RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4544-17T2
B.L.F.,
Plaintiff-Respondent,
v.
T.G.C.,
Defendant-Appellant. ___________________________
Submitted April 29, 2019 – Decided May 21, 2019
Before Judges Haas and Susswein.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-0406-18.
Paris P. Eliades Law Firm LLC, attorneys for appellant (Gretchen Fry Rafuse, on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant T.G.C. appeals from a 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 assault, N.J.S.A. 2C:12-1(a),
harassment, N.J.S.A. 2C:33-4(a), and stalking, N.J.S.A. 2C:12-10(b). We
affirm the grant of the FRO insofar as it based on the predicate offense of assault,
but reverse the trial court's findings that defendant committed the predicate acts
of harassment and stalking. We remand the case solely for the purpose of
amending the FRO to delete the references to the harassment and stalking
predicate acts. In all other respects, the FRO based upon assault is affirmed.
I.
To obtain a FRO under the PDVA, a plaintiff must establish two key
elements by a preponderance of the evidence. First, a plaintiff must prove that
defendant committed one of the predicate offenses enumerated in N.J.S.A.
2C:25-19(a). Second, if a predicate offense is shown, plaintiff must show that
a restraining order is necessary for the protection of the victim. Silver v. Silver,
387 N.J. Super. 112, 127 (App. Div. 2006).
B.L.F. and defendant T.G.C. were involved in a short-lived, on-and-off
dating relationship. The trial court found that from the start, defendant sought
to exercise power and control over plaintiff. Defendant, for example, came
uninvited and unannounced to plaintiff's home, her gym, and to restaurants while
she was socializing with other friends. The ill-fated courtship culminated with
A-4544-17T2 2 a physical altercation in the parking lot of a fitness gym during which defendant
grabbed plaintiff by her arm in a manner that caused, as the trial judge found,
"obvious injuries and bruises."
For purposes of this appeal, we focus on that physical altercation.
According to plaintiff's testimony, she saw defendant approaching the parking
lot as she was getting into her car. Plaintiff waited for him to come over. She
was upset because defendant previously appeared unexpectedly at various
locations where she was at. Plaintiff told defendant that she did not want to talk
to him and she started to roll up the car window. Defendant pushed down on
the window, keeping it from closing. Both of them were screaming at each other
and plaintiff testified that by this point in the encounter, she had become
extremely scared because defendant was in "an absolute rage." Plaintiff began
backing up her vehicle when defendant grabbed her left forearm. She testified
that she experienced pain and suffered bruises that were depicted in a
photograph that was introduced into evidence.
Defendant offered a different version of the encounter. He testified that
his arm got stuck in the window, plaintiff started driving, was calling him
"psycho," and was punching his hand. He testified that plaintiff eventually let
A-4544-17T2 3 the window down "maybe a centimeter" and started driving again, at which point
defendant let go and slid to the ground.
The trial judge found plaintiff to be a "truthful and credible witness" and
found "plaintiff's testimony to be far more credible than that of the defendant."
The court observed that while defendant made good eye contact and was well
spoken, "there were contents of his statements that simply defy logic and
common sense." With respect to the physical altercation in the parking lot, the
judge found that defendant's version was not credible, noting, "[t]he suggestion
that somehow, for example, she rolled up the window too fast, that he was unable
to get his arm out, just defies logic." The trial judge in rejecting defendant's
version also commented that, "those bruises [on the plaintiff depicted in the
photograph] don't come from somebody who is trying to get, get their arm out
of the vehicle."
II.
The scope of appellate review of a FRO is limited. A Family Part judge's
fact-finding is binding on appeal when supported by adequate, substantial,
credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Deference
to a trial judge's findings in a domestic violence matter is especially appropriate
when, as in the case before us, the evidence is largely testimonial in nature and
A-4544-17T2 4 involves questions of credibility. Id. at 412. This is so because the trial judge
has the opportunity to see and hear the witnesses as they testify, thereby
developing a "feel for the case" that can never be realized by a review of the
cold record. Ibid.
The deference we give to a trial judge's fact-finding in domestic violence
cases also acknowledges the expertise of Family Part judges, who routinely hear
domestic violence matters. Id. at 413. An appellate court should not disturb the
"factual findings and legal conclusions of the trial judge unless [we are]
convinced that they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice." Id. at 412.
The trial judge in this case issued a thorough, detailed, and well-reasoned
oral opinion. The judge carefully linked his factual findings to the various
domestic violence offenses charged in the complaint. The court concluded that
plaintiff had not established that defendant committed the alleged act of criminal
mischief. The court did find, however, that plaintiff had proved by a
preponderance of the evidence that the defendant committed the predicate acts
of assault, harassment, and stalking.
