V.R.J. v. K.R.J. (FV-09-1145-21, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 27, 2022
• Docket: A-2377-20
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2377-20

V.R.J.,

Plaintiff-Respondent,

v.

K.R.J.,

Defendant-Appellant. ________________________

Submitted September 20, 2022 – Decided September 27, 2022

Before Judges Geiger and Susswein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-1145-21.

K.R.J., appellant pro se.

Respondent has not filed a brief.

PER CURIAM Defendant K.R.J. 1 appeals from a final restraining order (FRO) entered in

favor of plaintiff V.R.J., pursuant to the Prevention of Domestic Violence Act

(the Act), N.J.S.A. 2C:25-17 to -35. We affirm.

We take the following facts from the record. Plaintiff is defendant's aunt.

Plaintiff and defendant lived together in plaintiff's house in Jersey City.

In November 2019, plaintiff and defendant got into an argument.

Defendant then threw plaintiff down and started punching her. Defendant also

threatened to kill plaintiff four times if she did not move out in 30 days.

In May 2020, defendant struck the outside of plaintiff's bedroom door with

a stick causing a large hole in the door. On another occasion in 2020, defendant

started an argument with plaintiff and threatened to "kick [her] ass." In

November 2020, defendant stuck his finger in plaintiff's face and threatened to

"kick [her] ass and kill [her]." Also, on or about December 1, 2020, defendant

threatened to "slap the shit out of" plaintiff and that "there is nothing nobody

can do to stop him" because it was only plaintiff and defendant living together.

Plaintiff had a rule in her house that the lights were to be turned off at

1:00 a.m. because of the electric bill. In the Summer of 2020, at about 2:00 a.m.,

1 We refer to the parties by initials to protect the victim's identity. R. 1:38- 3(d)(10). A-2377-20 2 plaintiff told defendant the rule and he threatened her that if she turned off the

lights "he'd kick [her] ass." Plaintiff testified that defendant also threatened to

"kick [her] ass" on another occasion.

Plaintiff further testified that defendant would walk around with his cell

phone in her face and would take pictures of them and post them on Facebook.

On December 4, 2020, 2 at 1:30 a.m., defendant started flashing a flashlight

in plaintiff's face. An argument broke out and then defendant punched plaintiff

in the face. After this, the parties began to wrestle. That same day, plaintiff

applied for and was granted a temporary restraining order (TRO) against

defendant.3 On December 15, 2020, an amended TRO was entered against

defendant that specified predicate acts of terroristic threats, N.J.S.A. 2C:12-3;

and harassment, N.J.S.A. 2C:33-4.

The trial court conducted a two-day final hearing. Plaintiff testified that

she felt there was a need for the final restraining order because she did not feel

safe in the house with defendant, and even after the temporary restraining order

she still feared defendant.

2 Plaintiff testified that this incident occurred on December 5, 2020, but the TRO alleged that it occurred on December 4, 2020. 3 Defendant's appendix does not include the December 4, 2020 TRO.

A-2377-20 3 The trial judge found that plaintiff was a protected person under the Act.

The judge found defendant committed the predicate act of terroristic threats

when he threatened to "slap the shit out of plaintiff" and said "there was nothing

. . . she could do about it." The judge found the extensive prior history of

incidents between the parties supported her finding the predicate act of

terroristic threats.

The judge also found defendant committed the predicate act of harassment

based on the following conduct. Defendant continuously screamed and yelled

in plaintiff's ear and defendant flashed lights in plaintiff's face with a flashlight

on numerous occasions. Defendant pointed his finger in plaintiff's face and told

her to "f**king leave his things alone." On numerous occasions defendant

would get up in the middle of the night and proceed to the kitchen with a

flashlight with the purpose to alarm and annoy plaintiff.

The judge also found that defendant would also record plaintiff without

her knowing and post to a social media site. The judge found that these were

incidents that occurred on an almost regular basis during the period of November

to December 2020.

The judge found that defendant and plaintiff got into an argument in May

2020 when defendant accused plaintiff of breaking the pump on his body wash.

A-2377-20 4 Defendant retrieved a stick and started banging on a door with it. This caused

plaintiff to fear of her own safety. Plaintiff's exhibit P-4 showed a hole in the

center of the door and a dent near the doorknob. The judge found this was

"alarming conduct."

In 2019, defendant pushed plaintiff and pummeled her with his fists. In

February 2020, defendant repeatedly threatened to kill plaintiff if she did not

move out within thirty days.

The judge found that defendant's frequent harassing and threatening

behavior became more violent after plaintiff's mother died. The judge

considered "the prior history of domestic violence."

The judge found plaintiff to be "extremely credible" and that her

testimony was candid, reasonable, consistent, corroborated by the evidence that

she produced, and inherently believable. In contrast, the judge found

defendant's testimony to be unbelievable. She noted that defendant felt he had

the right to be indignant towards plaintiff.

The judge granted a FRO to plaintiff, finding she had a "valid fear for her

safety" and needed a FRO to protect her from "the immediate threat of domestic

violence" and the "likelihood of reoccurrence." This appeal followed.

Defendant raises the following points for our consideration.

A-2377-20 5 POINT ONE

THE COURT COMMITTED MULTIPLE ACTS OF JUDICIAL MISCONDUCT BY REPEATEDLY FALSIFYING FACTS OF THE DEFENDANT'S TESTIMONY BIASING THE FACT-FINDING RECORD.

POINT TWO

THE COURT FURTHER ENGAGED IN JUDICIAL MISCONDUCT BY HIGHLIGHTING TWO OFF- TOPIC REALITIES AND IN ONE INSTANCE GAVE APPEARANCE OF RELIGIOUS BIAS.

POINT THREE

THE COURT ENGAGED IN JUDICIAL MISCONDUCT BY INFLUENCING THE PLAINTIFF'S TESTIMONY ON DIRECT BY MAKING LEADING DISCOVERY QUESTIONS AND PROXIMALLY INSERTING WORDS AND PHRASES AND THE VISUALIZATIONS AND CONCEPTS THAT FOLLOW INTO THE PLAINTIFF'S DIRECT TESTIMONY THAT ALLOWED THE PLAINTIFF TO COSIGN TO AS OPPOSED TO GIVING INDEPENDENT DETAILS OF HER ACCOUNT.

POINT FOUR

THE COURT COMMITTED ERROR AND POSSIBLE JUDICIAL MISCONDUCT -- PARTIALITY -- BY ALLOWING THE PLAINTIFF TO SPEAK TO ALLEGATIONS BEYOND THE SCOPES OF THE FINAL TRO AND MADE FINDINGS ACCORDING TO SUCH TESTIMONY THAT SHOULD HAVE BEEN INADMISSIBLE.

A-2377-20 6 POINT FIVE

THE COURT SHOWED EGREGIOUS JUDICIAL MISCONDUCT IN DISPLAYING APPARENT EXTRAORDINARY COMMITMENT TO SUPPORTING THE PLAINTIFF'S NARRATIVE AND DENIGRATING THE DEFENDANT BY COMMITTING MULTIPLE OMISSIONS OF IMPORTANT FACTUAL CONTEXTS DURING BOTH THE TRIAL AND THE FINDINGS WHILE COMMITTING REPEATEDLY IGNORING EVIDENCE DAMAGING TO THE PLAINTIFF, AND ESSENTIALLY SWITCHING THE BURDEN OF PROOF.

We affirm substantially for the reasons expressed by the trial judge in her

detailed oral decision. Defendant's arguments are not supported by the record

and lack sufficient merit to warrant much discussion in a written opinion. R.

2:11-3(e)(1)(E). We add the following comments.

We "accord substantial deference to Family Part judges, who routinely

hear domestic violence cases." C.C. v. J.A.H., 463 N.J. Super. 419, 428 (App.

Div. 2020) (citing J.D. v. M.D.F., 207 N.J. 458, 482 (2011)). When reviewing

"a trial court's order entered following [a] trial in a domestic violence matter,

we 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) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). We

do not disturb the "factual findings and legal conclusions of the trial judge unless

A-2377-20 7 [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. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Deference is particularly

appropriate when, as here, the evidence is largely testimonial and involves

credibility issues, because the judge who observes the witnesses and hears the

testimony has a perspective the reviewing court does not enjoy. Pascale v.

Pascale, 113 N.J. 20, 33 (1988) (citing Gallo v. Gallo, 66 N.J. Super. 1, 5 (App.

Div. 1961)).

The Act defines domestic violence as the commission of a predicate

offense enumerated in N.J.S.A. 2C:25-19(a) against a plaintiff who meets the

definition of a "victim of domestic violence" set forth in N.J.S.A. 2C:25-19(d).

J.D., 207 N.J. at 473. Terroristic threats and harassment are predicate offenses

under the Act. N.J.S.A. 2C:25-19(a)(3), (13).

A person commits the petty disorderly persons offense of harassment if

they, "with purpose to harass another," make communications "in offensively

coarse language, or any other manner likely to cause annoyance or alarm."

N.J.S.A. 2C:33-4(a). In evaluating a defendant's intent, a judge is entitled to use

"[c]ommon sense and experience." State v. Hoffman, 149 N.J. 564, 577 (1997).

A-2377-20 8 Because direct proof of intent is often absent, "purpose may and often must be

inferred from what is said and done and the surrounding circumstances," and

"[p]rior conduct and statements may be relevant to and support an inference of

purpose." State v. Castagna, 387 N.J. Super. 598, 606 (App. Div. 2006); see

also H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) ("'[A] purpose to harass may be

inferred from' . . . common sense and experience." (quoting Hoffman, 149 N.J.

at 577)).

A person commits the third-degree crime of terroristic threats "if he [or

she] threatens to commit any crime of violence with the purpose to terrorize

another," N.J.S.A. 2C:12-3(a), or if he or she "threatens to kill another with the

purpose to put [her] in imminent fear of death under circumstances reasonably

causing the victim to believe the immediacy of the threat and the likelihood that

it will be carried out," N.J.S.A. 2C:12-3(b).

The entry of a final restraining order requires the trial court to make

certain findings. The trial 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." Silver v. Silver,

387 N.J. Super. 112, 125 (App. Div. 2006). Second, the court also must

determine whether a FRO is required to protect the party seeking restraints from

A-2377-20 9 future acts or threats of domestic violence. Id. at 126-27. This second

determination "is most often perfunctory and self-evident, the guiding standard

is whether a restraining order is necessary . . . to protect the victim from an

immediate danger or to prevent further abuse." Id. at 127.

Applying these standards and based on our careful review of the record,

we conclude that the trial judge's credibility determinations, factual findings,

and legal conclusions are amply supported by substantial credible evidence

adduced during the trial. We discern no indication that the trial judge engaged

in any form of judicial misconduct. We find no evidence that the judge was

biased, falsified facts, improperly influenced plaintiff's testimony, or ignored

facts in defendant's favor.4

Nor do we find any evidence that the judge improperly considered

allegations beyond the scope of the complaint. We recognize that "[d]ue process

requires that a finding of domestic violence be based upon the act or acts of

domestic violence alleged in the complaint." Pazienza v. Camarata, 381 N.J.

Super. 173, 184 (App. Div. 2005) (citing H.E.S., 175 N.J. at 324-25). Here, the

4 While the judge's findings included minor changes to defendant's testimony, the changes can hardly be characterized as a falsification of his testimony. The changes did not alter the substance of the testimony or the weight of the evidence against defendant. A-2377-20 10 discrepancy between the date of the incident on either December 4 or December

5, 2020, does not involve a separate incident beyond the allegations in the TRO.

Moreover, Family Part judges must consider evidence of a previous

history of domestic violence in determining: (1) whether the defendant acted

with intent to harass or terrorize, see H.E.S., 175 N.J. at 327; Castagna, 387 N.J.

Super. at 606; (2) whether a FRO should be issued based on a predicate act,

Silver, 387 N.J. Super. at 125-126; and (3) whether a FRO is needed to protect

the plaintiff against future acts of domestic violence, id. at 126. In Cesare, the

Court explained that when determining whether the plaintiff has proven that a

predicate act occurred, "the Act does require that 'acts claimed by a plaintiff to

be domestic violence . . . be evaluated in light of the previous history of violence

between the parties.'" 154 N.J. at 402 (quoting Peranio v. Peranio, 280 N.J.

Super. 47, 54 (App. Div. 1995)). Notably, "a pattern of abusive and controlling

behavior is a classic characteristic of domestic violence . . . ." Silver, 387 N.J.

Super. at 128. Thus, the trial judge did not abuse her discretion by considering

the previous history of domestic violence.

The record demonstrates that defendant committed the predicate acts of

terroristic threats and harassment, and that an FRO was necessary to protect

A-2377-20 11 plaintiff from further acts of domestic violence. The entry of the FRO against

defendant was legally correct and appropriate.

Affirmed.

A-2377-20 12