A.K. v. T.A. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-0521-23
A.K.,
Plaintiff-Appellant,
v.
T.A.,
Defendant-Respondent.
__________________________
Submitted September 19, 2024 – Decided October 1, 2024
Before Judges Mawla and Vinci.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FV-16-2344-23.
Williams Law Group, LLC, attorneys for appellant
(Alvin Eugene Richards, III, of counsel and on the
brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff A.K. 1 appeals from the Law Division's September 26, 2023 order
dismissing her temporary restraining order (TRO) pursuant to the Prevention of
Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (PDVA), against defendant
T.A. The court granted defendant's Rule 4:37-2(b) motion for involuntary
dismissal following the presentation of plaintiff's testimony based on its
determination that her testimony was not credible. Because the court made
credibility findings on defendant's motion for involuntary dismissal instead of
applying the extremely indulgent standard set forth in Rule 4:37-2(b), we are
constrained to reverse and remand for a new trial.
The parties are married but separated and living apart. On April 26, 2023,
plaintiff filed a domestic violence complaint alleging assault, criminal coercion,
sexual assault, criminal trespass, harassment, and stalking, and was granted a
TRO.
In her complaint, plaintiff alleged that on April 19, 2023, defendant came
to her home when she was not there and waited in the parking lot of a
convenience store adjacent to her home until she arrived. Defendant knocked
on the door and plaintiff did not answer. Defendant attempted unsuccessfully
to contact plaintiff by calling her son and stating he was there to deliver a
1
We utilize initials to protect the confidentiality of the parties. R. 1:38-3(d)(9).
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birthday present to plaintiff. Defendant remained parked outside plaintiff's
home until approximately 1:00 a.m. Plaintiff alleged she "has told [defendant]
to not come to her home and to stop contacting her but [he] fails to adhere."
Plaintiff also alleged "[approximately] [one] month ago[,] [defendant]
came to [plaintiff's] home and sexually assaulted" her. She contended,
"[defendant] has been contacting [her] relatives in other countries stating [she]
is a bad woman who steals his money, a bad mother[,] and that her children are
bad as well" and as a result "many of her relatives do not speak to her."
Plaintiff alleged "[defendant] threatened [that] if she did[ not] continue
with the immigration paperwork and [do] as he said[,] he will tell everyone that
the reason [plaintiff's] daughter is not in her home is because [plaintiff's] father
sexually abused her, which is false[.]" Defendant further threatened that
"[defendant] and his family will get [plaintiff] and her children."
On September 26, 2023, the court conducted a trial on plaintiff's
application for a final restraining order (FRO). Before the trial began, plaintiff's
counsel requested an adjournment because she was retained the day before and
needed time to prepare for trial. The court denied the adjournment request
because "the complaint was filed . . . in mid-April" and plaintiff "ha[d] been [in
court] multiple times and . . . decided yesterday to retain counsel."
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Plaintiff testified, through an Arabic interpreter, that defendant "raped
[her]" on April 19, 2023, and also "the day before . . . ." According to plaintiff,
defendant was "forcing [her] to have sex with him" by "alleg[ ing] that he needs
to help [her], especially [because she] was suffering . . . because of [her]
daughter's story." Plaintiff testified that on April 19, she:
[W]as pregnant at that time. When [she] kicked
[defendant] out of the house he tried to do many
reconciliation[s]. He was not living with [them]. So he
came just to help [her]. He said that he wants to help
[her]. [Plaintiff and defendant] were in the living room.
The kids went up to their bedroom. Then [defendant]
push[ed her] into the couch and he tried to . . . have sex
with [her] and he did not leave [her] alone.
According to plaintiff, she told defendant she had text messages in which
he was "forcing [her] to have a sexual relationship . . . [and] he expressed his
remorse and was sorry." Plaintiff testified, "according to [their] culture, he[ is]
[her] husband so . . . he own[s] [her] and he can do anything to [her]."
Plaintiff contended, defendant "called [plaintiff's] dad" and said
"[plaintiff] . . . told [defendant] that [plaintiff's dad] sexually harassed her and
her sibling too when she was young. And if [plaintiff] does[ not] do what
[defendant] want[ed] to, [he would] . . . expose everything." Defendant
threatened to "expose [plaintiff]. And then [defendant] set up a Facebook
account and start[ed] adding [plaintiff's] family [and] . . . [her] cousins."
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Plaintiff also testified that "two days prior to" April 19, defendant came
into her house and she told defendant plaintiff and her children "were not feeling
comfortable in his presence." Defendant responded that plaintiff was "acting
and . . . making up stories." Plaintiff "told him to leave the house, but he did
not." Plaintiff testified she "f[ound] out later that [defendant] stole [her]
document[s] . . . and [her] [mini]van key," because she found copies of "all [her]
documents, [her] social security, [her] birth certificate, also [her] parents'
immigration work paper" in her minivan.
On cross examination, plaintiff was confronted regarding alleged
inconsistencies between her complaint and her trial testimony. Specifically, we
note the following colloquy between plaintiff and defendant's counsel:
Q: Are you aware that around April
19[] . . . 2023 you signed for a [TRO] that does[ not]
mention any assault happening on April 19[] of this
year?
A: I came to the judge and told him what is
happening. I was broken down. Broken down. I was
crying. So I came to the courthouse upon the attorney's
advice and he told [me] to go to the court. So I went to
the court, I saw the judge, and he gave me the TRO
based on what I said. I do [not] know what domestic
violence [is] and I do [not] know what is a TRO. . . .
....
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Q: When you requested that [TRO], did you
allege to the judge that [defendant] had assaulted you?
A: Yes. The judge ask[ed] me and I told him
yes.
Plaintiff's counsel attempted to refresh plaintiff's recollection by
reviewing the TRO with her, but the court denied the request. The court stated,
it "would normally do that" and "[i]t is something which typically is done," but
advised counsel the court was "not going to do it" and would "tell [counsel] why
later on."
Plaintiff's counsel also attempted to introduce the text messages
referenced in plaintiff's testimony, but the court denied the request because
counsel did not have the text messages prepared as a trial exhibit. Counsel
explained that she did not have exhibits prepared because she did not have
enough time to go through the "fairly large file" she received from plaintiff the
day before. According to counsel, "[t]hat was part of the reason why [she]
requested an adjournment."
After ruling plaintiff would not be permitted to introduce the text
messages, the court asked defense counsel if she "[had] an application." In
response, defense counsel moved for involuntary dismissal arguing plaintiff's
trial testimony was "beyond what[ is] mentioned in the [TRO]," amounted to
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"bare allegations unsupported by any documentary evidence," and her responses
to the questioning were "non-responsive for the most part."
The court granted defendant's motion in an oral opinion. It noted "as [the]
testimony [as to the predicate act] flowed forward, [the court] became more and
more concerned with the issue of credibility." The court found:
Plaintiff was very difficult to get a responsive answer
from. She talked in generalities and [the court] went
over and over with her, and counsel went over and over
with her instructing her that she needed to be specific
with respect to the alleged predicate act, what actually
happened on April . . . 19[] . . . .
....
Her direct response finally to what happened on
April . . . 19[], 2023 was he raped [her] on the 19th and
he did it on the day before as well. She then went into
an alleged phone conversation between the defendant
and her father. It became clear she had no personal
knowledge of that alleged act.
After reading the allegations set forth in plaintiff's complaint, the court
stated:
Could anything be further from the testimony of being
raped by the defendant on that day and being raped by
the defendant on the day before? That[ is] her alleged
predicate act in her [TRO]. Her testimony speaks for
itself here today. Today, her testimony is he raped [her]
on [April 19] and he raped [her] the day before. In her
[TRO], the only allegation of a sexual assault is
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approximately one month ago [when] defendant came
to plaintiff's home and sexually assaulted her.
The court determined plaintiff "clearly has shown no right to relief
because [the court found] her testimony [was] so far afield of her written
complaint that [the court found] no credibility at all in her testimony here today."
The court also concluded there was "no possibility to find a legitimate inference
that a complaint that the plaintiff filed within a couple of days of two alleged
rapes by defendant does[ not] say a word about them, but she testifie[d] to them
here in court."
On appeal, plaintiff argues: (1) the court made improper credibility
findings on a motion for involuntary dismissal based only on plaintiff's
testimony; (2) it was an abuse of discretion to deny plaintiff's adjournment
request; and (3) the dismissal order should be vacated because plaintiff was
denied the effective assistance of counsel.
We review a decision on a motion for involuntary dismissal de novo
applying the same standard that governs the trial courts. ADS Assocs. Grp., Inc.
v. Oritani Sav. Bank, 219 N.J. 496, 511 (2014). Rule 4:37-2(b) provides:
After having completed the presentation of the
evidence on all matters other than the matter of
damages (if that is an issue), the plaintiff shall so
announce to the court, and thereupon the defendant,
without waiving the right to offer evidence in the event
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the motion is not granted, may move for a dismissal of
the action . . . on the ground that upon the facts and
upon the law the plaintiff has shown no right to relief.
Whether the action is tried with or without a jury, such
motion shall be denied if the evidence, together with
the legitimate inferences therefrom, could sustain a
judgment in plaintiff's favor.
"If the court, 'accepting as true all the evidence which supports the
position of the party defending against the motion and according [them] the
benefit of all inferences which can reasonably and legitimately be deduced
therefrom,' finds that 'reasonable minds could differ,' then 'the motion must be
denied.'" ADS Assocs., 219 N.J. at 510-11 (quoting Verdicchio v. Ricca, 179
N.J. 1, 30 (2004)).
"[T]he judicial function here is quite a mechanical one. The trial court is
not concerned with the worth, nature or extent (beyond a scintilla) of the
evidence, but only with its existence, viewed most favorably to the party
opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). "Ordinarily,
the dismissal motion should be denied if the plaintiff's case rests upon the
credibility of a witness." Pressler & Verniero, Current N.J. Court Rules, cmt.
2.1 on R. 4:37-2 (citing Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22
N.J. 482, 494 (1956)). However,
when the trial court's dismissal is dependent upon its
acceptance of the credibility of a key witness, . . . the
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dismissal is sustainable only where the witness's
testimony "is clear and convincing, not incredible in the
light of general knowledge and common experience,
not extraordinary, not contradicted in any way by
witnesses or circumstances, and so plain and complete
that disbelief of the story could not reasonably arise in
the rational process of an ordinarily intelligent
mind . . . ."
[Cameco, Inc. v. Gedicke, 299 N.J. Super. 203, 213
(App. Div. 1997) (quoting Ferdinand, 22 N.J. at 494),
aff'd in part, mod. in part, 157 N.J. 504 (1999) (second
omission in original).]
Applying, as we must, the lenient standard applicable to a motion for
involuntary dismissal pursuant to Rule 4:37-2(b), we conclude defendant's
motion should properly have been denied. Plaintiff's complaint alleged the
predicate acts of assault, criminal coercion, sexual assault, criminal trespass,
harassment, and stalking based on conduct that occurred on April 19, 2023, and
"[approximately] [one] month" before when "defendant came to [plaintiff's]
home and sexually assaulted" her.
At trial, plaintiff testified that on April 19, 2023, defendant came to her
home uninvited, refused to leave when asked, and "tried to have sex with her."
She also testified defendant was forcing her to have a sexual relationship with
her through threatening communication with her and her family. She testified
her allegations were supported by text messages in which defendant "expressed
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his remorse" and apologized. Rather than accept plaintiff's allegations as true
as required when deciding a motion for involuntary dismissal, the court found
plaintiff not credible and rejected her testimony in its entirety.
To be sure, plaintiff's testimony was, at times, confusing and difficult to
follow. That may be attributable, at least in part, to the fact that she did not have
the opportunity to prepare for trial with counsel, as well as to counsel's inability
to refresh her recollection with the complaint or introduce the text messages
between plaintiff and defendant.
Accepting as true all the evidence proffered by plaintiff and according
plaintiff the benefit of all inferences which can reasonably and legitimately be
deduced therefrom, we conclude plaintiff set forth evidence sufficient to sustain
a judgment in her favor and defendant's motion should have been denied.
Accordingly, we vacate the September 26, 2023 order dismissing plaintiff's TRO
and remand to the Family Part to conduct a hearing on plaintiff's application for
a FRO within thirty days hereof.
Because the judge previously expressed opinions on the merits of
plaintiff's application and witness credibility, the Presiding Judge of the Family
Part shall assign this matter to a different judge for disposition. R. 1:12-1(d);
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J.G. v. J.H., 457 N.J. Super. 365, 376 (App. Div. 2019). We need not reach
plaintiff's remaining claims because they are moot.
Vacated and remanded. We do not retain jurisdiction.
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