A-4544-17T2 5 The trial court also found that plaintiff met the second prong of the two -
part Silver test by demonstrating that a FRO was needed to protect her from
future acts of domestic violence. The trial judge concluded that "with the type
of power and control that the defendant has attempted to exert upon her
throughout this very short-term relationship, a final restraining order is
necessary to protect the plaintiff from the immediate danger and further acts of
abuse that the defendant would likely carry out."
III.
On appeal, defendant raises the following contentions:
I. POINT ONE: THE COURT ERRED IN PERMITTING THE PLAINTIFF TO TESTIFY ABOUT EVENTS THAT WERE NOT CONTAINED IN THE COMPLAINT.
II. POINT TWO: THE TRIAL COURT ERRED IN FINDING THE DEFENDANT HAD THE REQUISITE INTENT TO COMMIT THE PREDICATE ACT OF HARASSMENT UNDER N.J.S.A. 2C:34-4.
III. POINT THREE: THE TRIAL COURT ERRED IN FINDING THE DEFENDANT COMMITTED HARASSMENT UNDER N.J.S.A.
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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4544-17T2
B.L.F.,
Plaintiff-Respondent,
v.
T.G.C.,
Defendant-Appellant. ___________________________
Submitted April 29, 2019 – Decided May 21, 2019
Before Judges Haas and Susswein.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-0406-18.
Paris P. Eliades Law Firm LLC, attorneys for appellant (Gretchen Fry Rafuse, on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant T.G.C. appeals from a 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 assault, N.J.S.A. 2C:12-1(a),
harassment, N.J.S.A. 2C:33-4(a), and stalking, N.J.S.A. 2C:12-10(b). We
affirm the grant of the FRO insofar as it based on the predicate offense of assault,
but reverse the trial court's findings that defendant committed the predicate acts
of harassment and stalking. We remand the case solely for the purpose of
amending the FRO to delete the references to the harassment and stalking
predicate acts. In all other respects, the FRO based upon assault is affirmed.
I.
To obtain a FRO under the PDVA, a plaintiff must establish two key
elements by a preponderance of the evidence. First, a plaintiff must prove that
defendant committed one of the predicate offenses enumerated in N.J.S.A.
2C:25-19(a). Second, if a predicate offense is shown, plaintiff must show that
a restraining order is necessary for the protection of the victim. Silver v. Silver,
387 N.J. Super. 112, 127 (App. Div. 2006).
B.L.F. and defendant T.G.C. were involved in a short-lived, on-and-off
dating relationship. The trial court found that from the start, defendant sought
to exercise power and control over plaintiff. Defendant, for example, came
uninvited and unannounced to plaintiff's home, her gym, and to restaurants while
she was socializing with other friends. The ill-fated courtship culminated with
A-4544-17T2 2 a physical altercation in the parking lot of a fitness gym during which defendant
grabbed plaintiff by her arm in a manner that caused, as the trial judge found,
"obvious injuries and bruises."
For purposes of this appeal, we focus on that physical altercation.
According to plaintiff's testimony, she saw defendant approaching the parking
lot as she was getting into her car. Plaintiff waited for him to come over. She
was upset because defendant previously appeared unexpectedly at various
locations where she was at. Plaintiff told defendant that she did not want to talk
to him and she started to roll up the car window. Defendant pushed down on
the window, keeping it from closing. Both of them were screaming at each other
and plaintiff testified that by this point in the encounter, she had become
extremely scared because defendant was in "an absolute rage." Plaintiff began
backing up her vehicle when defendant grabbed her left forearm. She testified
that she experienced pain and suffered bruises that were depicted in a
photograph that was introduced into evidence.
Defendant offered a different version of the encounter. He testified that
his arm got stuck in the window, plaintiff started driving, was calling him
"psycho," and was punching his hand. He testified that plaintiff eventually let
A-4544-17T2 3 the window down "maybe a centimeter" and started driving again, at which point
defendant let go and slid to the ground.
The trial judge found plaintiff to be a "truthful and credible witness" and
found "plaintiff's testimony to be far more credible than that of the defendant."
The court observed that while defendant made good eye contact and was well
spoken, "there were contents of his statements that simply defy logic and
common sense." With respect to the physical altercation in the parking lot, the
judge found that defendant's version was not credible, noting, "[t]he suggestion
that somehow, for example, she rolled up the window too fast, that he was unable
to get his arm out, just defies logic." The trial judge in rejecting defendant's
version also commented that, "those bruises [on the plaintiff depicted in the
photograph] don't come from somebody who is trying to get, get their arm out
of the vehicle."
II.
The scope of appellate review of a FRO is limited. A Family Part judge's
fact-finding is binding on appeal when supported by adequate, substantial,
credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Deference
to a trial judge's findings in a domestic violence matter is especially appropriate
when, as in the case before us, the evidence is largely testimonial in nature and
A-4544-17T2 4 involves questions of credibility. Id. at 412. This is so because the trial judge
has the opportunity to see and hear the witnesses as they testify, thereby
developing a "feel for the case" that can never be realized by a review of the
cold record. Ibid.
The deference we give to a trial judge's fact-finding in domestic violence
cases also acknowledges the expertise of Family Part judges, who routinely hear
domestic violence matters. Id. at 413. An appellate court should not disturb the
"factual findings and legal conclusions of the trial judge unless [we are]
convinced that they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice." Id. at 412.
The trial judge in this case issued a thorough, detailed, and well-reasoned
oral opinion. The judge carefully linked his factual findings to the various
domestic violence offenses charged in the complaint. The court concluded that
plaintiff had not established that defendant committed the alleged act of criminal
mischief. The court did find, however, that plaintiff had proved by a
preponderance of the evidence that the defendant committed the predicate acts
of assault, harassment, and stalking.
A-4544-17T2 5 The trial court also found that plaintiff met the second prong of the two -
part Silver test by demonstrating that a FRO was needed to protect her from
future acts of domestic violence. The trial judge concluded that "with the type
of power and control that the defendant has attempted to exert upon her
throughout this very short-term relationship, a final restraining order is
necessary to protect the plaintiff from the immediate danger and further acts of
abuse that the defendant would likely carry out."
III.
On appeal, defendant raises the following contentions:
I. POINT ONE: THE COURT ERRED IN PERMITTING THE PLAINTIFF TO TESTIFY ABOUT EVENTS THAT WERE NOT CONTAINED IN THE COMPLAINT.
II. POINT TWO: THE TRIAL COURT ERRED IN FINDING THE DEFENDANT HAD THE REQUISITE INTENT TO COMMIT THE PREDICATE ACT OF HARASSMENT UNDER N.J.S.A. 2C:34-4.
III. POINT THREE: THE TRIAL COURT ERRED IN FINDING THE DEFENDANT COMMITTED HARASSMENT UNDER N.J.S.A. 2C:33-4(A) BECAUSE THE DEFENDANT WAS NO [SIC] ENGAGING IN THE PROHIBITED COMMUNICATION AS PER THE STATUTE.
IV. POINT FOUR: THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT COMMITTED THE PREDICATE ACT OF STALKING BECAUSE
A-4544-17T2 6 THE DEFENDANT'S ACTIONS ON APRIL 23 AND APRIL 29 DID NOT CONSTITUTE A "COURSE OF CONDUCT" AS REQUIRED BY THE STATUTE.
V. POINT FIVE: THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT COMMITTED THE PREDICATE ACT OF STALKING BECAUSE THE DEFENDANT'S ACTIONS ON APRIL 23 AN APRIL 29 WOULD NOT "CAUSE A REASONABLE PERSON TO FEAR FOR HER SAFETY OR SUFFER OTHER EMOTIONAL DISTRESS."
VI. POINT SIX: THE TRIAL COURT ERRED IN FINDING THE DEFENDANT COMMITTED THE PREDICATE ACT OF ASSAULT BECAUSE THERE WAS NO INTENT TO CAUSE BODILY HARM.
VII. POINT SEVEN: THE TRIAL COURT ERRED IN NOT HAVING TOLERANCE FOR THE DEFENDANT'S BEHAVIOR AS A DISAPPOINTED SUITOR PER SWEENY V. HONACHEFSKY, 313 N.J. SUPER. 443 (APP. DIV. 1998).
VIII. POINT EIGHT: THE TRIAL COURT ERRED IN THE FINDING THAT A DOMESTIC VIOLENCE RESTRAINING ORDER WAS NECESSARY TO PROTECT THE VICTIM FROM AN IMMEDIATE DANGER OR TO PREVENT FURTHER ABUSE UNDER THE SECOND PRONG OF SILVER V. SILVER, 387 N.J. SUPER. 112 (APP. DIV. 2006).
We have considered defendant's contentions on appeal in light of the
record and applicable legal principles and conclude that all but one are without
A-4544-17T2 7 sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).1
The one contention that warrants a more fulsome discussion pertains to
defendant's argument in Point I of his brief that the trial court improperly
allowed plaintiff to testify about two unplanned encounters that were not
specifically identified in the amended complaint. We conclude that it was
improper for the trial court to consider testimony concerning these two
additional episodes without asking the defendant whether he needed time to
prepare a response to those new allegations. It is not clear on this record whether
and to what extent plaintiff's testimony concerning these additional incidents
may have affected the trial's court's conclusions with respect to the harassment
and stalking predicate offenses. It is clear, however, that plaintiff's testimony
about these two additional incidents would have no effect on the trial court's
findings with respect to the assault predicate offense and the need for a FRO
based on that assault.
In J.D. v. M.D.F., 207 N.J. 458 (2011), the Supreme Court confirmed that
"ordinary due process protections apply in the domestic violence context,
notwithstanding the shortened time frames for conducting a final hearing." Id.
1 In view of our decision to vacate the predicate offenses of harassment and stalking based on the argument that defendant makes in Point I of his brief, the issues raised by defendant in Points II, III, IV, and V are moot. A-4544-17T2 8 at 478. "At a minimum, due process requires that a party in a judicial hearing
receive 'notice defining the issues and an adequate opportunity to prepare and
respond.'" Ibid. (quoting McKeown-Brand v. Trump Castle Hotel & Casino,
132 N.J. 546, 559 (1993)). Accordingly, due process "forbids the trial court '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.'" Ibid. The Court in J.D. nonetheless recognized that plaintiffs
seeking protection under the PDVA often "expand upon [the] history of prior
disputes when appearing in open court" and the Court acknowledged that trial
judges often will "attempt to elicit a fuller picture of the circumstances[.]" Id.
at 479.
In domestic violence cases where one or both parties are not represented
by counsel at the FRO hearing, it often is necessary for the trial judge to take a
lead role in posing questions to the parties when they testify. Otherwise, a pro
se party's direct examination might consist of a rambling narrative, unbounded
by questions that serve to focus a litigant's testimony on relevant circumstances
and help to ensure that only competent, admissible (e.g., non-hearsay) evidence
is proffered.
A-4544-17T2 9 The Court in J.D. explained that judges should "use the allegations set
forth in the complaint to guide their questioning of plaintiffs." Id. at 479. The
Court warned judges to avoid posing the sort of questions that would induce a
plaintiff to "abandon the history revealed in the complaint in favor of entirely
new accusations." Ibid.
The record in this case hardly suggests that the trial judge posed questions
that induced plaintiff to "abandon" the allegations in the amended complaint in
favor of entirely new allegations. On the contrary, most of the judge's questions
sought to elicit plaintiff's testimony about incidents that were specified in the
amended complaint, and for the most part, plaintiff's testimony related to the
predicate acts and past history of domestic violence averred in the complaint.
Cf., J.F. v. B.K., 308 N.J. Super. 387, 391 (App. Div. 1998) (trial court
improperly granted a FRO based not on the act of domestic violence alleged in
the complaint but rather on a course of prior conduct that, with the exception of
one incident, was not even mentioned in the complaint).
The trial judge nonetheless posed a question that was reasonably likely to
invite testimony about allegations not found in the amended complaint when the
judge asked plaintiff, "Were there other places and times when the defendant
appeared without notice?" This question did not focus plaintiff's attention to the
A-4544-17T2 10 dated events enumerated – in the amended complaint and thus unwittingly
prompted plaintiff to discuss an unplanned encounter with defendant at a tavern
– an episode that was not mentioned in the amended complaint. Toward the end
of plaintiff's testimony, the judge also asked her, "Do you have any additional
testimony for the Court to consider that you've not already provided?" Plaintiff
responded by discussing yet another incident not mentioned in the amended
complaint where, according to plaintiff's testimony, defendant followed plaintiff
and her friends a considerable distance from one restaurant to another.
We see nothing improper in the trial judge's question concerning any other
incidents when defendant appeared unexpectedly, much less the judge's more
generic question concerning any other evidence that plaintiff might want to
proffer. As to the former question, although it did not focus her attention to an
event specifically mentioned in the amended complaint, it seems to have been
geared to "elicit a fuller picture of the circumstances" as contemplated by the
Supreme Court in J.D., 207 N.J. at 479. The latter omnibus question, moreover,
seems appropriate to ensure that an unrepresented plaintiff has tendered all
relevant evidence. Our concern, therefore, is not that these questions were
asked, but rather with how the trial court responded to plaintiff's answers.
A-4544-17T2 11 The Court in J.D. took pains to explain that trial courts do not have to limit
a plaintiff's testimony to "the precise prior history revealed in the complaint"
because testimony may reveal additional prior events. Ibid. However, the Court
in J.D. emphasized that a trial court "must recognize that if it allows that history
to be expanded, it has permitted an amendment to the complaint and must
proceed accordingly." Id. at 479-80.
