Opinion
DOCKET NO. A-5368-12T2
08-25-2014
IN THE MATTER OF THE APPLICATION OF THE STATE OF NEW JERSEY FOR THE FORFEITURE OF PERSONAL WEAPONS AND FIREARMS IDENTIFICATION CARD BELONGING TO F.M.
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for appellant State of New Jersey (Erin Smith Wisloff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs). Fusco & Macaluso, attorneys for respondent F.M. (Amie E. Ferriero, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FO-14-254-10. Fredric M. Knapp, Acting Morris County Prosecutor, attorney for appellant State of New Jersey (Erin Smith Wisloff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs). Fusco & Macaluso, attorneys for respondent F.M. (Amie E. Ferriero, on the brief). PER CURIAM
The State appeals the trial court's denial of its motion to forfeit respondent F.M.'s weapons, seized three years earlier pursuant to a temporary restraining order (TRO), which was subsequently dismissed. Because there is sufficient credible evidence supporting the court's determination that returning respondent's weapons would not be detrimental to the public safety and welfare, and there is no applicable statutory disqualification, we affirm.
I.
Respondent and his ex-wife G.M. have a significant history of domestic violence. In December 2009, G.M. obtained a TRO based on allegations of harassment by respondent. At that time, respondent was employed as a police officer with the Borough of Roseland Police Department (RPD). Respondent's service weapons and hunting knife were confiscated, and he was assigned to desk duty.
In April 2010, the Prosecutor's Office filed an application in family court to forfeit respondent's weapons and firearm purchaser identification (FPI) card. Judge Thomas J. Critchley, Jr., who also presided over multiple domestic violence proceedings between the parties, entered an order on June 3, 2010, stating that, pending further order of court, RPD shall retain possession of respondent's "duty weapon and any personal weapons seized pursuant to the" December 2009 TRO. The order further stated that the court would issue a decision on the final disposition of respondent's weapons once respondent completed an approved batterer intervention program, attended individual counseling as recommended by the fitness for duty (FFD) evaluation prepared by Dr. Matthew Guller.
Respondent complied with the terms of the order, and completed the required program and counseling. On September 18, 2012, he filed a motion seeking the return of his weapons. The prosecutor opposed the motion, arguing respondent's history of domestic violence showed that returning respondent's weapons would not be in the interest of public health, safety, or welfare.
An evidentiary hearing commenced on March 22, 2013, before Judge Critchley, the prosecutor presented the testimony of G.M. and two expert witnesses who had performed FFD evaluations on respondent.
G.M. testified that she and respondent were married in 1996, have two children together, and divorced in December 2011. She stated that, because of respondent's history of domestic violence, she was afraid respondent would pose an enhanced risk to her if he were permitted to own a firearm.
G.M. related two unreported incidents occurring in 1997 and 2003. She testified that, during an argument in 1997, respondent "sat on" her and put a gun to her head. She claimed she did not report the incident because she was afraid respondent would lose his job with the Army. She testified next that, during an argument in 2003, respondent "grabbed [her] neck," "forced [her] to the ground," "handcuffed [her] in front of [their] children," and "dragged [her] out of the room." She stated she did not report this incident because she "was afraid," and "didn't know what to do."
G.M. then related a number of reported incidents. She stated that in, December 2009, she and respondent got into an argument over finances, and he called her "a gold digger." She complained he was "verbally abusing" her, and read to him from a domestic violence pamphlet she had received from a battered women's shelter. Respondent then lifted a stool and motioned it towards G.M. "like he was going to hit" her, stating "this is domestic violence." Although G.M. obtained a TRO, the family court denied the final restraining order (FRO).
G.M. next testified that, in January 2010, she and respondent had separated, and G.M. was living in the marital home. G.M., angry because respondent would not tell her where he was living and because she had recently learned he had cheated on her, called respondent and engaged him in a heated argument. Respondent drove to the marital home, and the argument continued. During the argument, G.M. stood on a chair, told respondent "I feel like f***ing you up," then slapped him. Respondent threatened to call the police, and G.M. pulled her pants down, said "you want to rape me too," and "grabbed his groin." Respondent then "lifted [her] by [her] arms," "threw" her to the floor, "sat on" her, and told her to calm down.
G.M. testified that, five days later, respondent became angry because G.M. told a Division of Youth and Family Servicescaseworker, with whom they had just met regarding their nephew, about the incident that occurred earlier that week. While parked in the driveway of the marital home, respondent took G.M.'s phone and car keys, and grabbed her arm "really hard" to prevent her from leaving the car. G.M. "loosed [her]self from him" and went into the house. Respondent eventually left. G.M. obtained a TRO two days later, and respondent was charged with simple assault and false imprisonment. The parties entered into a consent order on February 17, 2010, in which respondent agreed not to return to the marital home without G.M.'s consent, and G.M. dismissed the TRO. The criminal charges were dropped.
In June 2012, was renamed the Division of Child Protection and Permanency. L. 2012, c. 16 (eff. June 29, 2012).
G.M. testified next that, on March 14, 2010, respondent violated the consent order by entering the marital home unannounced to pick up their children. She stated that she demanded respondent leave, but he ignored her, woke the children, and walked them to his car. She called the police, and attempted to block respondent's car in the driveway, at which point respondent pulled forward to push her out of the way. When G.M. clung to the rear spoiler of respondent's car, he "revved back and forth to jolt [her] off" for "about a minute or two." Respondent then exited the car and "yanked" her off of the spoiler by her torso. G.M. testified that she believed respondent was going to throw her over a nearby stone retaining wall, so she pushed off the wall with her feet. She stated: "All I remember next is that the cops came. I think he let me go, I don't remember totally. I kind of black[ed] out."
G.M. testified that respondent was arrested and charged with simple assault, and she obtained another TRO. Judge Critchley denied the FRO on April 9, 2010, and the criminal charges were later dismissed.
Respondent was also charged with contempt for violating the TRO's provision prohibiting contact with the children, apparently because respondent contacted their daughter via a computer. That charge was later dismissed as a "de minimus" infraction. N.J.S.A. 2C:2-11.
Next, Dr. Guller testified that he conducted an FFD evaluation for RPD following the December 2009 and March 2010 incidents. He interviewed respondent and G.M, and found it was "very difficult" to believe that respondent's "behaviors in many of these incidents have been aimed at restraining his wife or were meant to threaten, intimidate or physically harm her." Nevertheless, Dr. Guller concluded respondent was "not fit for full duty at the present time," "should not have possession of his weapons and is considered a potential danger to self or others if he were in possession of his weapons," and should enroll in weekly one-on-one counseling for "at least four months."
He testified that his conclusion was based on respondent's "consistent pattern of failing to deescalate or back out of volatile situations with his wife" and his "pervasive need to be right." In particular, Dr. Guller was concerned that respondent admitted to physically restraining G.M. "in situations where he should have just walked away."
Dr. Louis Schlosser testified that he conducted an FFD evaluation in May 2012 following "several incidents with [respondent's] now ex-wife, which call[ed] in[to] question his judgment, impulse and anger control." He interviewed respondent and G.M. and conducted psychometric testing on respondent, but found no evidence of a disorder. He stated, however, that respondent "exhibit[s] elements" of narcissistic, anti-social, and paranoid personality disorders, based on respondent's failing to take responsibility for reprimands at work and continuing to have altercations with G.M. despite Dr. Guller's warning to avoid conflict with her. Dr. Schlosser concluded respondent was not fit for duty as a police officer, adding that he was "frightened" by the prospect of respondent remaining on the police force because respondent "is paranoid" and "engages in impulsive bad judgments that lead to more violence."
Finally, respondent testified. He denied ever pointing a firearm at or threatening to use a firearm against G.M., but did not address any of the other incidents about which G.M. testified. He related, however, an incident in August 2010 in which he obtained a TRO against G.M. He testified that, while he was on duty at the RPD, G.M. argued with him, stationed herself outside police headquarters, and eventually called his supervisors because respondent refused to tell her who would be watching the children while he was at work.
The family court found G.M. had harassed respondent within the meaning of N.J.S.A. 2C:33-4(c), and granted respondent an FRO. We reversed, finding the evidence insufficient to show G.M. had committed an act of harassment. F.M. v. G.M., No. A-0780-10 (App. Div. September 12, 2006) (slip op. at 2, 13).
On June 18, 2013, Judge Critchley issued an oral decision, denying the prosecutor's motion and ordering the return of respondent's weapons and firearm ID card. He noted that "this is a case that [has] received considerable attention in the Family Division of Morris County, and I have ascertain[ed a] feel for it based on that exposure." The court did not find G.M.'s testimony "to be completely credible or reliable as a basis for judgment," stating that her perceptions were "colored" by her "highly contested" and "bitter" divorce from respondent. In particular, the court found G.M.'s credibility "to be wanting" regarding her testimony about the two unreported incidents occurring sixteen and ten years ago. The court also found that, although the other incidents G.M. testified to were "fairly acute and unfortunate," they "did not rise to the level of domestic violence."
The court determined that, despite their "difficult and turbulent" relationship, the parties' history of "frequently filing complaints" and "having all kinds of conflicts" was not a basis for disqualifying respondent from possessing a firearm. The court did not think that finding "everybody going through a difficult, or bitter, or protracted, or highly contested divorce case should be disarmed . . . would stand Constitutional scrutiny." The court added that, now that their divorce is final, the occasion for conflict would be reduced.
