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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1208-19T2
C.J.C.,
Plaintiff-Respondent,
v.
K.A.M.,
Defendant-Appellant. ______________________________
Submitted November 17, 2020 – Decided December 3, 2020
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-0237-20.
Helmer, Conley & Kasselman, PA, attorneys for appellant (Patricia B. Quelch, of counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM Plaintiff C.J.C. (Carl) and defendant K.A.M. (Kathy) resided together,
raising two children, for approximately five years – a period interrupted only for
a time when Carl was incarcerated. At the end of June 2019, their relationship
ended and Carl was asked to leave their apartment; Carl vacated the premises on
August 4, 2019. Two days later, Carl took the children to the doctor. After the
appointment, he reached out to Kathy, telling her they needed to talk. Carl
arrived at Kathy's apartment, where a physical encounter took place. Claiming
he was assaulted by Kathy and harassed by her telephone calls that soon
followed, Carl filed a complaint against Kathy under the Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35. Kathy filed a similar complaint against
Carl, alleging an assault, harassment, criminal mischief, and criminal trespass.
The parties' complaints were the subject of a five-day hearing in
September and October 2019, during which Judge Deborah L. Gramiccioni
heard from numerous witnesses. On October 7, 2019, the last hearing day, the
judge rendered thorough factual findings during the course of a lengthy and
comprehensive oral decision. The judge explained in great detail why she found
Carl to be far more credible than Kathy about the events on which their
complaints were based.
A-1208-19T2 2 Kathy's version, according to the judge, "completely fell apart under
cross[-]examination as contrasted with [Carl's] version which held up
completely under cross[-]examination." For example, there was no genuine
question about whether Kathy kicked Carl in the neck. As the judge found,
Kathy asserted during her direct testimony that she kicked Carl in self-defense
but during cross-examination she acknowledged she kicked him out of
frustration. The judge also explained that while Kathy called numerous other
witnesses, and that those found credible did not corroborate Kathy's version,
other witnesses were either biased or gave testimony unworthy of being credited.
Based on what came from credible witnesses, the judge determined that,
on the day in question, Carl approached Kathy to speak about their daughter's
well-being. Kathy was holding a phone and Carl admitted that he grabbed the
phone from her hand. But then, as the judge found, based on Carl's credible and
"vivid" description, Kathy
threw an overhand closed fisted punch which did land on the side of [Carl's] face, . . . a hugely disproportionate response to [Carl's] grabbing of the cell phone.
Carl has a prosthetic leg, and the judge found that Kathy's foot then came into
contact with the back of Carl's knee, causing him to "tumble down the stairs."
She then "threw a high kick into his throat connecting with [the] left side of his
A-1208-19T2 3 neck," an act the judge found to be "purposeful . . . not reckless." The judge
rejected Kathy's testimony, which fizzled out on cross-examination, that the kick
was an act of self-defense.
Later that same evening, Kathy telephoned Carl numerous times and –
according to the judge's findings, based on recordings made by Carl – Kathy was
"very aggressive" and at times "screaming" at Carl. During these calls, Kathy
admitted to punching Carl in the throat, and she called him, among other things,
"a jackass," "a psychopath," "a stupid mother[]fucker," and "a fuckin' piece of
shit." According to the judge, Kathy was "barely" able to contain her anger,
which "almost boil[ed] over in rage." Kathy also admitted during those calls
that after the fall down the stairs, she kicked him "the fuck back down."
We need not go on. Based on this and other evidence found credible, the
judge found Kathy was the aggressor throughout these events. The judge
concluded that Carl sustained his burden of proving the predicate acts of
harassment and assault and that Kathy failed to sustain her burden of proving
the predicate acts she alleged. The judge's view of the testimony and the
credibility of the witnesses commands our deference because the judge had the
opportunity to see and hear the witnesses testify, while we only have a transcript
to consider. See Cesare v. Cesare, 154 N.J. 394, 412 (1998).
A-1208-19T2 4 Before entering a final restraining order (FRO) based on the predicate acts
of assault and harassment, the judge considered the second so-called Silver
factor, which requires a finding that an FRO is necessary "to protect the victim
from an immediate danger or to prevent further abuse." Silver v. Silver, 387
N.J. Super. 112, 127 (App. Div. 2006) (relying on N.J.S.A. 2C:25-29(a) and
(b)). Judge Gramiccioni correctly observed that when the proven predicate act
is a physical assault, like the assault here, the presence of the second factor is
self-evident, ibid. (recognizing that this factor "is most often perfunctory and
self-evident"); see also A.M.C. v. P.B., 447 N.J. Super. 402, 414 (App. Div.
2016). But the judge also credited evidence that Kathy had been violent toward
Carl in the past in concluding an FRO was needed to prevent further abuse.
Based on these and other findings, the judge entered an FRO in Carl's
favor and dismissed Kathy's complaint. In later proceedings, the judge awarded
Carl $16,286.67 in counsel fees.
In appealing the FRO and the counsel fee order,1 Kathy argues that: (1)
the trial judge's "findings of credibility are not entitled to deference"; (2) the
judge erred by admitting "the photograph of [Carl] and the partial recordings of
1 Kathy does not argue that the judge erred in dismissing her complaint but, even if she were, we would find such an argument lacking in sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). A-1208-19T2 5 telephone conversations" between Carl and Kathy; (3) "the evidence did not
support the issuance of an FRO" against Kathy; and (4) if the FRO is affirmed,
"the amount of the attorney's fees awarded is excessive." We find insufficient
merit in Kathy's first and third arguments to warrant further discussion in this
opinion. R. 2:11-3(e)(1)(E). We reject her fourth argument about counsel fees
substantially for the reasons set forth in Judge Gramiccioni's written opinion on
that subject.
We also find no merit in Kathy's second argument. Kathy contends that a
photograph – offered to show the marks on Carl's neck caused by her kick – was
not adequately authenticated.
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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-1208-19T2
C.J.C.,
Plaintiff-Respondent,
v.
K.A.M.,
Defendant-Appellant. ______________________________
Submitted November 17, 2020 – Decided December 3, 2020
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-0237-20.
Helmer, Conley & Kasselman, PA, attorneys for appellant (Patricia B. Quelch, of counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM Plaintiff C.J.C. (Carl) and defendant K.A.M. (Kathy) resided together,
raising two children, for approximately five years – a period interrupted only for
a time when Carl was incarcerated. At the end of June 2019, their relationship
ended and Carl was asked to leave their apartment; Carl vacated the premises on
August 4, 2019. Two days later, Carl took the children to the doctor. After the
appointment, he reached out to Kathy, telling her they needed to talk. Carl
arrived at Kathy's apartment, where a physical encounter took place. Claiming
he was assaulted by Kathy and harassed by her telephone calls that soon
followed, Carl filed a complaint against Kathy under the Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35. Kathy filed a similar complaint against
Carl, alleging an assault, harassment, criminal mischief, and criminal trespass.
The parties' complaints were the subject of a five-day hearing in
September and October 2019, during which Judge Deborah L. Gramiccioni
heard from numerous witnesses. On October 7, 2019, the last hearing day, the
judge rendered thorough factual findings during the course of a lengthy and
comprehensive oral decision. The judge explained in great detail why she found
Carl to be far more credible than Kathy about the events on which their
complaints were based.
A-1208-19T2 2 Kathy's version, according to the judge, "completely fell apart under
cross[-]examination as contrasted with [Carl's] version which held up
completely under cross[-]examination." For example, there was no genuine
question about whether Kathy kicked Carl in the neck. As the judge found,
Kathy asserted during her direct testimony that she kicked Carl in self-defense
but during cross-examination she acknowledged she kicked him out of
frustration. The judge also explained that while Kathy called numerous other
witnesses, and that those found credible did not corroborate Kathy's version,
other witnesses were either biased or gave testimony unworthy of being credited.
Based on what came from credible witnesses, the judge determined that,
on the day in question, Carl approached Kathy to speak about their daughter's
well-being. Kathy was holding a phone and Carl admitted that he grabbed the
phone from her hand. But then, as the judge found, based on Carl's credible and
"vivid" description, Kathy
threw an overhand closed fisted punch which did land on the side of [Carl's] face, . . . a hugely disproportionate response to [Carl's] grabbing of the cell phone.
Carl has a prosthetic leg, and the judge found that Kathy's foot then came into
contact with the back of Carl's knee, causing him to "tumble down the stairs."
She then "threw a high kick into his throat connecting with [the] left side of his
A-1208-19T2 3 neck," an act the judge found to be "purposeful . . . not reckless." The judge
rejected Kathy's testimony, which fizzled out on cross-examination, that the kick
was an act of self-defense.
Later that same evening, Kathy telephoned Carl numerous times and –
according to the judge's findings, based on recordings made by Carl – Kathy was
"very aggressive" and at times "screaming" at Carl. During these calls, Kathy
admitted to punching Carl in the throat, and she called him, among other things,
"a jackass," "a psychopath," "a stupid mother[]fucker," and "a fuckin' piece of
shit." According to the judge, Kathy was "barely" able to contain her anger,
which "almost boil[ed] over in rage." Kathy also admitted during those calls
that after the fall down the stairs, she kicked him "the fuck back down."
We need not go on. Based on this and other evidence found credible, the
judge found Kathy was the aggressor throughout these events. The judge
concluded that Carl sustained his burden of proving the predicate acts of
harassment and assault and that Kathy failed to sustain her burden of proving
the predicate acts she alleged. The judge's view of the testimony and the
credibility of the witnesses commands our deference because the judge had the
opportunity to see and hear the witnesses testify, while we only have a transcript
to consider. See Cesare v. Cesare, 154 N.J. 394, 412 (1998).
A-1208-19T2 4 Before entering a final restraining order (FRO) based on the predicate acts
of assault and harassment, the judge considered the second so-called Silver
factor, which requires a finding that an FRO is necessary "to protect the victim
from an immediate danger or to prevent further abuse." Silver v. Silver, 387
N.J. Super. 112, 127 (App. Div. 2006) (relying on N.J.S.A. 2C:25-29(a) and
(b)). Judge Gramiccioni correctly observed that when the proven predicate act
is a physical assault, like the assault here, the presence of the second factor is
self-evident, ibid. (recognizing that this factor "is most often perfunctory and
self-evident"); see also A.M.C. v. P.B., 447 N.J. Super. 402, 414 (App. Div.
2016). But the judge also credited evidence that Kathy had been violent toward
Carl in the past in concluding an FRO was needed to prevent further abuse.
Based on these and other findings, the judge entered an FRO in Carl's
favor and dismissed Kathy's complaint. In later proceedings, the judge awarded
Carl $16,286.67 in counsel fees.
In appealing the FRO and the counsel fee order,1 Kathy argues that: (1)
the trial judge's "findings of credibility are not entitled to deference"; (2) the
judge erred by admitting "the photograph of [Carl] and the partial recordings of
1 Kathy does not argue that the judge erred in dismissing her complaint but, even if she were, we would find such an argument lacking in sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). A-1208-19T2 5 telephone conversations" between Carl and Kathy; (3) "the evidence did not
support the issuance of an FRO" against Kathy; and (4) if the FRO is affirmed,
"the amount of the attorney's fees awarded is excessive." We find insufficient
merit in Kathy's first and third arguments to warrant further discussion in this
opinion. R. 2:11-3(e)(1)(E). We reject her fourth argument about counsel fees
substantially for the reasons set forth in Judge Gramiccioni's written opinion on
that subject.
We also find no merit in Kathy's second argument. Kathy contends that a
photograph – offered to show the marks on Carl's neck caused by her kick – was
not adequately authenticated. She argues that "[t]he photograph is not the
original" and there is "no indication of the date the photograph was taken." Her
argument misapprehends the guiding standards.
The proponent of a photograph must make a prima facie showing of its
authenticity, State v. Joseph, 426 N.J. Super. 204, 220 (App. Div. 2012), a
burden "not designed to be onerous," State v. Hockett, 443 N.J. Super. 605, 613
(App. Div. 2016). It is enough if the record contains sufficient evidence to
support the claim that the photograph depicts "what its proponent claims."
N.J.R.E. 901. Carl testified that the image offered into evidence was taken on
August 6, 2019, and that it depicted the injuries to his neck caused by Kathy's
A-1208-19T2 6 kick. Based on this testimony alone, the judge was entitled to admit the
photograph and, in considering her ruling, we find no abuse of discretion. See
Brenman v. Demello, 191 N.J. 18, 31 (2007). Indeed, the admission of the
photograph – even if we could somehow assume the judge erred in admitting it
– caused no harm or prejudice because, as Kathy acknowledges in her appeal
brief, she had admitted that "she kicked [Carl's] neck."
Kathy also argues that the audio recordings captured by Carl of her later
phone calls – the content of which we have briefly alluded – should not have
been admitted because she believes that they too were not properly authenticated
and were incomplete. Much has been written about the admissibility of audio
recordings in criminal matters and the multi-part test devised by the Court in
State v. Driver, 38 N.J. 255, 287 (1962), but even in criminal matters the test is
not so rigid as to preclude the admission of audio recordings even when they are
incomplete or partially inaudible, see State v. Nantambu, 221 N.J. 390, 404-11
(2015). Kathy did not deny at the hearing that it was her voice on the recordings,
and she did not argue that the recordings were altered, only that what Carl
presented was incomplete. We reject that contention.
Kathy argues in this court that the judge admitted "partial recordings."
That's not accurate. What the record reveals is that, at the outset of the hearing,
A-1208-19T2 7 Carl offered selected portions of the phone calls he recorded. When Kathy's
counsel objected to their completeness, Carl then produced all his recordings,
which were played for the court during the thorough voir dire. Notwithstanding
that full turnover, Kathy's counsel continued to press the objection at the hearing
that the recordings were incomplete, but this was based only on the fact that, as
Carl testified, he did not immediately start recording one conversation until ten
minutes elapsed. That circumstance doesn't make the recordings incomplete. It
just means the complete recording did not contain the complete conversation.
The trial judge soundly admitted into evidence only the complete version, not
the edited portions offered earlier in the proceedings.
To the extent Kathy's argument at the hearing about admission of the
recordings had any substance at all, it only went to the weight of the recorded
evidence, not its admissibility. We find no abuse of discretion.
Affirmed.
A-1208-19T2 8