapon on January 24, she did not mention it until her third amended complaint filed on February 1, 2013. He asserts the statements were designed as leverage in the parenting time dispute.
"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991), certif. denied, 190 N.J. 329 (1995); see also Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982). Evidence with probative value to a material issue is relevant. N.J.R.E. 401; State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). All relevant evidence is admissible unless excluded by evidential rule or statute. N.J.R.E. 402; State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). N.J.R.E. 403(a) requires the balancing or weighing of probative value against undue prejudice and places the burden on a party urging exclusion to show that the prejudice substantially outweighs the probative value justifying its exclusion.
In evaluating a claim of domestic violence, the court may consider the plaintiff's circumstances and past incidents of abuse. Cesare, supra, 154 N.J. at 404 (citing State v. Hoffman, 149 N.J. 564, 584-85 (1997)). "Although a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis." Id. at 402 (emphasis original).
It is in this context, that is, the parties' past history as justifying plaintiff's fear of defendant, that the evidence was admitted. Further, Judge Tassini was careful not to consider defendant's possession of the gun as a basis to find defendant committed the predicate act of assault. Rather, he determined: "the incident on January 24th and as I said, and I reiterate, I find the plaintiff credible in her testimony that she was grabbed, pushed, and pulled by the hair and so on." These facts were the support for the judge's finding of domestic violence. We find no abuse of discretion in allowing plaintiff's testimony regarding her discovery of a weapon. Therefore, we reject defendant's claim of error.
Defendant asserts the introduction of his 1998 arrest stemming from a crime committed in 1995 violates N.J.R.E. 404(b) and N.J.R.E. 609(a)(2). Rule 404(b) states:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Defendant did not object to the introduction of his prior conviction. We therefore review the challenge under the plain error standard. R. 2:10-1. We find no unjust result caused by the admission of this evidence. In fact, defendant used the evidence to support his theory of events. He asserted plaintiff sought to utilize his criminal history to "set him up," suggesting she created the scenario to support a domestic violence complaint.
We also find no reversible error after considering defendant's remaining evidentiary challenges, including his assertions attacking the judge's credibility determinations, the denial of defendant's request to introduce plaintiff's criminal history of a noise violation, the judge's alleged reliance on hearsay and instructions to plaintiff's counsel regarding how to ask questions when examining his client. We reject each as lacking sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(1)(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