Opinion
DOCKET NO. A-0608-14T3
11-23-2015
W.S., Plaintiff-Respondent, v. D.C.F., Defendant-Appellant.
Todd Wilson, attorney for appellant. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-15-000204-15. Todd Wilson, attorney for appellant. Respondent has not filed a brief. PER CURIAM
Defendant, D.C.F., appeals from a final restraining order (FRO) entered by the Family Part on August 12, 2014, pursuant to the New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse and remand.
We use initials to identify the parties pursuant to Rule 1:38-3 (d)(10).
I.
We derive the following facts and procedural history from the record. On August 12, 2014, the parties appeared in the Family Part for a hearing on the complaint filed by plaintiff requesting entry of a FRO against her ex-husband, the defendant. Neither party was represented by counsel.
The hearing commenced with the testimony of plaintiff, which was provided in response to questioning by the trial court. On a particular evening, plaintiff heard her son, K.F., have a "phone altercation" with his father, defendant, D.C.F. After the call ended, K.F. advised plaintiff that defendant had sent K.F. a text message calling K.F. a "liar." Plaintiff explained that K.F.'s emotional state was fragile because he had recently completed an eighty day inpatient substance abuse rehabilitation program which he had entered after "nearly dying."
There was no testimony regarding the date of the incident which provided the basis for the filing of the complaint or entry of the FRO.
According to plaintiff, on the morning following K.F.'s phone altercation with defendant, he called her on the telephone, but she did not answer. Plaintiff immediately sent a text message to defendant advising that she would have K.F. call him. Within one minute of sending the text, plaintiff's home doorbell rang, and defendant was standing outside of the door.
Plaintiff testified that she understood defendant was at her home to pick up their son. Plaintiff advised defendant that K.F. did not want to speak with him and did not want to "come downstairs." She told defendant, "[w]hatever altercation you had on the phone with him last night, he's mad. I don't want to get in the middle of it."
After a few minutes of what plaintiff described as "civil" conversation, defendant told plaintiff "to go upstairs and tell [K.F.] to come downstairs." Plaintiff told defendant that she was "not going to turn [her] household upside down" and that K.F. was not going to come downstairs. She told defendant to call K.F. later to "work it out."
According to plaintiff, defendant said he wanted to enter the house to speak with K.F. She told defendant he was not welcome in her home. Using a number of expletives, defendant called plaintiff names and criticized her parenting skills. Plaintiff then told defendant repeatedly to "leave [her] property," to "get off of [her] property," and that she wanted him "to leave now." Defendant's derogatory statements to her became "louder and louder," drawing the attention of her neighbors. She said it "was embarrassing more than anything at that point."
Plaintiff told defendant she was going to call the police and that she wanted him "to leave now." In response, defendant told her to call the "f'g police" and that he would be "right here." Plaintiff had her phone with her and, as she called the police, defendant exited the property, got in his vehicle and departed. "[T]wo minutes later" defendant returned in his vehicle, "pulled up" in front of plaintiff's house, and then the police arrived.
In response to further questioning by the court, plaintiff explained that in April 2014, K.F. was in the hospital after a drug overdose. While she and defendant were in the hospital, defendant had "gotten in [her] face" and told her that "this is [her] fault" and made other derogatory comments about her. Hospital staff called the police and also informed defendant he was not to return. Plaintiff did not seek a restraining order at that time. She had obtained a temporary restraining order against defendant three years before based upon a claim of harassment.
The trial judge asked plaintiff if "there were any other incidents of past acts of domestic violence?" Plaintiff stated there had "always been verbal harassment" during which defendant would curse at her and make derogatory statements about her to K.F. She testified that, "[a]lmost every time he's in my presence, it escalates to him calling me names and getting in my face . . . ." In response to a request by the trial court for plaintiff to detail the language used by defendant during the instances, she said defendant referred to her using expletives and made other statements "attacking [her] as a person."
At the conclusion of the trial judge's questioning of plaintiff, the judge asked defendant if he had any questions for her. In response, defendant said, "yes." Defendant then began his cross examination of plaintiff. Defendant asked plaintiff a series of questions regarding text messages they had exchanged regarding their son and the circumstances surrounding the restraining order that had been entered three years earlier. During the questioning, defendant made a statement regarding the prior restraining order. In response, the court said to defendant, "[w]hoa, whoa, stop." Plaintiff interrupted and asked defendant, "[w]hat are you talking about?" The court stated, "[s]top. I'm trying to figure it out."
