R.R.C. VS. P.F. (FV-03-1794-18, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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.
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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
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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.
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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?"
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 "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
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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.
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