Opinion
DOCKET NO. A-2341-14T1
06-24-2016
M.L.R., Plaintiff-Respondent, v. J.A.S., Defendant-Appellant.
Evan F. Nappen, P.C., attorneys for appellant (Louis P. Nappen, on the brief). Anthony J. Harvatt, II, attorney for respondent.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Gooden Brown. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-05-0158-15. Evan F. Nappen, P.C., attorneys for appellant (Louis P. Nappen, on the brief). Anthony J. Harvatt, II, attorney for respondent. PER CURIAM
Defendant J.A.S. appeals from a final restraining order (FRO) issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act), in favor of plaintiff M.L.R. The FRO reflects the judge's conclusion that the parties had a "dating relationship," and defendant had committed "criminal mischief [and] assault."
The testimony at trial, held on December 8, 2014, largely centered around events that took place at the Tropicana Casino in Atlantic City on the night of September 20, 2014. Officer George Mancuso of the Atlantic City Police Department testified that he and his partner responded to a verbal dispute in the casino garage. Upon arrival, Mancuso observed that hotel security had both parties separated, and "[t]hey had [defendant] detained and [plaintiff] was just kind of standing off to the side." Both parties were visibly upset, and defendant appeared to be intoxicated.
Mancuso asked plaintiff what happened, and she replied that there was "a verbal argument" but never claimed that defendant had struck her or otherwise assaulted her. However, plaintiff told Mancuso that defendant broke her cell phone shortly before security guards arrived at the scene. Plaintiff did not wish to press charges or seek a temporary restraining order (TRO) that evening.
Plaintiff testified that she and defendant had been in an intimate relationship for approximately eight months and had resided together in plaintiff's apartment for approximately three weeks prior to September 20. They were in Atlantic City that night to watch a mixed martial arts competition. Plaintiff was the designated driver of defendant's vehicle, since he had consumed some drinks at home before they left and had several more during the event.
According to plaintiff, defendant became loud and obnoxious while playing the slot machines, and she persuaded him it was time to leave the casino. When they were inside defendant's car in the parking garage, plaintiff saw defendant ingest Klonopin, which was prescribed by a doctor for anxiety and aggression. Defendant became verbally aggressive, and attempted to drive the car while seated in the front passenger seat. Plaintiff was able to put the car in park, take the keys and exit. She decided to call 9-1-1 and showed defendant her cell phone with the number already dialed.
At this point, defendant approached her and twisted her wrist, ripping the cell phone away in the process. He pushed her to the ground. Plaintiff resisted as defendant tried to drag her back to the car. Defendant then threw plaintiff's phone across the parking garage, breaking it. Plaintiff began screaming and security guards appeared.
Plaintiff told police that defendant did not strike her, but that he twisted her arm and broke her phone. Plaintiff did not wish to press charges against defendant out of consideration for his young son. However, when plaintiff arrived home later that day, defendant and two State Troopers were already at the house. While collecting his belongings, defendant said to plaintiff, "I hope that you die." Defendant also told plaintiff, "please call me tomorrow, we will discuss this. I love you and if there's anything else that I took that you want, please let's talk about this tomorrow." Plaintiff grew concerned about defendant's comments and applied for a TRO later that day.
Plaintiff also testified about her tumultuous relationship with defendant and his prior acts of violence against her, the most recent of which had occurred on September 13, 2014, when, during an altercation, defendant smashed plaintiff's laptop computer, slammed her against the wall and choked her. Later that evening, plaintiff locked defendant out of the house. Defendant's keys and cell phone were in the house so he attempted to gain reentry by kicking and breaking the front door. Plaintiff identified a photo of the damage. She eventually voluntarily let defendant back into the house that evening. Plaintiff also introduced videotaped footage of the incident in the Tropicana Casino garage, up to the arrival of security guards.
The videotape is not part of the appellate record. --------
Defendant also testified at the hearing. He is a member of the United States Coast Guard and was serving as an instructor for weapons training and defensive boat driving at the Special Missions Training Center in Camp Lejeune, North Carolina. However, he had been on temporary duty/humanitarian transfer at the Coast Guard's Cape May station because his mother was terminally ill.