In its reply brief, the State submits a police report of an alleged incident after which G.M.'s request for a TRO was denied. This alleged incident occurred after the trial court's ruling, and is not properly before us. Our "review is limited to the record developed before the trial court." Davis v. Devereux Found., 209 N.J. 269, 296 n.8 (2012); R.2:5-4.
The court also discounted the conclusions of the State's experts. The judge rejected the experts' more favorable credibility findings of G.M., noting the experts "did not have the same exposure" to the parties' disputes as he did, "and don't have the same experience as a Family Court Judge." It also found significant that the experts did not find respondent had any disorders. The court noted that, apart from G.M.'s discredited allegation regarding the 1997 incident, there was no evidence showing respondent had ever used a weapon inappropriately.
On June 20, 2013, Judge Critchley issued an order denying the State's motion to forfeit respondent's weapons and FPI card, and granting the State's oral application for a stay pending appeal pursuant to Rule 2:9-5.
II.
The State argues that respondent's history of domestic violence and FFD evaluations show he is disqualified from owning weapons under N.J.S.A. 2C:58-3(c)(5). Our review of a family court's fact-findings is limited. In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997).
Ordinarily, an appellate court should accept a trial court's findings of fact that are supported by substantial credible evidence. Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Thus, an appellate court should not disturb a trial court's fact-findings unless those findings would work an injustice.
[Ibid. (citations omitted).]
Generally, factual findings by a family court are accorded higher deference "because of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Nevertheless, "[w]here the issue to be decided is an 'alleged error in the Family Part judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); J.D. v. M.A.D., 429 N.J. Super. 34, 42 (App. Div. 2012). "'Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made.'" J.D., supra, 429 N.J. Super. at 43 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). We hew to this standard of review.
This case is governed by the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35, which "contains detailed provisions" regarding an alleged abuser's weapons. State v. Harris, 211 N.J. 566, 579 (2012). The Act requires an officer with probable cause of domestic violence to seize the defendant's weapons and FPI card, N.J.S.A. 2C.25-21(d)(1), and permits the TRO court to forbid the defendant from possessing a firearm or dangerous knife and to seize the defendant's weapons and FPI card, N.J.S.A. 2C:25-28(j); see N.J.S.A. 2C:39-1(f). If the Superior Court does not issue an FRO barring possession of such weapons, see N.J.S.A. 2C:25-29(b), the Act provides that the weapons shall be returned unless, within forty-five days of seizure, the prosecutor files a petition
object[ing] to the return of the weapons on such grounds as are provided for the initial rejection or later revocation of the authorizations [for the use, possession, or ownership of such weapons], or on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular."[T]he burden of proof is upon the State to show, by a preponderance of the evidence, that forfeiture is legally warranted." State v. Cordoma, 372 N.J. Super. 524, 533-34 (App. Div. 2004).
[N. J.S.A. 2C:25-21(d)(3).]
If the domestic violence complaint has been dismissed and "the prosecutor determines that there is insufficient probable cause to indict," the court is required to order the return of the weapons and authorization papers unless the court determines the owner is "subject to any of the disabilities set forth in N.J.S. 2C:58-3c." N.J.S.A. 2C:25-21(d)(3). One of those disabilities states that "[n]o handgun purchase permit or firearms purchaser identification card shall be issued . . . [t]o any person where the issuance would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3(c)(5). Thus, "the Legislature intended that courts not return guns to a defendant in a domestic violence action, even after the dismissal of the complaint, if the court finds that the defendant poses a threat to public health, safety, or welfare." J.W.D., supra, 149 N.J. at 116.
The United States Supreme Court's Second Amendment decision in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), "has no impact upon the constitutionality of" N.J.S.A. 2C:58-3(c)(5). In re Dubov, 410 N.J. Super. 190, 197 (App. Div. 2009).
A judicial determination regarding whether "a defendant poses a threat to the public health, safety or welfare involves, by necessity, a fact-sensitive analysis." Cordoma, supra, 372 N.J. Super. at 535. "It requires a careful consideration of both the individual history of defendant's interaction with the former plaintiff in the domestic violence matter, as well as an assessment of the threat a defendant may impose to the general public." Ibid.
Here, the trial court's finding that respondent is not disqualified to own a firearm under N.J.S.A. 2C:58-3(c)(5) is supported by substantial credible evidence. As Judge Critchley acknowledged, respondent has had a tumultuous relationship with G.M. However, apart from G.M.'s testimony regarding the unreported 1997 incident, which the court discredited, there was no evidence showing respondent had ever used a firearm inappropriately. Cf. J.W.D., supra, 149 N.J. at 112-13, 118 (finding a man who had booby-trapped his front door with a shotgun and walked around the marital home carrying a gun could pose a threat to the public).
