C.M.C. v. M.J.C. (FV-12-2274-21, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 26, 2022
• Docket: A-0070-21
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0070-21

C.M.C.,1

Plaintiff-Respondent,

v.

M.J.C.,

Defendant-Appellant. _______________________

Submitted October 12, 2022 – Decided October 26, 2022

Before Judges Messano and Rose.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-2274-21.

Law Office of Jarred S. Freeman, LLC, attorney for appellant (Jarred S. Freeman, on the brief).

Musto & Alevras, attorneys for respondent (George Scott Alevras, on the brief).

1 We use initials in accordance with Rule 1:38-3(d)(10), and pseudonyms for ease of reference. PER CURIAM

Defendant M.J.C. appeals from an August 6, 2021 final restraining order

(FRO) issued in favor of his daughter, plaintiff C.M.C., pursuant to the

Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (PDVA). A

Family Part judge entered the FRO after finding defendant committed the

predicate act of simple assault, N.J.S.A. 2C:12-1(a), and N.J.S.A. 2C:25-

19(a)(2), on June 1, 2021, and an FRO was necessary to protect plaintiff from

future acts of domestic violence. Defendant contends the trial judge erroneously

admitted plaintiff's surreptitiously recorded video recording that depicted the

incident, and wrongly determined plaintiff established the need for final

restraints. Having considered defendant's contentions in view of the record and

the governing law, we disagree and affirm.

I.

The facts were established at the one-day bench trial, during which both

parties were represented by counsel. Plaintiff testified and introduced into

evidence her video recording of the June 1, 2021 incident, and text messages

between the parties on June 2, 2021. Defendant testified on his own behalf and

called as witnesses his daughter, J.C. (Jayne), and a family friend, D.R.

(Donald).

A-0070-21 2 According to the undisputed trial record, plaintiff was twenty-three years

old at the time of the incident and had lived with defendant until the prior year.

At some point, plaintiff's mother had committed suicide and her father had

remarried. The incident that precipitated the filing of the domestic violence

complaint occurred when the parties, defense witnesses, and other family

members were vacationing in California. In the late afternoon of June 1, 2021,

plaintiff and defendant were playing pool in the family's rental home. The

parties had been drinking all day and argued about plaintiff's relationship with

her paternal aunts.

Plaintiff testified defendant was "extremely angry" and "out of nowhere,

started yelling about [having been] raped by his father." At that point, plaintiff

placed her cellphone in her pocket and began recording their conversation. Over

defense counsel's objection, the video recording was admitted into evidence and

played in court. Although the video is unclear, the audio captured the parties'

conversation.2 During direct examination, plaintiff narrated some segments of

the recording that were difficult to discern.

2 We have reviewed the recording, which was provided by plaintiff in her responding appendix. The recording spans about thirteen minutes. A-0070-21 3 For example, following an escalating barrage of insults and derogatory

remarks heard on the recording, plaintiff told defendant to "back up." During

her testimony plaintiff clarified that she said, "[B]ack up, you're stepping on me

like you're going to hit me." Minutes later, plaintiff repeatedly told defendant,

"You should go." Plaintiff testified she made these statements because

defendant "continue[d] coming at [her]." Ultimately, scuffling noises are

captured on the recording, with plaintiff screaming multiple times, stating:

"You just put your hands on me. . . . This is why mom killed herself, it's because

of you."

Plaintiff told the trial judge she sought an FRO because she was "deeply

afraid of [defendant] and who he is and what he could do to [her]." Plaintiff

testified she had trouble sleeping, stating: "I constantly have dreams about my

father choking me and coming to kill me." At the time of trial, the parties lived

within a one-minute walk of each other.

Plaintiff also recounted past incidents of domestic violence, commencing

in 2002, when she was five years old. 3 Three years later, in 2005, when her

parents were in the process of divorcing, defendant "punched a wall" and "threw

3 The judge interrupted plaintiff's testimony but later summarized her complaint about this incident, stating defendant had grabbed plaintiff by the bottom lip and pulled her out of the bathtub. A-0070-21 4 a vacuum cleaner, which hit [plaintiff's] spine." In 2007, defendant punched the

door of his pickup truck after plaintiff spilled soda in the truck. In 2017,

defendant dragged plaintiff by the hair, held her down, and struck her with an

open hand. Since 2018, defendant has disparaged plaintiff by stating she is "a

compulsive liar"; "an alcoholic"; and "a drug addict." Defendant has hit her in

the back of the head, claiming he was only joking. Defendant also bent back

her fingers "to the point where [she is] in pain", stating: "[D]on't marry a man

whose hands are smaller than yours because they're weaker."

On cross-examination, plaintiff acknowledged she had no photographs

depicting any injuries caused by defendant. Plaintiff claimed defendant was

"skilled at making sure marks don't appear."

Jayne and Donald both testified they saw plaintiff after the incident but

did not notice any signs of injury. Jayne testified plaintiff held a grudge against

defendant. Donald claimed plaintiff went "off her meds" the day before the

incident.

Not surprisingly, defendant denied plaintiff's account of the incident.

Instead, he claimed plaintiff swung a pool stick at him from across the room.

Defendant also denied all prior acts of domestic violence. He claimed plaintiff

A-0070-21 5 "was thrown out" of his house "because of her drug abuse, and her alcohol abuse,

and her constant manipulation and lying to [him]."

Defendant asserted he sought an FRO against plaintiff because he wanted

her "to get help" so she did not "wind up like her mother." Defendant said he

feared plaintiff would abuse drugs and alcohol and "wind up dead." He claimed

he was afraid of plaintiff "to an extent" because she was "on a mission to destroy

[him] for some reason."

After she returned to New Jersey, on June 5, 2021, plaintiff filed her

domestic violence complaint in Sayreville Municipal Court, alleging defendant

assaulted her four days prior in California. Plaintiff was issued a TRO.

Defendant filed a cross-complaint, asserting plaintiff assaulted and harassed him

during the same incident. Defendant also alleged plaintiff damaged his home

on prior occasions. He was issued a cross-TRO. On June 23, 2021, plaintiff

amended her complaint, asserting the domestic violence history summarized

above.

Immediately following summations, the trial judge issued an oral

decision. Referencing the testimony of each witness, the trial judge credited

plaintiff's account and found her video recording was "the best evidence" of the

incident. The judge concluded defendant "grabbed [plaintiff], pushed her, [and]

A-0070-21 6 put his hand around her neck as she said." The judge thus found plaintiff proved

the predicate act of assault. Addressing whether plaintiff established the need

for an FRO, the judge specifically acknowledged the prior domestic violence

history between the parties and concluded restraints were necessary to protect

plaintiff from further abuse. Accordingly, the judge granted plaintiff's

application for an FRO. This appeal followed. 4

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED BY ISSUING THE [FRO] BECAUSE THE COURT IMPROPERLY ADMITTED INTO EVIDENCE[], AND BASED ITS DECISION ON, AN ILLEGALY OBTAINED RECORDING.

A. The trial court erred by applying New Jersey law when deciding the admissibility of the recording because it was made when both parties were in California.

POINT II

THE TRIAL COURT ERRED BY GRANTNG A[N] [FRO] BECAUSE IT IS NOT NECESSARY TO PROTECT PLAINTIFF.

4 The trial judge also denied defendant's application for an FRO, dismissed his cross-complaint, and dissolved the cross-TRO. Defendant does not appeal from the denial of his application. A-0070-21 7 II.

Our limited scope of review of a trial court's findings is well established.

See Cesare v. Cesare, 154 N.J. 394, 411 (1998). "[W]e grant substantial

deference to the trial court's findings of fact and the legal conclusions based

upon those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013).

We will not disturb the court's factual findings and legal conclusions "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." Cesare, 154 N.J. at 412 (quoting Rova Farms Resort, Inc.

v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).

Deference is particularly appropriate here, where the evidence is largely

testimonial and hinges on a court's ability to make credibility assessments.

Cesare, 154 N.J. at 412. It is axiomatic that the judge who observes the

witnesses and hears their testimony has a perspective the reviewing court simply

does not enjoy. See Pascale v. Pascale, 113 N.J. 20, 33 (1988). We also accord

deference to the factual findings of Family Part judges because that court has

"special jurisdiction and expertise in family matters." Cesare, 154 N.J. at 413.

Conversely, a trial judge's decision on a purely legal issue is subject to de novo

review on appeal. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).

A-0070-21 8 The entry of an FRO under the PDVA requires the trial court make certain

findings, pursuant to a two-step analysis. See Silver v. Silver, 387 N.J. Super.

112, 125-27 (App. Div. 2006). Initially, the court "must determine whether the

plaintiff has proven, by a preponderance of the credible evidence, that one or

more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id.

at 125. The trial court should make this determination "in light of the previous

history of violence between the parties." Ibid. (quoting Cesare, 154 N.J. at 402).

Secondly, the court must determine "whether a restraining order is

necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1)

to -29(a)(6), to protect the victim from an immediate danger or to prevent further

abuse." Silver, 387 N.J. Super. at 127; see also J.D. v. M.D.F., 207 N.J. 458,

476 (2011) (noting the importance of the second Silver prong). Pertinent to this

appeal, these factors include, but are not limited to: "The previous history of

domestic violence between the plaintiff and defendant, including threats,

harassment and physical abuse." N.J.S.A. 2C:25-29(a)(1). In those cases where

"the risk of harm is so great," J.D. 207 N.J. at 488, the second inquiry "is most

often perfunctory and self-evident." Silver, 387 N.J. Super. at 127.

In the present matter, defendant ostensibly challenges the trial judge's

findings under the first Silver prong by arguing plaintiff's video recording of

A-0070-21 9 their conversation was improperly admitted into evidence. Defendant contends

because California law criminalizes the recording of confidential

communications absent the consent of all parties to the conversation, and the

judge's decision was based on the recording, the FRO should be vacated. We

find insufficient merit in defendant's argument, to warrant discussion in a written

opinion beyond the following brief comments. R. 2:11-3(e)(1)(E).

Defendant acknowledges no authority supports his argument that a

California penal statute5 should render inadmissible a surreptitiously recorded

conversation in a domestic violence trial in New Jersey. We have, however,

5 To support his position, defendant cites a portion of the California Penal Code, which prohibits the intentional recording of confidential communications, "without the consent of all parties." Cal. Penal Code § 632(a). The statute further states "evidence obtained . . . in violation of this section is not admissible in any judicial . . . proceeding." Cal. Penal Code § 632(d). However, defendant fails to cite the following section of the Code, which provides an exception for domestic violence victims:

Notwithstanding the provisions of this chapter, . . . a victim of domestic violence who is seeking a domestic violence restraining order from a court, and who reasonably believes that a confidential communication made to him or her by the perpetrator may contain evidence germane to that restraining order, may record that communication for the exclusive purpose and use of providing that evidence to the court.

[Cal. Penal Code § 633.6(b).] A-0070-21 10 stated in a similar context that "evidence illegally obtained in violation of the

Constitution is generally deemed inadmissible only in a criminal prosecution

and only because of the illegal conduct of government officials." Tartaglia v.

Paine Webber, 350 N.J. Super. 142, 148 (App. Div. 2002). Conversely, here,

the recording was made by a private citizen and admitted into evidence during

a Family Part proceeding to support her application for an FRO.

Moreover, the Legislature enacted the PDVA "to assure the victims of

domestic violence the maximum protection from abuse the law can

provide." N.J.S.A. 2C:25-18. In furtherance of that objective, the PDVA

expressly authorizes a plaintiff to file a complaint "in a court having jurisdiction

over the place where the alleged act of domestic violence occurred, where the

defendant resides, or where the plaintiff resides or is sheltered." N.J.S.A. 2C:25-

28(a); see also State v. Reyes, 172 N.J. 154, 167 (2002) (recognizing "the

specific jurisdictional authorization" set forth in N.J.S.A. 2C:25-28(a), enabling

the Family Part to issue a domestic violence restraining order when a plaintiff

alleges the predicate act occurred in another state). We conclude the admission

of plaintiff's recording during her FRO trial is consonant with the PDVA's

objectives and its jurisdictional authorization.

A-0070-21 11 Nor are we persuaded the trial judge erroneously determined plaintiff

established the need for an FRO. Without expressly referencing the factors

enumerated in N.J.S.A. 2C:25-29(a), the judge nonetheless determined plaintiff

established a prior domestic violence history between the parties. See N.J.S.A.

2C:25-29(a)(1); see also Cesare, 154 N.J. at 401-02 (noting the PDVA does not

require incorporation of all factors but does require evaluation of any prio r

history of domestic violence). The judge's decision was based, in large part, on

his credibility assessment of the parties, specifically finding "[plaintiff]'s

testimony rings true," and defendant's testimony "doesn't make sense." Giving

deference to those findings, see Cesare, 154 N.J. at 412, we discern no basis to

disturb the judge's decision, see D.N., 429 N.J. Super. at 596.

Affirmed.

A-0070-21 12