T.F. VS. F.S. (FV-03-0797-16, BURLINGTON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-2137-15T4
T.F.,
Plaintiff-Respondent,
v.
F.S.,
Defendant-Appellant.
_________________________________
Argued December 20, 2016 – Decided July 7, 2017
Before Judges Leone and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FV-03-0797-16.
Daniel E. Rybeck argued the cause for
appellant (Weir & Partners, LLP, attorneys;
Mr. Rybeck, on the briefs).
Brenda R. Maneri argued the cause for
respondent (Sitzler and Sitzler, attorneys;
Ms. Maneri, on the brief).
PER CURIAM
Defendant F.S. appeals from a December 14, 2014 final
restraining order (FRO). We vacate the FRO and remand for a new
hearing.
I.
Plaintiff T.F. and defendant began dating in 2012, and started
living together in 2013. They broke up on November 9, 2015, when
defendant moved out.
On November 14, 2015, plaintiff filed her original complaint
under the Prevention of Domestic Violence Act of 1991 (Act),
N.J.S.A. 2C:25-17 to -35. She alleged that after they broke up,
defendant texted her accusing her of taking his car keys. When
she texted him telling him not to contact her again, he sent her
three text messages and an e-mail, which she charged constituted
the predicate act of harassment. She said there was no history
of domestic violence. A municipal court judge issued a temporary
restraining order (TRO).
On November 18, 2015, plaintiff filed her first amended
complaint seeking an FRO based on the originally-charged predicate
act of harassment. However, she also alleged a prior history of
domestic violence in 2013, 2014, and 2015. The prior history
included an allegation defendant performed unwanted oral sex on
her and then vaginally raped her on October 31, 2015. She alleged
harassment and sexual assault charges were pending. Another
2 A-2137-15T4
municipal court judge noted the complaint was being "amended for
past history."
On December 1, 2015, plaintiff filed her second amended
complaint adding sexual assault as a predicate act. She stated:
"Initial predicate included a sexual assault incident but the box
for sexual assault crime was not checked off." She also stated
she had to amend the TRO to include sexual assault because the
police "wanted to leave it off the initial TRO in hopes of doing
a consensual intercept with [defendant]." The trial court allowed
plaintiff to amend "to add to predicate and history."1
The trial court held the FRO hearing on December 10, 2015.
Plaintiff testified as follows about the alleged October 31 sexual
assault. She and defendant were having an in-home date night when
she took a call from a male graduate school classmate. Defendant
became angry. Plaintiff apologized and went to bed. Defendant
grabbed her arm, flipped her onto her back, and forcefully jammed
his tongue down her throat. She told him to stop, but he kept
butting his face into her face and tried unsuccessfully to
penetrate her vaginally. He performed oral sex on her, and she
1
Plaintiff also listed as another predicate act of harassment
that defendant gave her "intimidating looks of disgust" in the
courthouse on November 19, 2015 and tried to leave with her.
3 A-2137-15T4
told him to stop. He asked her to perform oral sex on him, but
she refused. He then penetrated her vaginally.
Plaintiff testified that the next day she told defendant she
was sore and torn from the vaginal penetration. She also testified
she sought medical attention on November 6, 2015.
Plaintiff testified she did not report the sexual assault to
the police initially because she "was petrified" defendant would
retaliate and she needed to get her family involved. She testified
she first reported the sexual assault to the police on November
10, 2015.2
On redirect, plaintiff testified she told the police about
the sexual assault on November 9 and 10, 2015, but an officer did
not want her to include the sexual assault in the original
complaint because the police were considering recording with
plaintiff's consent a conversation between plaintiff and
defendant's knowledge a consensual intercept and "did not want to
let [defendant] know that there was an active investigation" into
the sexual assault. She testified she amended the complaint to
mention the sexual assault, but a court officer or domestic
2
Plaintiff did not testify on direct about the originally-charged
predicate act of harassment by text and e-mail. She briefly
testified defendant gave her a "death glare" in the courthouse on
November 19. He disputed her version.
4 A-2137-15T4
violence liaison did not check off the sexual assault box, so
plaintiff had to amend the complaint again.
Defendant testified he and plaintiff had consensual
intercourse on October 31 and he did not do anything forcibly or
against her will. He testified that, on the day they broke up,
she said she was going to call the police and say he assaulted
her.
At the conclusion of the December 10 FRO hearing, after
closing arguments, the trial court deferred issuing its opinion
until December 14. The court stated it was concerned with "the
delay in – alleging that the sexual assault took place" and "the
fact that this sexual assault case was not presented to the Court
by way of a temporary restraining order until much later."
Plaintiff's counsel offered to call the detective who took
plaintiff's statement; the court said it would "love to hear from"
him. Defendant's counsel asked to be allowed to confront the
detective and to subpoena rebuttal witnesses.
On December 14, plaintiff called Detective Damiano DePinto.
DePinto provided the parties with a police report concerning his
and his department's investigation of plaintiff's allegations. He
then testified as follows. He did not become involved with the
investigation until November 14, when he took plaintiff's
statement. He was not involved on November 10 when plaintiff made
5 A-2137-15T4
her initial report. However, based on his "reading the report,"
he testified she complained of harassment and sexual assault but
did not apply for a TRO. On November 14, she applied for a TRO,
and "the Judge was advised of the entirety of what she was
alleging, but for investigative reasons, we had left off the
allegations of sexual assault and just left the harassment on
there." The judge found no probable cause for the criminal
complaints but granted the TRO. A day or two later, the
prosecutor's office indicated the plan to record a conversation
between plaintiff and defendant "couldn't be done with the
restraining order in effect."
On cross-examination, defendant's counsel marked the police
report DePinto had just provided. The trial court sustained
objections to defense counsel's attempt to use the report to cross-
examine Detective DePinto and refused to allow him to call DePinto
or plaintiff in rebuttal to cross-examine them with the report.
The trial court credited plaintiff's testimony that defendant
had sexually assaulted her. The court also found plaintiff's
delay in reporting the sexual assault "was driven by the
prosecutor's office, as well as the police department." The court
issued an FRO.
6 A-2137-15T4
II.
Defendant argues the trial court erred in refusing to allow
testimony regarding the police report and its information about
plaintiff's reasons for the delay in filing a complaint alleging
sexual assault. We must hew to our standard of review.
"'[C]onsiderable 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.
Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). "Under
that standard, 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."'" Ibid. (citations omitted).
We find the trial court abused its discretion. Although the
police report corroborated some aspects of plaintiff's testimony,
it was inconsistent with her claim that she did not initially seek
a TRO for sexual assault because the police told her they hoped
to conduct a consensual intercept with defendant.
The November 10 portion of the report, prepared by Officer
Glen Horay, stated as follows. Plaintiff told Horay that defendant
forced her to have sexual intercourse on October 31, but that she
did not report the incident prior to November 10 "because she
wanted to speak to her counselor first." Horay told plaintiff she
7 A-2137-15T4
could apply for a TRO immediately, but she "chose not to pursue
any charges against [defendant] at this time," and she signed a
form "declining an immediate restraining order." She told Horay
"she was going to wait and see if [defendant] has any further
contact with her and that if he does, she would respond back to
apply for a restraining order." She asked Horay not to contact
defendant about her allegations "because she is hoping that he
just leaves her alone." Horay concluded no police action was
required.
A November 24 portion of the report prepared by Horay stated
that on November 14 plaintiff said she wanted to apply for a TRO
and pursue charges against defendant. The report did not state
that the police told plaintiff not to include the sexual assault
allegations in her initial complaint because the police were trying
to do a consensual intercept of defendant.
When defendant's counsel tried to cross-examine DePinto about
plaintiff's "wait and see" statement, the trial court sustained
the objection because the statement was referenced in Horay's
report, not DePinto's report, and DePinto had "no knowledge of
that." However, plaintiff's counsel already elicited DePinto's
testimony about plaintiff's initial statements to Horay on
November 10.
8 A-2137-15T4
The trial court also would not allow defendant's counsel to
cross-examine DePinto about the portion of the report DePinto
prepared on November 20. DePinto's portion of the report related
plaintiff's November 14 statements about the sexual assault,
including a statement that she sought treatment from a medical
provider on November 6 but did not tell the provider she was
sexually assaulted until the yeast and bacterial results
"eventually" came back. When defendant's counsel tried to ask
DePinto if plaintiff made that statement, the court sustained an
objection, ruling DePinto was called just to determine "whether
there was a substantial delay or a delay as a result of police
investigation."
Defendant's counsel asked to call DePinto on rebuttal, but
the trial court ruled: "There's no rebuttal. It's just a matter
of making a determination as to whether or not . . . this complaint
of sexual assault was delayed by the police or by the Judge or by
. . . the plaintiff." When defendant's counsel pointed out he had
just received the information in the report, the court ruled it
would not "allow any further examination of the officer. He's
here for one purpose and one purpose only."
The trial court also precluded cross-examination of plaintiff
about the information in the report which was inconsistent with
her testimony. Defendant's counsel argued he had no opportunity
9 A-2137-15T4
to cross-examine plaintiff with the information in the newly-
provided report. He asked to call plaintiff in rebuttal. The
court denied that request, stating: "[W]hen you were last here, I
heard all the testimony, and there was my request with regard to
having . . . the detective here to make a determination as to the
delay"; "that's the extent of it"; and "[i]t's over and done with,
counsel." However, after hearing "all the testimony" presented
by both parties on December 10, the court allowed plaintiff to
reopen the record on December 14 to present additional testimony
from DePinto which the court thought had been lacking, but
prevented defendant from presenting any additional testimony in
rebuttal.
A trial court has discretion on whether to reopen the record,
but "consideration should be given to the prejudice to the opposing
party." State v. Cullen, 428 N.J. Super. 107, 111-12 (App. Div.
2012) (citing State v. Menke, 25 N.J. 66, 71 (1957)). A defendant
should not be "precluded from offering such rebuttal proofs as he
might choose" that are responsive and admissible. See State v.
Menke, 44 N.J. Super. 1, 7 (App. Div.), aff’d, 25 N.J. 66 (1957);
see State v. Sturdivant, 31 N.J. 165, 178 (1959) (upholding the
admission of additional evidence where "the trial court offered
the defense an opportunity to produce surrebuttal evidence"),
cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960).
10 A-2137-15T4
Similarly, a trial court may "exercise reasonable control
over the mode and order of interrogating witnesses." N.J.R.E.
611(a). "We recognize that 'the trial court has a wide range of
discretion regarding the admissibility of proffered rebuttal
evidence.'" Casino Reinvestment Dev. Auth. v. Lustgarten, 332
N.J. Super. 472, 497 (App. Div.) (citation omitted), certif.
denied, 165 N.J. 607 (200). However, defendant's proposed
"rebuttal" testimony from DePinto and plaintiff "both challenged
and contradicted testimony produced for the [plaintiff]" and "was
neither cumulative nor repetitive of testimony offered in
[defendant]'s case." See id. at 497, 498 (finding the exclusion
of "rebuttal testimony was an abuse of discretion").
Further, "[r]ebuttal evidence is permissible when necessary
because of new subjects introduced on direct or cross-examination
of [the] witnesses." State v. Cook, 330 N.J. Super. 395, 418
(App. Div.), certif. denied, 165 N.J. 486 (2000). Here, not only
did DePinto's testimony introduce new subjects, but he produced a
report previously unknown to defendant which was inconsistent with
plaintiff's testimony.
Plaintiff stresses the trial court's statements that it
wanted to hear from DePinto about "the delay in filing" and about
"when the sexual assault was recorded in relation to the TRO being
filed." Although ordinarily "[c]ross-examination should be
11 A-2137-15T4
limited to the subject matter of the direct examination and matters
affecting the credibility of the witness," N.J.R.E. 611(b),
"nevertheless, reasonable latitude should be permitted to assure
[the cross-examination's] inclusion of relevant material."
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, 1991
Supreme Court Committee Comment on N.J.R.E. 611 (2016). The cross-
examination sought by defendant was relevant and went to what the
court had identified as a key issue – plaintiff's delay in
reporting the alleged sexual assault. Indeed, defendant's
question about plaintiff's decision not to seek a TRO on November
10 was within the scope of DePinto's testimony on direct.
The trial court disallowed that question because it asked
DePinto about the portion of the report prepared by Officer Horay,
but plaintiff had already opened the door by asking DePinto about
plaintiff's statement on November 10 even though he lacked personal
knowledge and was basing his testimony on Horay's portion of the
report. "The 'opening the door' doctrine is essentially a rule
of expanded relevancy and authorizes admitting evidence which
otherwise would have been irrelevant or inadmissible in order to
respond to (1) admissible evidence that generates an issue, or (2)
inadmissible evidence admitted by the court over objection." State
v. James, 144 N.J. 538, 554 (1996). By questioning DePinto about
plaintiff's statement to Horay about which DePinto had no personal
12 A-2137-15T4
knowledge, plaintiff "open[ed] the door to introduction of other
parts of that statement." State v. Farthing, 331 N.J. Super. 58
(App. Div.), certif. denied, 165 N.J. 530 (2000). Allowing
plaintiff to elicit that plaintiff told the police about the sexual
assault on November 10, while precluding defendant from showing
why she chose not to seek a TRO on November 10, "runs counter to
the sense of fairness our cases and rules strive to achieve."
State v. B.M., 397 N.J. Super. 367, 380-81 (App. Div. 2008).
"[O]rdinary due process protections apply in the domestic
violence context, notwithstanding the shortened time frames for
conducting a final hearing[.]" J.D. v. M.D.F., 207 N.J. 458, 478
(2011). Improperly "denying defendant the opportunity to cross-
examine witnesses or to present witnesses violates due process."
Id. at 481 (citing Peterson v. Peterson, 374 N.J. Super. 116, 124-
26 (App. Div. 2005)). Thus, in J.D., our Supreme Court held the
trial court violated due process by not allowing the defendant to
question the plaintiff's boyfriend because the court "decided that
plaintiff's proofs sufficed." Ibid. In Peterson, supra, we held
the trial court erred in not allowing the defendant to cross-
examine the plaintiff and her witness or call witnesses. 374 N.J.
