D.L. VS. S.L. (FV-02-2100-15, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-1177-15T2
D.L.,
Plaintiff-Appellant,
v.
S.L.,
Defendant-Respondent.
____________________________________
Submitted May 16, 2017 – Decided July 28, 2017
Before Judges Suter and Grall.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Bergen
County, Docket No. FV-02-2100-15.
D.L., appellant pro se.
Law Offices of Crew Schielke, L.L.C., attorneys for
respondent (Crew Schielke, on the brief).
PER CURIAM
Plaintiff D.L. appeals the October 6, 2015 order dismissing
her complaint filed under the Prevention of Domestic Violence Act
(the Act), N.J.S.A. 2C:25-17 to -35, and vacating the June 1, 2015
temporary restraining order (TRO) entered in her favor.1 We
affirm.
I.
On May 31, 2015, D.L. (Debbie) and S.L. (Steve),2 who were
divorcing, met in front of Steve's parents' house for Steve to
drop off their two young children to Debbie, as they agreed to in
a consent order from their matrimonial case. Another matrimonial
order from April 2015 provided the parties "shall not introduce a
significant other to the parties' children." In clear violation
of that order, Steve arrived with his girlfriend in the car along
with the children. Debbie became "upset," entered Steve's vehicle
to pick up their son, while telling Steve he was violating the
order. An argument commenced, which continued as Steve and Debbie
transferred the children from Steve's to Debbie's vehicle. Debbie
testified Steve pushed her repeatedly while she was holding their
son. Steve said that Debbie hit him in the jaw as he was holding
their daughter. When Steve was between the open car door and the
car, Debbie tried to close the door on him, but in the process,
1
Defendant S.L. did not appeal the dismissal of his complaint and
TRO against D.L. arising from the same events.
2
We use initials and pseudonyms throughout the opinion because of
the underlying domestic violence litigation. R. 1:38-3. We have
used first names for the parties because they have the same last
name.
2 A-1177-15T2
she was knocked to the ground. Steve then tried to take their son
into the house, but Debbie wedged herself between him and the
child. She claimed Steve put his hands on her neck and threatened
to kill her. Debbie was secretly making an audio recording on her
phone, just as she had done twelve times prior, but the recording
was allegedly incomplete because it failed to record the threat.
Steve was scratched and Debbie was bruised, although the bruises
were not apparent immediately. She did not seek medical attention.
The police charged Debbie with assault. The parties
separately applied for TROs from a municipal court judge, but no
restraints were granted.
On June 1, 2015, Debbie filed a domestic violence complaint
in the Superior Court, which alleged the predicate offenses of
assault, N.J.S.A. 2C:12-1; harassment, N.J.S.A. 2C:33-4; and
terroristic threats, N.J.S.A. 2C:12-3, and was granted a TRO
against Steve. The complaint did not list any prior incidents of
domestic violence, but did state defendant "is very violent, hot
tempered, intimidating and threatening" and that he "has a history
of drug abuse," and it listed three domestic violence docket
numbers and a matrimonial docket number.
On June 5, 2015, Steve filed a domestic violence complaint
in the Superior Court and applied for a TRO, which was granted.
3 A-1177-15T2
His complaint alleged the predicate acts of assault, harassment
and stalking, N.J.S.A. 2C:12-10(b).
The parties' complaints were tried together before a Family
Division judge who was familiar with the parties through their
matrimonial case. On October 6, 2015, following four days of
trial, the judge entered an order that dismissed Debbie's domestic
violence complaint because the court "determined that the
plaintiff's allegations of domestic violence ha[ve] not been
substantiated," and also dismissed the TRO.3
In its oral October 6, 2015 decision, the court found that
it had the "benefit of seeing the parties . . . during the course
of extended proceedings" and "to observe the parties." The court
presided over their matrimonial action and "had the benefit of
seeing the parties there, too." Because of this, the court stated
it could "speak with a greater ability to address credibility, and
. . . whether they are afraid of the other party."
In addressing the predicate acts, the court found the May 31
confrontation constituted "domestic contretemps" and was not
domestic violence. Neither party proved an intent to harass. The
court found Debbie did not prove Steve committed terroristic
threats and rejected Steve's claim that Debbie stalked him.
3
Steve's domestic violence complaint also was dismissed but that
order was not included in the record on appeal.
4 A-1177-15T2
However, the court found "there was an assault" and that the
parties purposely and recklessly "caused bodily injury to another,
not of a serious nature."
The court declined to enter a restraining order, finding
there was no need to "protect the victim from immediate danger or
to prevent further abuse." The court took into account Debbie's
testimony about the events on May 31 and her agreement in 2014 to
dismiss a prior TRO. Debbie testified she feared Steve but when
asked what she was afraid of answered "I don't know. I'm afraid
that something is going to happen to me." The court did not
"observe any . . . body language" that Debbie was "in fact . . .
in fear of the defendant." As the court stated, "I sat and I
observed her during the course of the proceedings, and my sense
was not that she's afraid of her safety[.]" Further, the court
found Debbie "knew exactly what she was doing" because she recorded
twelve other contacts with Steve, none of which "yielded any
incidents," and "was in a situation where she could control what
she had to say because she knew exactly what she was doing." With
respect to Steve, the court found there "was not a moment that
[the court] felt that [Steve] was in any way afraid of his wife,
and he needed a restraining order to protect his life, safety or
well-being[.]" The court found "that [n]either party met, by a
5 A-1177-15T2
preponderance of the evidence, that they needed a restraining
order to protect their life, safety and well-being."
Debbie alleges on appeal that the court abused its discretion
by relying on preconceived notions about the parties from the
matrimonial proceedings, misapplying the law and circumventing
court rules. These alleged errors included not admitting relevant
evidence, denying certain cross-examination, not ruling on a
specific charge or ruling on a charge that was not alleged, and
in the court's conduct of the trial proceedings. Debbie alleges
the court "led" defense counsel, abused its discretion in allowing
Steve to ask questions of the judge and relied on inaccurate notes
of the proceedings. We have considered these arguments in light
of the record and applicable law and conclude none have merit.
II.
Our review of a trial court's factual findings is limited.
Factual findings are binding on appeal when supported by adequate,
substantial, credible evidence. Rova Farms Resort, Inc. v. Inv'rs
Ins. Co., 65 N.J. 474, 484 (1974). Findings and conclusions of
the trial judge are entitled to enhanced deference in family court
matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We defer
to credibility assessments made by a trial court unless they are
manifestly unsupported by the record, because the trial court had
the critical ability to observe the parties' conduct and demeanor
6 A-1177-15T2
during the trial. See N.J. Div. of Youth & Family Servs. v. E.P.,
196 N.J. 88, 104 (2008); Weiss v. I. Zapinsky, Inc., 65 N.J. Super.
351, 357 (App. Div. 1961). We are mindful of the deference owed
to the determinations made by family judges who hear domestic
violence cases. See Cesare, supra, 154 N.J. at 411-12.
The entry of a domestic violence restraining order requires
the trial court to make certain findings. See Silver v. Silver,
387 N.J. Super. 112, 125-26 (App. Div. 2006). 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
court should make this determination "in light of the previous
history of violence between the parties." Ibid. (quoting Cesare,
supra, 154 N.J. at 402). Next, the court must determine whether
a restraining order is required to protect the party seeking
restraints from future acts or threats of violence. Id. at 126-
27. That means "there [must] be a finding that 'relief is
necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J.
458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)).
We discern no error by the court in its conclusion that the
predicate acts of harassment and terroristic threats were not
proven by a preponderance of the evidence. "The Supreme Court has
emphasized the care a trial court must exercise to distinguish
7 A-1177-15T2
between ordinary disputes and disagreements between family members
and those acts that cross the line into domestic violence." R.G.
v. R.G., 449 N.J. Super. 208, 225 (App. Div. 2017) (citing J.D.,
supra, 207 N.J. at 475-76). In Peranio v. Peranio, 280 N.J. Super.
47, 56-57 (App. Div. 1995), we found the Act was not intended to
address a "domestic contretemps" such as bickering or arguments
between married parties.
A person commits the offense of harassment if, "with purpose
to harass another, he . . . [s]ubjects another to striking,
kicking, shoving, or other offensive touching, or threatens to do
so." N.J.S.A. 2C:33-4(b). 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). 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.), certif. denied, 188 N.J. 577 (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, supra, 149 N.J. at 577)).
A person commits the offense of terroristic threats if "he
threatens to commit any crime of violence with the purpose to
8 A-1177-15T2
terrorize another." N.J.S.A. 2C:12-3(a). The offense is also
committed if a person "threatens to kill another with the purpose
to put him 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 court's rejection of both the harassment and terroristic
threats charges rested squarely on its credibility determination
that although the parties' argument escalated to a physical
encounter, there was no evidence of a purpose or intent by Steve
to engage in the confrontation in order to harass Debbie, or to
threaten violence or imminent fear of death. The court found the
parties behaved "miserably" toward each other, but that what
occurred was "domestic contretemps" and not domestic violence.
The court did find that assault occurred. A simple assault
is committed when a person "[a]ttempts to cause or purposely,
knowingly or recklessly causes bodily injury to another[.]"
N.J.S.A. 2C:12-1(a)(1). "'Bodily injury' means physical pain,
illness or any impairment of physical condition[.]" N.J.S.A.
2C:11-1(a). We agree with the trial court that the record
supported the claim of assault because the parties recklessly
caused minor injury to each other during the incident.
This finding did not end the analysis required by the Act.
"Commission of a predicate act is necessary, but alone
9 A-1177-15T2
insufficient, to trigger relief provided by the Act." R.G., supra,
449 N.J. Super. at 228 (citing Silver, supra, 387 N.J. Super. at
126-27 (stating once a plaintiff establishes a predicate act, the
court must determine "whether a restraining order is necessary,
upon an evaluation of the [factors] . . . to protect the victim
from an immediate danger or to prevent further abuse")); see also
Bittner v. Harleysville Ins. Co., 338 N.J. Super. 447, 454 (App.
Div. 2001). A court must also consider additional factors that
include "(1) [t]he previous history of domestic violence between
the [parties], including threats, harassment and physical abuse;
(2) [t]he existence of immediate danger to person or property;
. . . [and] (4) [t]he best interests of the victim and any child."
N.J.S.A. 2C:25-29(a)(1), (2) and (4).
We defer to the Family Part judge's credibility assessments
because she had the ability to observe the parties in the domestic
violence trial and their matrimonial proceedings. See Cesare,
supra, 154 N.J. at 412-13. Debbie expressed that she was fearful
of Steve, but she could not say what she feared. Her body language
did not show fear. Debbie "knew what she was doing" when she
secretly recorded defendant. Of the twelve prior contacts that
were recorded, there were no incidents indicating immediate
danger. Debbie agreed to dismiss a prior TRO because she lacked
proof. On this record, we agree with the trial court's finding
10 A-1177-15T2
based on its credibility assessment that Debbie did not establish
the need for a restraining order.
The other arguments raised on appeal present limited need for
discussion. Debbie claims that a singular statement in a case
management conference suggested that the court held preconceived
beliefs about the parties. We are confident based on our review
of the proceedings that the court decided the case based on the
evidence without any bias or pre-judgment by the trial court.
Debbie contends the court erred in making certain evidentiary
rulings. Our review "is limited to examining the decision for
abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)
(citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). "Considerable
latitude is afforded a trial court in determining whether to admit
evidence, and that determination will be reversed only if it
constitutes an abuse of discretion." State v. Feaster, 156 N.J.
1, 82 (1998) (citations omitted), cert. denied, 532 U.S. 932, 121
S. Ct. 1380, 149 L. Ed. 2d 306 (2001); see also State v. J.A.C.,
210 N.J. 281, 295 (2012) (citations omitted). An appellate court
should not substitute its own judgment for that of the trial court,
unless "the trial court's ruling 'was so wide of the mark that a
manifest denial of justice resulted.'" State v. Marrero, 148 N.J.
469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).
11 A-1177-15T2
Much of Debbie's criticism focused on her requests to expand
testimony about a party for Steve's father on May 23, 2015. We
are fully satisfied, however, that the court did not abuse its
discretion in its evidentiary rulings with respect to the May 23rd
party.
The court did not err in permitting Steve's counsel to present
evidence in support of the stalking claim after he seemed to rest
his case. His failure appeared to be inadvertent, the trial was
still in progress, Debbie's counsel had a full opportunity to
cross-examine Steve, and there was no prejudice given the court's
ruling that Steve failed to prove the claim. A trial is to be a
"search for truth." See McKenney v. Jersey City Med. Ctr., 167
N.J. 359, 370 (2001) (citation omitted); Kernan v. One Wash. Park
Urban Renewal Assocs., 154 N.J. 437, 467 (1998) (Pollock, J.,
concurring). The court's ruling was consistent with that
objective.
On appeal, Debbie relies on a magazine article from the "The
Police Chief" to support her contention that she was stalked, but
she did not allege that predicate act in her domestic violence
complaint nor was the article part of the evidence before the
trial court. The trial court properly did not make any ruling on
her allegation she was stalked by Steve, because it was never part
12 A-1177-15T2
of her complaint and her counsel acknowledged "[i]t's a - -
defense. It's not - - a claim."
Debbie's contention the judge did not rule on her terroristic
threats claim is erroneous because the judge stated, "I certainly
don't find that there were terroristic threats that occurred
. . . ." Even if this comment related to Steve's claim against
Debbie instead of her claim against him, she was not prejudiced
because of the court's finding that a restraining order was not
necessary to protect either of the parties.
Debbie's further arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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