How a court should proceed at that point will depend on the
circumstances. As the Court in J.D. noted, some defendants may be well-
prepared to respond to additional allegations while others may not. Id. at 480.
The Court cautioned, however, that "in all cases the trial court must ensure that
defendant is afforded an adequate opportunity to be apprised of those allegations
and to prepare." Ibid. (emphasis added).
In this case, defendant posed no objection to the court's questions or to
plaintiff's answers. Nor did defendant ask for more time to prepare a response
to plaintiff's testimony concerning either additional encounter, even though he
ostensibly knew that he could ask for more time based upon his colloquy with
the judge earlier that day after plaintiff formally amended the complaint to
A-4544-17T2 12 include additional allegations. 2 We are not prepared, however, to assume that a
pro se defendant impliedly waived the right to ask for more time to respond to
new allegations.
In his own testimony, moreover, defendant specifically responded to
plaintiff's allegations regarding the additional incident at the tavern, but did not
respond to the additional incident during which he is alleged to have followed
plaintiff and her friends from one restaurant to another. That at least suggests
the possibility that defendant may not have been prepared to respond to the latter
allegation.
Applying the principles set forth in J.D. to the case before us, we believe
that the trial judge should have treated plaintiff's testimony about the two
additional incidents as the functional equivalent of another amendment to the
complaint. The judge therefore ought to have conducted a colloquy with
defendant like the one that took place earlier that day, see footnote 2,
2 On the morning of the FRO hearing, plaintiff amended her complaint to add what the trial court described as "significant information about predicate acts, as well as, going from no prior domestic violence history to including information about domestic violence history." The court addressed defendant and asked him if he was "in a position to be able to adequately respond to all those [new] allegations." Defendant answered in the affirmative. The FRO hearing was heard that afternoon. A-4544-17T2 13 establishing for the record whether defendant needed more time to prepare a
response to those additional allegations.
In rendering his oral opinion, the trial judge discussed both additional
encounters. We therefore cannot say based on the record before us whether and
to what extent those incidents contributed to the factual basis for the judge's
decision to find that defendant had committed the predicate offenses of
harassment and stalking, since both of those offenses may entail multiple events
constituting a course of conduct. We see no need to remand this case for
clarification by the trial court, however, because the failure to afford defendant
the opportunity to ask for an adjournment to prepare to address the additional
incidents was harmless with respect to the predicate offense of assault.
We are satisfied in this regard that plaintiff's testimony concerning the
two incidents not mentioned in the amended complaint had no bearing on the
trial court's finding that defendant committed the predicate act of assault in the
fitness gym parking lot. The trial judge explicitly rejected defendant's version
of that particular incident, finding that defendant's testimony about that physical
altercation defied logic and was inconsistent with the bruises the victim
sustained as shown in the photograph admitted into evidence.
A-4544-17T2 14 Furthermore, the trial court's consideration of plaintiff's testimony about
the additional incidents would not affect the second Silver prong with respect to
the assault predicate offense. When a judge finds that an act of physical violence
has occurred, the need for entry of a FRO may be presumed. See S.K. v. J.H.,
426 N.J. Super. 230, 233 (App. Div. 2012). It is well-settled in this regard that
the need for a restraining order in cases where physical violence is proven is
"perfunctory and self-evident." Silver, 387 N.J. Super. at 127.
Only one predicate act need be proved to authorize a FRO, and we are
satisfied that in this instance, the assault predicate act alone provides ample
reason to afford plaintiff the protection of a restraining order. That being so,
there is no reason to remand the case to determine whether, if the testimony
regarding the two additional incidents were redacted, the trial court would have
found that plaintiff proved by a preponderance of the evidence that defendant
committed the predicate offenses of harassment and stalking.
For the foregoing reasons, out of an abundance of caution and to obviate
the time, expense, and delay of a remand that would not in any event affect the
ultimate decision to issue a FRO, we reverse the trial court's finding that
defendant committed harassment and stalking. We affirm the trial court's
finding that defendant committed assault and also affirm the trial court's ruling
A-4544-17T2 15 that the issuance of the FRO is needed to protect the victim. We remand this
case solely for the purpose of amending the FRO to delete references to the
harassment and stalking predicate acts. Those amendments to the FRO have no
effect on the restraints barring defendant from having any contact with plaintiff
or on any other remedy ordered by the trial court pursuant to the PDVA.
Affirmed in part, reversed and remanded in part. We do not retain
jurisdiction.
A-4544-17T2 16