The State complains the court failed to address respondent's credibility. However, the court did not need to do so, particularly as it did not rely on respondent's testimony. The court could find G.M.'s credibility was "wanting" regarding those belated and unsupported allegations about the unreported incidents without explicitly addressing the credibility of respondent's denial of those incidents. see State v. One Marlin Rifle, 319 N.J. Super. 359, 371-72 (App. Div. 1999). Respondent did not dispute G.M.'s remaining testimony. Nor was the court required to accept the expert's view of respondent's credibility. see State v. Jenewicz, 193 N.J. 440, 466 (2008).
The State argues the court erred by failing to give more weight to G.M.'s concerns. The State first points to a portion of testimony by Officer Brian McDonnell from the April 9, 2010 FRO hearing, which the State contends corroborates G.M.'s version of the March 14, 2010 incident. The State did not offer McDonnell's testimony into evidence at the hearing. However, Judge Critchley stated that, because he presided over the April 9 hearing and remembered it, he would "incorporate by reference the prior proceedings," including McDonnell's testimony.
At the April 9 FRO hearing, McDonnell testified that, when he responded to G.M.'s March phone call, he observed respondent clinging to respondent's car. He saw respondent exit the car, pull G.M. from the car, "hold her from her arms behind her, pull[] her away from the vehicle onto the sidewalk," and "just kind of push[] her away," onto the retaining wall. He observed respondent turn and walk away, and then respondent and G.M. "yell[] back and forth" at each other. Although McDonnell testified on direct that respondent had thrown G.M. over the wall "face forward," on cross-examination he testified that respondent did not lift G.M. off the ground, and that respondent did not do anything "excessive" to remove G.M. from his vehicle.
The State complains the trial court never addressed this testimony in its decision. However, Judge Critchley expressly stated that he would consider the April 9, 2010 FRO proceedings, and he was not required to specifically comment on McDonnell's testimony. Moreover, as set forth above, McDonnell's testimony ultimately did not indicate that respondent did anything excessive to G.M., and did not convince Judge Critchley to enter an FRO.
The State notes that Dr. Guller found G.M. credible. It is the family judge, however, that is tasked with assessing a witness's credibility. see N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). Further, Judge Critchley "refereed a good portion" of the parties' domestic violence disputes, and presided over their divorce proceedings. The judge was thus in a position superior to Dr. Guller to evaluate G.M.'s testimony. Therefore, the judge could properly find "[t]he evidence of harassment and 'outbursts' described by [G.M.] more aptly described frustration surrounding the marital break-up," rather than respondent's propensity for violence. see One Marlin Rifle, supra, 319 N.J. Super. at 372.
The State points to Dr. Schlosser's opinion that respondent's weapons should be forfeited because he failed to avoid conflicts with G.M. in spite of Dr. Guller's warning that such conflicts would be detrimental to his job. However, Judge Critchley found that opinion problematic. The judge stated that, in his experience, "if the standard is set that one party" in an adversarial divorce is told "you can't have this happen again," the other party "many times will go out of their way to make sure that scenario does come up." Judge Critchley was entitled to rely on his broader experience in handling the full range of the parties' conflicts, and his expertise as a family judge. see M.M., supra, 189 N.J. at 279.
The State contends there is no evidence in the record to support that inference. The State specifically points to our comments that, in the August 2010 incident, respondent declined to tell G.M. who would be watching their children "when a response would clearly have diffused the situation," and that the evidence suggested "he intentionally escalated matters by surreptitiously leaving with the children out of the back of police headquarters." F.M., supra, slip op. at 13. We did note, however, that G.M.'s calls to respondent's superiors were "perhaps less justified" in the August 2010 incident. Id. at 15.
In any event, the evidence shows G.M. was not blameless in the numerous other conflicts between the parties. Indeed, G.M. testified to slapping respondent and grabbing his groin after telling him that she felt "like f***ing [him] up." Thus, there was sufficient evidence in the record to support the court's finding that Dr. Schlosser failed to consider G.M.'s role in fueling the parties' conflicts.
The State contends the court should have assigned greater weight to the experts' conclusions that respondent should not have his weapons returned to him. As set forth above, the court had reasons to doubt the experts' analyses. see Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) ("The weight to which an expert opinion is entitled can rise no higher than the facts and reasoning upon which that opinion is predicated.").
Moreover, as the court noted, neither expert diagnosed respondent with a disorder, and neither expert identified any incident indicating respondent had improperly used a firearm. Dr. Guller stated that, although respondent should have just "walked away," he did not believe respondent had ever meant to threaten, intimidate, or harm G.M. While the FFD evaluations were relevant, the court's conclusion that the State failed to prove respondent would pose a threat to G.M. if his weapons were returned was not wide of the mark. see J.D., supra, 429 N.J. Super. at 43.
We affirm the judge's decision to deny the State's motion to forfeit respondent's weapons. The matter is remanded for dissolution of the stay and return of the appropriate weapons, given that respondent is no longer a member of the police department. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION