R.R.C. VS. P.F. (FV-03-1794-18, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 5, 2019
• Docket: A-5138-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5138-17T3

R.R.C.,

Plaintiff-Respondent,

v.

P.F.,

Defendant-Appellant. ___________________________

Submitted March 26, 2019 – Decided April 5, 2019

Before Judges Fisher and Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-1794-18.

Mark J. Molz, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

The parties are the unmarried parents of a four-year-old child; the time

they separately care for the child is delineated by court order. The events that led to this action, commenced pursuant to the Prevention of Domestic Violence

Act, N.J.S.A. 2C:25-17 to 35, occurred while plaintiff R.R.C. ("Rona," a

fictitious name), the child's mother, was in a Browns Mill park with the child.

The child's father, defendant P.F. ("Philip," also a fictitious name), arrived and,

according to Rona, engaged in acts of harassment, N.J.S.A. 2C:33-4, and

criminal sexual contact, N.J.S.A. 2C:14-3. After hearing the testimony of both

parties and an eyewitness – Rona's sister – the judge found a predicate act of

harassment and a need for protection from future domestic violence, and issued

a final restraining order.

Philip appeals, arguing:

I. THE TRIAL COURT ERRED WHEN IT FAILED TO ACT IMPARTIALLY BY ASKING LEADING QUESTIONS, ADMITTING HEARSAY EVIDENCE AND GOING BEYOND THE FOUR CORNERS OF THE TEMPORARY RESTRAINING ORDER.

II. THE TRIAL COURT ERRED IN FINDING THAT A PREDICATE ACT TOOK PLACE.

III. THE TRIAL COURT ERRED IN FINDING THAT A [FINAL RESTRAINING ORDER] WAS REQUIRED TO PROTECT PLAINTIFF FROM IMMEDIATE DANGER.

We find insufficient merit in these arguments to warrant further discussion in a

written opinion. R. 2:11-3(e)(1)(E). We add only a few brief comments.

A-5138-17T3 2 We reject Philip's Points II and III by referring to our standard of review,

which requires deference to a family court judge's findings of fact. J.D. v.

M.D.F., 207 N.J. 458, 482 (2011); Cesare v. Cesare, 154 N.J. 394, 412-13

(1998). The judge had the parties before him, they testified in his presence, and

he assessed their credibility. The judge found from the testimony of both Rona

and her sister that Philip arrived at the park and closely followed Rona around.

Ultimately, without permission, Philip "grabbed [Rona's] backside" and asserted

she had "nothing to grab anymore." Rona testified that while Philip treated this

unwanted touching as a joke, she did not; Philip's conduct "shocked" her, made

her feel "uncomfortable," and "upset" her. Despite Rona's loud response and

obvious distress when he grabbed her, Philip persisted and made additional

comments "about her body" that need not be repeated here. The judge found

that Rona and her sister testified credibly about this incident, while he did not

find credible Philip's assertion that nothing happened. The judge made very

specific findings about the demeanor of the witnesses and thoroughly explained

why he found that Philip was not credible. These findings are entitled to our

deference. Cesare, 154 N.J. at 412; Pascale v. Pascale, 113 N.J. 20, 33 (1988).

We also observe that the judge's conclusion that Philip's conduct constituted

A-5138-17T3 3 harassment is well supported and warranted by his factual findings. 1 We also

defer to the judge's determination that an FRO was necessary to protect Rona

from future domestic violence. See Silver v. Silver, 387 N.J. Super. 112, 126-

27 (App. Div. 2006).

We lastly turn to Point I and Philip's argument that the judge was not

impartial because he posed leading questions and expansively permitted

testimony about issues that he claims were not relevant to this domestic violence

action. We reject this as well.

First, it bears mentioning that while, at trial, Philip was represented by

counsel, Rona was not. So, it was quite natural and permissible for the trial

judge to elicit from Rona the testimony he believed necessary for a complete

understanding of the events in the park and surrounding circumstances about

their history and the parenting-time order; Rona is a layperson and was clearly

unschooled in trial procedures. See J.D., 207 N.J. at 478-82. After a thorough

review of the trial transcript, we are satisfied the judge's direct examination of

Rona was entirely proper and that the manner and mode of Rona's presentation

1 The judge rejected Rona's claim that Philip's touching of her constituted criminal sexual contact. A-5138-17T3 4 did not deprive the represented Philip – whose attorney posed numerous

objections during Rona's direct examination – of due process.

We note in particular that Philip complains about what he asserts were

leading questions posed by the judge. We find no merit in these arguments. Our

evidence rules do not bar all leading questions on direct examination. The

applicable evidence rule states only that leading questions on direct are

impermissible but not when "necessary to develop the witness' testimony."

N.J.R.E. 611(c). This is particularly relevant in domestic violence cases,

because there are many times, as here, when one or both sides are unrepresented

by counsel and the judge is left to elicit an unrepresented party's version of

events. And because domestic violence judges are often called upon to hear and

decide many such cases on a daily basis, we allow considerable leeway when

the judge must conduct the examination of witnesses. Even at that, the record

reveals that the judge asked very few leading questions and none in important

areas that might not fall within N.J.R.E. 611(c)'s exception.

For example, although Philip complains that the following are leading

questions, he is in fact incorrect:

 "Did you [and Philip] cohabitate together for a period of time?"

A-5138-17T3 5  "So tell me about the incidents alleged in the complaint. You're making allegations of harassment and criminal sexual contact and your complaint talks about some incidents occurring on April 23rd, 2018; May 7th, 2018. So why don't you just sort of take me through I guess starting with the events of April 23rd."

 "You indicated also in your complaint the defendant has a drinking problem. What are you talking about there?"

 "You have an allegation here that says defendant uses the child as control against plaintiff. What are you talking about there?"

These questions weren't leading. A leading question is that which "suggests

what the answer should be or contains facts which in the circumstances can and

should originate with the witness." State v. Abbott, 36 N.J. 63, 79 (1961). Some

of the judge's questions were geared toward steering the witness to a particular

subject matter, but the judge never suggested an answer in any of his inquiries.

Our clear sense of the overall direct examination of Rona was of a judge simply

seeking to elicit the evidence required to decide the case before him.2

2 Philip also argues that the judge revealed a bias by eliciting testimony about the parenting time order, which he claims had nothing to do with the domestic violence action. Because context in such matters is always important, see, e.g., Murray v. Murray, 267 N.J. Super. 406, 410 (App. Div. 1995) (admonishing judges to be on guard because plaintiffs might improperly seek a finding of domestic violence for the purpose of "secur[ing] rulings on critical issues" in

A-5138-17T3 6 Affirmed.

related family litigation), we find no error in the admission of that testimony let alone a suggestion that the judge was anything less than fair and impartial. Indeed, we find the contention that the judge exhibited bias to be completely unwarranted and frivolous. A-5138-17T3 7