The court then directed a series of questions to defendant regarding the prior restraining order. During the course of the court's questioning, defendant was asked, "[w]hat about the current incident that brings us here?" In response, defendant provided testimony regarding the events which were the subject of the pending complaint. The court also asked, and defendant answered, many questions regarding text messages he and plaintiff had exchanged.
In the midst of the court's questioning of defendant, the court told the defendant, "[h]ere's your problem. You got a couple [of] problems." The trial judge said he "combed through the facts, particularly, the facts on the day of the predicate offense in this particular case." The court said that, "it's not even so much that you showed up, right, because she had texted you that she had told [K.F.] to call you, right?" The court informed defendant that:
The problematic point is you have a conversation. She's telling you what's going on with [K.F.]. You leave. Then you come back. See, the coming back is indicative of a frame of mind that says, you know what, I can control you. I can do what I want with regard to you. See, that's where the problem lies: in your coming back.
Defendant asked for an opportunity to "comment a little bit about what we just talked about . . . ." The court denied the request, telling defendant, "[n]o, no, because here's the problem: for criminal trespass, all that needs to be established is a person is normally not licensed or privileged to enter upon a structure and they do so." Defendant immediately told the trial judge that he "didn't get to talk about that." In response, the court stated, "[y]ou came back."
After additional colloquy between the court and defendant, the court made a legal finding. The court stated that plaintiff "established by a preponderance of the evidence the trespass" which was the predicate act for the complaint. The court's colloquy with defendant then continued. The court noted that defendant admitted the incident in the hospital had occurred. Defendant advised the court he had not yet addressed the incident and asked if he could question plaintiff further about it.
The court denied defendant's request, stating "[w]e're done. We're done." Defendant made a plea to the court. Defendant said, "[w]ell, can I ask—please request some leniency and I explain why? Because I see how you're ruling, but, Your Honor,--." The court ended the discussion, and stated, "[n]o, no, let me rule first and then you can understand where we're going."
The court again found plaintiff established by a preponderance of the evidence the predicate act of criminal trespass. The court also made a conclusory finding there was a "history," but did not make any findings of fact as to what constituted the "history." Lastly, the judge noted that he was "particularly troubled by the returning to the house once asked to leave" which he found indicative of an escalation of domestic violence. Based upon those findings, the court entered the FRO that is the subject of this appeal.
II.
On appeal, defendant makes two arguments. He contends his due process rights were violated when the trial court refused his request to provide testimony, interrupted his attempt to cross-examine plaintiff, and considered matters outside of the allegations in the complaint. Defendant also contends there was insufficient evidence presented by plaintiff to establish an entitlement to a FRO.
This court's role in reviewing a trial court's findings following a non-jury trial is limited. We are bound by a trial court's factual findings that are "supported by adequate, substantial, credible evidence in the record." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "[A]n 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 competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (alteration in original) (quoting Rova Farms, supra, 65 N.J. at 484); See also D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013), certif. denied, 216 N.J. 587 (2014). "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).
Based upon our review of the record, we conclude defendant was denied his fundamental right to due process by the manner in which the proceeding was conducted. A party to a civil proceeding is entitled to a fair hearing, with the protections of due process. J.D. v. M.D.F., 207 N.J. 458, 478 (2011); K.F. v. Y.Z., 184 N.J. 599, 604 (2005); H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003). Due process protections include the opportunity to be heard and require "procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses . . . ." Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005). Trial courts must "ensure that [a] defendant [in a domestic violence proceeding] is afforded an adequate opportunity to be apprised of those allegations" upon which the complaint is based and to prepare for those allegations. J.D., supra, 207 N.J. at 480.
The trial court did not provide defendant with an opportunity to cross-examine plaintiff. Defendant's cross-examination of plaintiff was interrupted by the trial court's questioning of him. When the court's questioning of defendant ended, defendant's request to ask additional questions of plaintiff was summarily denied. That denial deprived defendant of his due process right to cross-examine plaintiff. Peterson, supra, 374 N.J. Super. at 124.
Defendant was also denied his due process right to be apprised of the allegations against him and to be afforded an opportunity to prepare for them. J.D., supra, 207 N.J. at 480. Plaintiff testified regarding prior alleged acts of domestic violence about which defendant had not been apprised prior to trial. Defendant advised the court he was unaware plaintiff would present testimony regarding the alleged prior acts. Defendant stated that plaintiff was lying about a prior alleged incident of domestic violence and advised the court that "the only way [he could] prove [plaintiff was lying] is to bring that information back at a separate time." Defendant was unprepared for the testimony because the incident about which plaintiff testified was not alleged in the complaint.
At another point, defendant referenced an allegation about which he was learning for the first time. Defendant told the court, "Well, now that she's brought this up, if I have the opportunity I can absolutely bring back the information, the police report and the complaint she filed to prove that she's making---she made stuff up in that report." While defendant's statement "was not cloaked in the lawyer-like language of an adjournment request . . . it was sufficient to raise the due process question for the trial court . . . ." J . D ., supra, 207 N.J. at 480. --------
While the trial court could properly permit admission of the evidence regarding prior alleged acts of domestic violence that were not alleged in the complaint, it should have "recognized" that by "allow[ing]" the "history to be expanded," it "permitted an amendment to the complaint" and should have "proceed[ed] accordingly." J.D., supra, 207 N.J. at 479-80. The trial court was required to "ensure that defendant [was] afforded an adequate opportunity to be apprised of those allegations and to prepare." Id . at 480 (citing H.E.S., supra, 175 N.J. at 324). The trial court erred when it permitted plaintiff to testify regarding alleged prior acts of domestic violence and then denied defendant the opportunity to retrieve evidence relevant to his defense to the allegations. J.D., supra, 207 N.J. at 480.
Defendant was also denied the opportunity to testify on his own behalf. While the trial court was not "without means to control testimony or to require that parties present testimony and evidence relevant to the issues in dispute," its obligation was to see that that "justice [was] accomplished and to conduct and control [the] proceedings in a manner that [] best serve[d] that goal." J . D ., supra, 207 N . J. at 482. The trial court prevented defendant from testifying about matters relevant to the alleged predicate act and prior incidents of domestic violence. The court denied defendant's request to "comment" about the allegation that he had "returned" to plaintiff's home. The court's refusal to permit defendant to testify about whether he had "returned" is of particular significance because the court relied upon defendant's alleged "return" to plaintiff's home as a basis for the granting of the FRO. As a matter of fundamental fairness, defendant had the right to fully present his testimony in support of his defense. The trial court erred when it denied defendant that right. See, e.g., Cardell, Inc. v. Piscatelli, 277 N.J. Super. 149, 155 (App. Div. 1994) ("the right to present witnesses is an essential element in the conduct of a trial.") (citation and internal quotation marks omitted).
We conclude that the trial court's denial of defendant's due process rights requires a reversal of the FRO and a remand for a new hearing. The denial of defendant's rights rendered the presentation of evidence incomplete. We, therefore, find it unnecessary to address defendant's argument that there was insufficient evidence presented to support the issuance of the FRO. We add only the following comments.
Under the PDVA, a final restraining order may be issued only if the court finds the plaintiff established by a preponderance of the evidence that the defendant committed an act of domestic violence. N.J.S.A. 2C:25-29(a); Franklin v. Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006). "Domestic violence" is defined in N.J.S.A. 2C:25-19(a) to mean the "occurrence of one or more of" certain enumerated acts, including defiant trespass under N.J.S.A. 2C:18-3b. A person is guilty of "defiant trespass" if, "knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by . . . [a]ctual communication to the actor." N.J.S.A. 2C:18-3b(1).
The commission of one of the enumerated predicate acts of domestic violence under the PDVA does not mandate the entry of a FRO. Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006). A judge should not issue a FRO unless the order is necessary "to protect the victim from an immediate danger or to prevent further abuse." Id. at 127 (citing N.J.S.A. 2C:25-29b).
When a trial court determines a FRO is appropriate, it must articulate findings of fact and conclusions of law as to the "predicate act" and the need to protect the victim. R. 1:7-4; J.D., supra, 207 N.J. at 488 (reversing the entry of a FRO in part based upon the trial court's failure to "sufficiently articulate findings and conclusions consistent with the statutory standards"); Silver, supra, 387 N.J. Super. at 128 ("the court should consider and make specific findings on the previous history of domestic violence, if any, between the plaintiff and defendant, and how that impacts, if at all, on the issue of whether a restraining order should issue.") (emphasis added).
The trial court here failed to make the requisite findings of fact and conclusions of law regarding defendant's alleged commission of the predicate act and the need to protect the victim. On remand, the grant or denial of plaintiff's request for a FRO must be supported by the requisite findings.
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