Super. at 124-26. Citing J.D. and Peterson, we recently ruled in
another domestic violence case
13 A-2137-15T4
that the trial judge erred when he barred
plaintiff from calling defendant to the
witness stand. Neither the rules of procedure
nor the rules of evidence prohibit a civil
litigant from calling an adverse party to
testify. And, even though we recognize that
trials in domestic violence matters are
usually brief, loosely-conducted affairs, our
courts must be vigilant to ensure that
parties' procedural due process rights are
maintained.
[N.B. v. S.K., 435 N.J. Super. 298, 308 n.12
(App. Div. 2014).]
Here, the trial court similarly abused its discretion. "The
trial court undoubtedly exercised its judgment with the best of
intentions; however, we are unable to determine to what extent
plaintiff's domestic violence claims might have been successfully
challenged if defendant had not been deprived of his constitutional
right to due process and a fair trial." Peterson, supra, 374 N.J.
Super. at 125. Thus, we must vacate the FRO and remand.
III.
Defendant argues plaintiff failed to offer sufficient
evidence to show a predicate act of domestic violence. To the
contrary, she presented sufficient evidence for the trial court
to find a "sexual assault," which is a predicate act under the
Act. N.J.S.A. 2C:25-19(a)(7); see N.J.S.A. 2C:14-2.3
3
It is unclear whether the trial court found defendant committed
a predicate act of harassment. The court made no mention of the
14 A-2137-15T4
Defendant also contends the trial court erred in determining
that "a restraining order is necessary, upon an evaluation of the
fact[or]s set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect
the victim from an immediate danger or to prevent further abuse."
J.D., supra, 207 N.J. at 475-76 (quoting Silver v. Silver, 387
N.J. Super. 112, 126-27 (App. Div. 2006)). In making that
determination, a court must consider "[t]he previous history of
domestic violence between the plaintiff and defendant, including
threats, harassment and physical abuse." N.J.S.A. 2C:25-29(a)(1);
accord Silver, supra, 387 N.J. Super. at 126.
Plaintiff testified defendant had a previous history of
domestic violence. In particular, she alleged that on July 19,
2015, he jumped on top of her, angrily butted his head into her
head, and loudly demanded who she was "f**king," making her "very
fearful." That testimony, coupled with her testimony that
defendant sexually assaulted her on October 31, 2015, was
sufficient for the trial court to find an FRO was needed. Indeed,
originally-charged harassment by text and e-mail. The court
mentioned that plaintiff believed there were "some intimidating
observations" on November 19, but made no other findings concerning
that charge. The court later stated "that harassment would be
incorporated in the whole picture of events here, but that the
sexual assault . . . is prevalent in this matter." Neither party
addresses the validity of any harassment finding, nor do we, as
we are remanding for a new hearing in any event.
15 A-2137-15T4
"one sufficiently egregious action [may] constitute domestic
violence under the Act, even with no history of abuse between the
parties." Cesare v. Cesare, 154 N.J. 394, 402 (1998).4
Thus, the testimony offered by plaintiff, if credited,
provided sufficient evidence to find a sexual assault and a need
for an FRO. Nonetheless, we must vacate the FRO and remand due
to the trial court's preclusion of the cross-examination and
calling of witnesses to test the credibility of that testimony.
In light of that history, "we direct, in an abundance of caution,
that a different judge be assigned to conduct the new [FRO] hearing
so that credibility assessments may be made anew." State v. Hreha,
217 N.J. 368, 386 (2014).5
4
Plaintiff also testified as follows. In December 2013, defendant
complimented her "ass" and smacked it hard, leaving a handprint.
He angrily flipped two folding tables during an argument in January
or February 2014. In May 2014, he moved out, then kept trying to
find and talk to her begging for another chance, was told to leave
by her father, and threatened her father. During an argument on
April 4, 2015, defendant bit his knuckle and revved his car engine
when she was in front of the car, scaring her. While assembling
furniture on October 25, 2015, he angrily told her: "You have a
hard f**king head. You do not need a drill." Defendant disputed
plaintiff's version of the prior history. We need not comment or
rely on these prior acts alleged by plaintiff.
5
As we are remanding, we need not address defendant's assertions
that the trial court relied on a recording it had ruled
inadmissible, misapprehended that there was a "medical assessment"
of the sexual assault, or misstated that defendant "often" tried
to reconcile with plaintiff.
16 A-2137-15T4
Vacated and remanded for a new hearing on whether to issue
an FRO. The TRO remains in place. We do not retain jurisdiction.
17 A-2137-15T4