M.A. VS. G.A., M.A. VS. H.A. (FV-12-1668-17 AND FV-12-1667-17, MIDDLESEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4413-16T2
A-4415-16T2
M.A.,
Plaintiff-Respondent,
v.
G.A.,
Defendant-Appellant.
__________________________
M.A.,
Plaintiff-Respondent,
v.
H.A.,
Defendant-Appellant.
__________________________
Argued June 26, 2018 – Decided July 31, 2018
Before Judges Simonelli and Koblitz.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket Nos. FV-12-1667-17 and FV-12-
1668-17.
Michael B. Roberts argued the cause for
appellants (Roberts & Teeter LLC, attorneys;
Michael B. Roberts, on the briefs).
M.A., respondent, argued the cause pro se
(Steven R. Enis, on the brief).
PER CURIAM
In this consolidated appeal, two defendant brothers, G.A. and
H.A., appeal from the May 12, 2017 final restraining orders (FROs)
entered pursuant to the Prevention of Domestic Violence Act (PDVA),
N.J.S.A. 2C:25-17 to -35. Their older brother, M.A., is the
plaintiff in both matters. Defendants argue that it was plain
error to hold a joint trial, it was plain error for the court to
question the witnesses so extensively, plaintiff produced
insufficient evidence of terroristic threats, and the court
rendered insufficient judicial findings in the case of G.A. We
disagree and affirm.
I.
The trial judge found the following facts. Plaintiff brought
his two younger brothers to the United States from Egypt. G.A.
lived with plaintiff from 1999 to 2010. H.A. lived with him from
2010 until 2014. At the time of the underlying domestic violence,
the two younger brothers were living together at plaintiff's
condominium. G.A. asked plaintiff for a loan of $150,000 for his
wedding, and became angry when plaintiff refused. After plaintiff
refused, G.A. and H.A. returned to Egypt for G.A.'s wedding.
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Plaintiff changed the locks on the condominium while his
brothers were overseas. Upon his return, G.A. sought relief
through a landlord-tenant order to show cause. After he was
ordered to do so, plaintiff gave G.A. a copy of the new keys, and
took photographs of the condition of the apartment, showing it to
be "in a very neat, clean and orderly state." On October 7, 2016,
G.A. lost his landlord-tenant case. On that date, both G.A. and
H.A. approached plaintiff in the court hallway and began to "berate
and threaten" plaintiff and his wife. Later that day, plaintiff
received threatening phone calls from the two brothers. Defendants
were removed from the apartment on November 19, although H.A. had
filed his own unsuccessful landlord-tenant order to show cause
seeking to remain three days earlier. The judge found plaintiff
and his wife to be credible and defendants not to be credible.
On November 19, before leaving the apartment, defendants
"trashed" the apartment, as evidenced by police photographs
admitted into evidence. Tiles and furniture were broken and
garbage strewn about. A wall was "smashed." The judge found by
a preponderance of the evidence that both defendants had committed
terroristic threats, N.J.S.A. 2C:12-3, and criminal mischief,
N.J.S.A. 2C:17-3, and that plaintiff needed an FRO for his
protection, given the ongoing litigation in Egypt and defendants'
continuing animosity towards plaintiff.
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II.
The standard of review that governs our consideration of this
appeal is well established. "The general rule is that findings
by the trial court are binding on appeal when supported by
adequate, substantial, credible evidence." Cesare v. Cesare, 154
N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs
Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the trial court's
factual findings "is especially appropriate 'when the evidence is
largely testimonial and involves questions of credibility.'" Id.
at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108,
117 (1997)). "[T]he trial court . . . has the opportunity to make
first-hand credibility judgments about the witnesses who appear
on the stand; it has a 'feel of the case' that can never be
realized by a review of the cold record." N.J. Div. of Youth &
Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div.
of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
"Therefore, an appellate court should not disturb the 'factual
findings and legal conclusions of the trial judge unless [it is]
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 (alteration in original) (quoting Rova Farms, 65 N.J.
at 484). Furthermore, "[b]ecause of the family courts' special
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jurisdiction and expertise in family matters, appellate courts
should accord deference to family court factfinding." Id. at 413.
The PDVA was enacted in furtherance of New Jersey's "strong
public policy against domestic violence." Id. at 400. Under the
PDVA, an FRO may only be granted "after a finding or an admission
is made that an act of domestic violence was committed." N.J.S.A.
2C:25-29(a); see also R. 5:7A(d).
Domestic violence occurs when a defendant commits one or more
of the enumerated acts upon a person covered by the act, such as,
terroristic threats, N.J.S.A. 2C:12-3, or criminal mischief,
N.J.S.A. 2C:17-3. A defendant commits terroristic threats if he
or she threatens to commit any crime of violence "with the purpose
to terrorize another" or "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. Criminal mischief occurs when a person "[p]urposely or
knowingly damages tangible property of another." N.J.S.A. 2C:17-
3(a)(1).
If a predicate offense is proven by a preponderance of the
evidence, N.J.S.A. 2C:25-29(a), the judge must then assess
"whether a restraining order is necessary, upon an evaluation of
the facts set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to
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protect the victim from an immediate danger or to prevent further
abuse." J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting
Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006)).
III.
Defendants claim that it was plain error for them to be tried
together and plain error for the judge to question the witnesses.
To justify relief, plain error must be "clearly capable of
producing an unjust result." R. 2:10-2; see also State v. Macon,
57 N.J. 325, 336 (1971).
Defendants point out that G.A. was not alleged to have
committed criminal mischief and by trying defendants together the
judge became confused as to what proofs were admitted against
which defendant. Neither defendant, who were represented by
separate counsel, objected to the joint trial. They submitted a
joint appellate brief after successfully seeking consolidation on
appeal.
Defendants also claim the judge committed plain error by
questioning the witnesses as extensively as he did. Defendants
concede that judicial questioning is permitted. N.J.R.E. 614.
Defense counsel did not object to the judge's questions. It is
incumbent upon counsel to object to judicial intervention when
warranted. An objection alerts the judge to dissatisfaction with
the way the trial is being conducted, and gives the judge the
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opportunity to change course. To wait until the party loses and
then raise the issue is not a convincing strategy, especially
where we are not concerned with prejudice to a jury in a bench
trial. See State v O'Brien, 200 N.J. 520, 534-35 (2009)
(cautioning judges against undue intervention in a criminal trial
for fear the jury will believe the judge favors one party).
Defendants also argue that the record does not support the
findings of domestic violence, because the threats expressed only
fleeting anger. Plaintiff testified that G.A. said he would kidnap
his diabetic daughter and give her an overdose of insulin. The
specific nature of the threat to kill a defenseless child was
frightening. The hallway threats were followed by threatening
phone calls, and informed by the extensive damage done to
plaintiff's condominium. The fact that the threats were issued
in a courthouse does not make them any less serious.
G.A. also argues that because he was alleged to have committed
harassment rather than criminal mischief, the judge issued
insufficient findings with regard to him. However, G.A. was the
brother who made the most frightening threat aimed at plaintiff's
daughter. G.A. was found to have committed terroristic threats,
which was alleged in the complaint. Thus any error in finding
G.A. had committed criminal mischief, although he was not charged
with that violation, was harmless. The judge had the opportunity
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to assess the individuals and determined that the danger to
plaintiff from his brothers was real. He found "they're both
angry and have been angry for a long time." We will not second-
guess the judge's first-hand evaluation of the situation.
Affirmed.
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