Defendant confirmed that on the evening of September 20, 2014, he and plaintiff went to the Tropicana to watch the "cage fights." Both were drinking and both wanted to gamble after the fights. He admitted that he was getting loud as he played the slot machines, and, at some point, plaintiff approached him from behind, hit the cash out button, took the slip and told defendant that they "need to leave now." Defendant was admittedly upset.
According to defendant, within a few seconds of getting into his car, plaintiff put the car in park, got out of the car, and a verbal argument ensued. Plaintiff took her cell phone out and told defendant that she was going to video record the argument and show it to her friends. Defendant grabbed the phone, plaintiff grabbed defendant's arm and fell when he moved away. According to defendant, that was the only physical contact that occurred during the verbal altercation. Defendant admitted throwing the phone to the side, but he never intended to break it.
Defendant testified that issuance of an FRO "could possibly lead to discharge and loss of [his] job" as a firearms instructor. In regard to the September 13, 2014 incident, defendant testified that he did not choke plaintiff. Instead, defendant claimed that plaintiff tried swallowing a bottle of Xanax and Prednisone that evening. Defendant placed his hands down plaintiff's throat, "preventing her from swallowing the pills. [He] actually called 9-1-1 that night as well." Defendant further testified that he did not smash plaintiff's laptop, nor did he attempt to kick down plaintiff's apartment door that evening. He did admit, however, that he banged on the door. When shown a photo of the damaged door, defendant stated that he could not say whether it was damaged before the incident.
Defendant admitted that his son, ex-wife, mother and brother all lived in New Jersey. Despite these connections, defendant claimed he intended to retire to Brevard County in Florida where he had his permanent residence. Defendant admitted that he takes Klonopin for his "anxiety[,] for stress related to [his] mother's cancer," but denied taking any on the night of September 20, 2014.
After concluding the parties were in a "qualifying relationship," the judge moved on to consider whether "defendant committed an act or acts of domestic violence towards . . . plaintiff, and whether those act or acts . . . warrant entry of a [FRO]." He recounted the testimony each party offered, including the differing accounts each gave regarding not only the events of September 20, but also September 13, 2014.
Nevertheless, the judge characterized the testimony as "[not] all that divergent." He explained:
In many cases neither party's necessarily . . . lying. It's simply that they have a different view of what happened and how we see things and how we remember things and how we recount things depends upon where we are at a particular moment or a point in life. So both of the parties, in my view, were . . . credible.The judge concluded that "regardless of where [he came] down on the factual issue[s], there's acts of domestic violence." He explained:
[E]ven assuming that the defendant simply grabbed [plaintiff's] phone because he was concerned about her taping an argument that was private[,] [a]s part of that grab, that involves touching her, and that's an assault. It's as simple as that. He tossed the phone. The phone broke. Whether it was broken before or not[,] that qualifies as criminal mischief. Going back to [September 13], he put his hands on her. Whether it was a defensive measure or not, or simply to protect her, it still qualifies as an assault. He banged on the door to the extent that it broke. The picture's there. That qualifies as criminal mischief.Citing our decision in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), the judge then considered whether the issuance of an FRO was necessary, ultimately concluding that, despite defendant's "residence out of the area," "the opportunity for these parties to have contact is . . . sufficiently great." He issued the FRO, and this appeal followed.
Defendant argues the judge erred in finding he committed predicate acts of domestic violence. Additionally, defendant contends that the FRO was unnecessary to protect plaintiff from immediate danger or future acts of domestic violence. We have considered these arguments in light of the record and applicable legal standards. Because we agree that the judge failed to find adequate facts proving that defendant committed a predicate act of domestic violence as defined by the Act, we reverse and remand for further proceedings.
We begin by noting some general principles. "The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "However, no special deference is accorded a trial judge's interpretation of the law." Connell v. Diehl, 397 N.J. Super. 477, 491 (App. Div.), certif. denied, 195 N.J. 518 (2008).
