J.F. VS. W.C. W.C. VS. J.F. (FV-14-0453-17 AND FV-14-0313-17, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-4382-16T4
A-4955-16T4
J.F.,
Plaintiff-Respondent,
v.
W.C.,
Defendant-Appellant.
W.C.,
Plaintiff-Respondent,
v.
J.F.,
Defendant-Appellant.
Submitted October 11, 2018 - Decided October 26, 2018
Before Judges Currier and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket Nos. FV-14-0453-17 and FV-14-0313-17.
The Law Firm of James R. Lambert, attorneys for
appellant in A-4382-16 and respondent in A-4955-16
(James R. Lambert, on the briefs).
Siobhan M. Fuller-McConnell, attorney for respondent
in A-4382-16 and appellant in A-4955-16.
PER CURIAM
J.F. (Jane) and W.C. (Warren)1 appeal from the final restraining orders
(FRO) entered against one another under the Prevention of Domestic Violence
Act (PDVA), N.J.S.A. 2C:25-17 to -35. After a review of the respective
contentions and the record, in light of the applicable principles of law, we
reverse the FRO entered against Warren and affirm the FRO entered against
Jane.
We derive the following facts from the parties' testimony at trial. The
parties share custody of a child from their prior dating relationship. Warren has
residences in Brooklyn, New York and Denville, New Jersey. Jane also resides
in Denville.
1
We use initials and pseudonyms for the parties' privacy.
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2
In October 2016, Warren came to Jane's home to drop off their child's
belongings, including some school pictures purchased by Jane. After inspecting
the pictures, Jane became upset and threw the pictures into Warren's vehicle.
She also refused to close the vehicle's door, preventing Warren from leaving.
Eventually, Jane closed the vehicle's door and Warren left.
Shortly thereafter, Jane drove to Warren's Denville home. When Warren
saw Jane, he closed his garage door, got into his vehicle, locked the doors, and
rolled up the windows. Jane exited her car, yelling at Warren to return the
pictures. Although Warren asked Jane numerous times to leave his property,
Jane refused to do so and began to videotape Warren.
Warren called the police who responded to his home. That same day,
Warren requested and received a temporary restraining order (TRO) against Jane
alleging harassment. In the TRO, Warren described a history of domestic
violence perpetrated by Jane against him and referenced several occurrences.
In the TRO, Warren alleged: (1) a week earlier, while Warren was
communicating on FaceTime with their child, Jane threatened Warren, saying,
“I can't wait to get you in front of a judge, because you're dead"; (2) Jane sent
Warren harassing text messages; (3) Jane stalked Warren and called his place of
employment asking whether he was working; (4) Jane tried to take Warren's
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3
phone from him; (5) Jane previously hit Warren; and (6) in January 2013, Jane
threw chicken at Warren, striking him in the face (the chicken incident).
During the trial, Warren elaborated on the incidents described in the TRO.
He stated that Jane called his employer, the New York Police Department
(NYPD),2 in September 2016, claiming he had threatened her. The Internal
Affairs Bureau (IAB) subjected Warren to an investigation after Jane's telephone
call and he felt he was at risk of losing his job.
Warren also described receiving more than twenty text messages a day
from Jane in August 2016, most of which did not relate to their child. Some of
the messages concerned Warren's personal life, while others used offensive
language insulting Warren and his mother. Warren testified that in the past, Jane
had struck him several times in separate incidents.
In response to these allegations, Jane testified during the trial of Warren's
TRO that she had only called Warren's employer after he threatened to keep their
child several days longer in retaliation for Jane listing her mother as the child's
school emergency contact. Jane denied ever striking Warren, stating instead that
he had thrown food at her during the chicken incident and pulled her to the
2
Warren is a New York City police officer.
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ground by her hair. She stated she had sustained injuries during the relationship
including a black eye, a concussion, and an injury to her knee.
As a result of Jane's call to the NYPD about the chicken incident, an IAB
investigation took place during which Jane, Warren, and the Denville police
Department were interviewed. The IAB concluded there had not been an assault.
Jane had given several versions of the incident and there were no proofs of a
head injury.
After Warren's TRO trial began, Jane applied for and received a TRO in
November 2016 against Warren. She alleged he had driven past her home one
early evening, which concerned her because he was supposed to be at work and
he had followed her home from work numerous times during the prior couple of
weeks.3 In the TRO, Jane also alleged "she has never reported any of [the] past
incidents of assault [by Warren] to the police." She described incidents where
Warren was physically abusive, punching her in the face, pulling her by her hair
onto the floor, smothering her with a pillow while yelling "die bitch," and
grabbing her by her face as she was using the restroom.
3
At trial, Jane only alleged Warren had driven by her home on several
occasions, not that he had followed her home from work.
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During the trial of Jane's TRO, she testified she was closing her blinds
when she noticed Warren's car drive by her home. Although "scared" and
"concerned," Jane neither contacted the police nor inquired into why Warren
was there. Warren's mother testified she arrived at Jane's home fifteen minutes
after this incident to drop off the parties' son, and Jane never mentioned Warren
being on her street nor did she seem "frazzled, upset, worried [or] in fear for her
life." Jane never indicated to Warren's mother any concern about Warren
driving by her home.
During the trial, Jane expounded on the prior domestic violence incidents
listed in her TRO. She was also permitted to testify to events not contained in
the TRO. Although Warren's counsel objected, the judge allowed the testimony
because Jane "was pro se when she was filling out the [complaint and] didn’t
understand the need for specifics." The court did adjourn the trial for three
weeks prior to cross-examination of Jane to allow Warren's counsel to prepare.
Warren's motion to dismiss the TRO because Jane had not proven the predicate
act of assault was denied.
On May 2, 2017, the trial court granted an FRO to both parties. The judge
found Warren's "testimony regarding the prior domestic violence and the
event[s] [listed in the TRO] [were] credible and . . . establish[ed] the predicate
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6
act [of harassment.]" The trial court determined Warren needed an FRO to
protect him from Jane because he "deserves" to be free from her text message
interrogations, her "foul language," and from her interference with his job.
In granting Jane an FRO, the trial court noted Jane had only alleged the
predicate act of assault in her TRO but "there was no real testimony or evidence
provided that would establish the predicate act of assault." The judge found,
however, that Jane had proven a predicate act of harassment, in light of her
testimony about prior acts of domestic violence, and Warren driving by her
home on several instances and following her home from work. Based on his
personal observations of Warren during trial, the judge found Warren was angry
and had control issues. The judge concluded an FRO was necessary because
these issues made Warren "a danger for further immediate and/or future abuse
[towards Jane].”
Our scope of review of Family Part orders is limited. Cesare v. Cesare,
154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's
findings of fact because of its special expertise in family matters. Id. at 413.
However, we owe no special deference to the trial judge's "interpretation of the
law and the legal consequences that flow from established facts." Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
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Both parties contend the trial court erred in granting the FRO applications.
We first address the FRO entered against Warren. He contends he was deprived
of his due process rights because the court found Jane satisfied the predicate act
of harassment, despite the complaint only alleging an act of assault. We agree.
A party in a judicial proceeding is entitled to a fair hearing, with the
protections of due process. J.D. v. M.D.F., 207 N.J. 458, 478 (2011); A.B. v.
Y.Z., 184 N.J. 599, 604-06 (2005); H.E.S. v. J.C.S., 175 N.J. 309, 321-23
(2003). "[T]he trial court must "ensure that [a] defendant [in a domestic violence
proceeding] is afforded an adequate opportunity to be apprised of those
allegations" upon which the complaint is based and to prepare for those
allegations. J.D., 207 N.J. at 480.
Due process forbids the trial court from "'convert[ing] a hearing on a
complaint alleging one act of domestic violence into a hearing on other acts of
domestic violence which are not even alleged in the complaint."' H.E.S., 175
N.J. at 322-23 (quoting J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div.
1998)). Although a complainant often provides "limited information about the
prior history between the parties, only to expand upon that history of prior
disputes when appearing in open court," the trial court "must recognize that if it
A-4382-16T4
8
allows that history to be expanded, it has permitted an amendment to the
complaint and must proceed accordingly." J.D., 207 N.J. at 479-80.
As stated, Jane's TRO only contained an allegation of the predicate act of
assault. Neither Jane nor the trial court amended the complaint to allege
harassment, even after Warren's counsel moved to dismiss the complaint,
arguing Jane had not proven an act of assault.
After Jane presented testimony on prior incidents of domestic violence
that were not included in her complaint, the trial court properly adjourned the
trial, allowing Warren time to prepare rebuttal to her testimony. However,
adjourning the case to permit preparation for cross-examination is not the
equivalent of amending a complaint to include a new substantive offense and
predicate act of domestic violence. The adjournment could not cure the ensuing
prejudice to Warren because he remained uninformed that the court was
considering the additional predicate act of harassment.
In the judge's oral decision at the close of the case, he agreed Jane had not
demonstrated sufficient evidence to support the allegations of assault. That
determination should have resulted in a dismissal of the TRO. However, the
judge concluded that Jane had provided sufficient evidence to prove the
predicate offense of harassment. The failure of Jane or the trial court to amend
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9
the complaint at any time during the proceedings, or after the presentation of the
evidence, resulted in a violation of Warren's due process rights, and requires a
reversal of the entry of the FRO.
Jane also raises a due process argument regarding the FRO entered against
her. She asserts her rights were violated after the court permitted Warren to
testify about phone calls Jane made to the IAB. We are unpersuaded by this
argument.
In his TRO, Warren stated that Jane called his employer to inquire whether
he was at work. He was asked at trial why he included that information when
describing past acts of domestic violence. Warren explained that after Jane
called his employer asking about his work schedule and informing the IAB that
he was threatening to keep their son, he was questioned by the IAB and felt his
job was at risk. Contrary to our analysis pertaining to Jane's TRO, here, Jane
had notice of Warren's allegations to prepare her defense.
We are satisfied the totality of the circumstances warranted a finding that
Jane's actions violated the harassment statute, N.J.S.A. 2C:33-4, and there was
sufficient evidence that an FRO was necessary to protect Warren from future
acts of harassment and domestic violence. See Silver v. Silver, 387 N.J. Super.
112, 127 (App. Div. 2006). The trial judge noted Jane had a purpose to harass
A-4382-16T4
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Warren by calling his employer, following him to his home, refusing to leave
his property while yelling at him, and videotaping him. Jane sent numerous
abusive text messages in which she discussed Warren's personal life, and
insulted him and his mother. The judge described Jane as lacking credibility
and not of a stable mind after listening to a CD recording he termed "as bizarre
a recording as the [c]ourt has ever listened to." The determination that Warren
needed an FRO to protect him from further harassment was satisfied by the
substantial evidence in the record.
Affirm as to the FRO entered against Jane; reverse as to the FRO entered
against Warren. We do not retain jurisdiction.
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11