The Act defines "[d]omestic violence" as "the occurrence of" certain offenses "inflicted upon a person protected under th[e] [A]ct." N.J.S.A. 2C:25-19. Assault, N.J.S.A. 2C:12-1, and criminal mischief, N.J.S.A. 2C:17-3, are two such predicate offenses. Ibid. An actor commits simple assault if he "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1(a)(1). "Bodily injury" is "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a). "Not much is required to show bodily injury. For example, the stinging sensation caused by a slap is adequate to support an assault." N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997) (citing State v. Downey, 242 N.J. Super. 367, 371 (Law Div. 1988)). "Under N.J.S.A. 2C:17-3(a)(1), an individual is guilty of criminal mischief if he or she '[p]urposely or knowingly damages tangible property of another.'" N.T.B. v. D.D.B., 442 N.J. Super. 205, 217 (App. Div. 2015) (alteration in original) (quoting N.J.S.A. 2C:17-3(a)(1)).
In our review of non-jury domestic violence trials, we have frequently emphasized the importance of the judge fulfilling his obligations under Rule 1:7-4(a), requiring the court to "find the facts and state its conclusions of law thereon" in all non-jury actions. See Finamore v. Aronson, 382 N.J. Super. 514, 523 (App. Div. 2006); T.M. v. J.C., 348 N.J. Super. 101, 105 (App. Div.), certif. denied, 175 N.J. 78 (2002). "The trial court must clearly state its factual findings and correlate them with the relevant legal conclusions, and the failure to perform this function hinders appellate review." Kamen v. Egan, 322 N.J. Super. 222, 226 (App. Div. 1999) (citing Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)).
Here, the judge found both parties were credible. Without making specific factual findings, he then considered whether there were predicate acts of violence assuming arguendo defendant's version of events was true. Unfortunately, the legal conclusions the judge drew from the assumed facts were incorrect. In other words, defendant's "touching" of plaintiff on the night of September 20, 2014, was not a simple assault, unless the judge found that defendant was attempting "to cause or purposely, knowingly or recklessly caus[ing] bodily injury to" plaintiff. N.J.S.A. 2C:12-1(a). The judge made no such finding. Similarly, regarding the September 13, 2014 incident, the judge found there was an assault simply because defendant "put his hands on [plaintiff]." That, too, is legally insufficient.
Defendant also did not commit criminal mischief if he tossed plaintiff's cell phone and it happened to break, as the judge reasoned. The judge was required to find that defendant purposefully or knowingly intended to break the phone. He specifically made no such finding. He also never found that defendant did purposefully or knowingly damage plaintiff's laptop computer on September 13, 2014.
At most, the judge may have implicitly found criminal mischief occurred on September 13 when defendant broke plaintiff's apartment door, based upon defendant's own testimony and the picture in evidence. However, plaintiff's complaint for a TRO never alleged damage to the door as an act of criminal mischief. We have held that "[i]t constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint." J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998).
In short, the facts assumed by the judge were insufficient to prove, as a matter of law, that defendant committed a predicate act of assault or criminal mischief as pled on either September 13 or 20, 2014. However, the testimony of plaintiff, if believed, clearly would support such conclusions. Given the divergent testimony in this case, the obligation to assess credibility and make specific factual findings was particularly important, and we decline the opportunity to do so ourselves. See Cesare, supra, 154 N.J. at 412 ("[b]ecause a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses'") (alteration in original) (quoting Pascale v. Pascale, 113 N.J. 20, 38 (1988)).
Instead, we reverse the order under review and remand the matter to the Family Part to make specific findings of fact and conclusions of law based upon the testimony adduced at trial. See, e.g., T.M., supra, 348 N.J. Super. at 107 (remanding domestic violence hearing so trial judge could make "findings and conclusions with respect to the evidence which he based his conclusion that plaintiff had met his burden of proving domestic violence against defendant on the present complaint"). We do not address defendant's second argument that, pursuant to Silver, supra, the issuance of an FRO was unnecessary. Given the amount of time that has passed since trial, should the judge conclude that defendant committed a predicate act of domestic violence, we leave it to his sound discretion whether further testimony at a plenary hearing is necessary to determine if an FRO should issue.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION