R.W. VS. R.V.L. (FV-07-0501-17, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-0188-17T1
R.W.,
Plaintiff-Respondent,
v.
R.V.L.,
Defendant-Appellant.
_______________________________
Submitted June 5, 2018 – Decided July 9, 2018
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FV-07-0501-17.
R.V.L., appellant pro se.
Law Offices of Peter W. Till, attorneys for
respondent (Peter W. Till, on the brief).
PER CURIAM
Defendant R.V.L. appeals from a November 29, 2016 final
restraining order (FRO), entered under the Prevention of Domestic
Violence Act (PDVA or Act), N.J.S.A. 2C:29-17 to -35, based on a
predicate act of harassment, N.J.S.A. 2C:33-4. We affirm.
I.
Defendant and R.W. were married in November 2011, and have
one child, a daughter born in September 2012.1 In 2014, R.W. filed
for divorce and a final judgment of divorce was entered on March
3, 2015. Both before and after their divorce, disputes arose
between the parties concerning parenting issues.
The incident that gave rise to the FRO occurred on August 11,
2016. R.W. claimed that she and defendant had a misunderstanding
about who had parenting time that day. When she realized it was
defendant's day, she put the daughter into her car seat in
defendant's vehicle. According to R.W., after she put the daughter
into her car seat, defendant trapped her between the car and the
car door and aggressively lunged at her, getting so close to her
face that "she could smell his breath." R.W. acknowledged that
she pushed defendant away in self-defense. She also acknowledged
that defendant sustained scratches to his face, but she could not
recall if she caused the scratches or if defendant had
inadvertently scratched himself during the incident.
Defendant contested R.W.'s version of events. He agreed that
the parties had a misunderstanding about parenting time that day.
He claimed, however, that R.W. became frustrated after having
1
We use initials to protect the parties' privacy interests. R.
1:38-3(d)(9).
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trouble getting the daughter into her car seat, and as she turned
around, she struck him in the face causing his nose and lip to
bleed. Defendant immediately called the police. When an officer
observed scratches on defendant's face, R.W. was placed under
arrest.
Defendant obtained a temporary restraining order (TRO)
against R.W. based on predicate acts of harassment and assault,
and a prior history of domestic violence. The next day, R.W.
obtained a TRO against defendant based on a predicate act of
harassment and a prior history of domestic violence, including
assault. Specifically, R.W.'s TRO alleged that defendant had
"physically assaulted her in West Orange." Thereafter, the parties
both sought FROs against each other and a consolidated FRO hearing
was scheduled.
Prior to the FRO hearing, R.W. amended her complaint to
specify prior instances of domestic violence defendant committed
against her. Those prior instances included a September 2014
incident where defendant lunged at her in the daughter's
pediatrician's office, and a February 2015 incident where
defendant entered the lobby of her apartment building despite
being prohibited from entering her building.
The court held a four-day consolidated FRO hearing between
September and November 2016. Defendant, who represented himself,
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testified and did not present any other witnesses.2 R.W., who was
represented by counsel, also testified and called four other
witnesses: (1) a neighbor who witnessed the August 11, 2016
incident; (2) a friend who witnessed the September 2014 incident
at the pediatrician's office; (3) a security guard from R.W.'s
apartment building; and (4) the police officer who arrested R.W.
on August 11, 2016.
After considering the evidence, the trial court found R.W.'s
testimony credible and defendant's testimony incredible. The
court then found that R.W. had established that defendant committed
the predicate act of harassment when he lunged at R.W. on August
11, 2016. The court also found that defendant had committed prior
acts of domestic violence against R.W. by (1) grabbing her
"engorged breast" in January 2013; (2) pinning her against a wall
in May 2014; (3) grabbing a baby monitor out of her hands and
breaking it in July 2014; and (4) lunging at her at a
pediatrician's office in September 2014. The May and July 2014
incidents were raised by defendant in his complaint against R.W.
The court, however, rejected defendant's allegations, accepted
2
Defendant is a licensed attorney in the State of New Jersey.
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R.W.'s version of events, and found that defendant committed acts
of domestic violence on those dates.3
Based on those findings, the trial court concluded that an
FRO was necessary to protect R.W. from further abuse, and on
November 29, 2016, entered an FRO against defendant. The court
also found that defendant failed to prove R.W. had committed any
predicate act of domestic violence, and denied his application for
an FRO. Defendant appeals only from the November 29, 2016 FRO
entered against him.
II.
On appeal, defendant makes nine arguments, which relate to
four alleged errors by the trial court: (1) it failed to recognize
certain due process violations; (2) it misapplied the law on
harassment; (3) it made unsupported factual findings; and (4) it
made erroneous evidentiary rulings. We are not persuaded by any
of defendant's arguments. We first address the law governing
entry of the FRO. We then briefly address each of defendant's
arguments.
3
The trial court referenced a "February 2016" incident in making
its findings, but specified that it was referring to the incident
"within the doctor's office." The record reflects that incident
occurred in September 2014.
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A. Entry of the FRO
Our scope of review is limited when considering an FRO issued
by the Family Part following a bench trial. A trial court's
findings are binding on appeal "when supported by adequate,
substantial, and credible evidence." Gnall v. Gnall, 222 N.J.
414, 428 (2015) (citing Cesare v. Cesare, 154 N.J. 394, 411-12
(1998)). This deference is particularly appropriate where the
evidence at trial is largely testimonial and hinges upon a court's
credibility findings. Ibid.Domestic violence occurs when a party commits one or more of
the enumerated offenses in the PDVA upon a person covered by the
Act. See N.J.S.A. 2C:25-19(a). In determining whether to grant
an FRO, a trial judge must engage in a two-step analysis. Silver
v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). "First,
the judge must determine whether the plaintiff has proven, by a
preponderance of the credible evidence, that one or more of the
predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred."
Id. at 125; see also N.J.S.A. 2C:25-29(a) (providing that an FRO
may be granted only "after a finding or an admission is made that
an act of domestic violence was committed").
Second, the court must determine that an FRO is necessary to
provide protection for the victim. Silver, 387 N.J. Super. at
126-27; see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting
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N.J.S.A. 2C:25-29(b) in explaining that an FRO should not issue
without a finding that "relief [is] necessary to prevent further
abuse"). As part of that second step, the judge must assess
"whether a restraining order is necessary, upon an evaluation of
the fact[or]s set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6),
to protect the victim from an immediate danger or to prevent
further abuse." J.D., 207 N.J. at 475-76 (quoting Silver, 387
N.J. Super. at 127).
Applying these standards, we discern no basis to disturb the
trial court's decision to enter an FRO against defendant. There
was substantial credible evidence in the record to support the
trial court's findings that defendant committed the predicate act
of harassment on August 11, 2016. There was also substantial
credible evidence regarding the history of domestic violence by
defendant against R.W. Based on those findings, the trial court
correctly found that an FRO was necessary to protect R.W. from
further abuse.
B. Due Process Violations
Defendant contends that his due process rights were violated
when the trial court considered certain emails he sent to R.W. on
the same day he filed a TRO against her. He also argues that the
trial court improperly considered a prior instance of domestic
violence from January 2013. Specifically, defendant asserts that
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he did not have notice of those matters because they were not
expressly listed in R.W.'s initial TRO or in her amended complaint.
Trial courts are not required to limit plaintiffs "to the
precise prior history revealed in a complaint, because the
testimony might reveal that there are additional prior events that
are significant to the court's evaluation, particularly if the
events are ambiguous." J.D., 207 N.J. at 479. Indeed, courts
often attempt to develop a fuller picture of prior instances of
domestic violence than those that are provided by the plaintiff
in his or her complaint. Ibid. In those situations, however,
trial courts should ensure that a defendant is afforded an adequate
opportunity to be apprised of those allegations and to prepare a
defense. Id. at 480.
Initially, we note that defendant did not preserve his
argument concerning the emails for appeal because he failed to
object to their admission at the FRO hearing. Moreover, the trial
court did not rely on the emails in finding that defendant
committed the predicate act of harassment. Instead, it relied on
the emails in finding defendant's testimony incredible, and in
denying defendant's application for an FRO against R.W.
We also reject defendant's second due process argument.
R.W.'s amended complaint did not expressly identify January 2013
as a prior instance of domestic violence. R.W.'s initial TRO,
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however, expressly alleged that defendant had physically assaulted
her. Accordingly, it is not clear from this record that defendant
did not have notice of the January 2013 incident. Moreover,
defendant did not request an adjournment or in any way suggest
that he needed more time to investigate, prepare a defense, or
present witnesses regarding the January 2013 incident. Although
he objected to R.W.'s testimony regarding that incident, he
ultimately chose to proceed and cross-examine R.W.
Finally, even without the January 2013 incident, there was
substantial credible evidence in the record regarding prior
instances of domestic violence by defendant against R.W. This was
not a case where "much of the testimony" about prior domestic
violence involved instances beyond the four corners of the
complaint. L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999).
To the contrary, the record reflects three other prior instances
of domestic violence, independent of the January 2013 incident.
Specifically, the trial court found that defendant had (1)
pinned R.W. against a wall in May 2014; (2) grabbed a baby monitor
out of R.W.'s hands and broke it in July 2014; and (3) intimidated
and lunged at R.W. at a pediatrician's office in September 2014.
Defendant was aware of each of the other prior instances because
R.W. identified the September 2014 event in her amended complaint
and defendant raised the May 2014 and July 2014 events in his
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complaint against R.W. Those prior instances of domestic violence
were supported by substantial credible evidence and, accordingly,
we find no due process violation.
C. Legal Conclusions
Defendant next contends that the trial court erred in
concluding that he intended to harass R.W. on two occasions. A
person commits harassment if, with purpose to harass another, he:
a. [m]akes, or causes to be made, a
communication . . . at extremely inconvenient
hours, or in offensively coarse language, or
any other manner likely to cause annoyance or
alarm; b. [s]ubjects another to striking,
kicking, shoving, or other offensive touching,
or threatens to do so; or c. [e]ngages in any
other course of alarming conduct or of
repeatedly committed acts with the purpose to
alarm or seriously annoy such other person.
[N.J.S.A. 2C:33-4.]
A finding of "purpose" under the harassment statute may be inferred
from the evidence presented. State v. Hoffman, 149 N.J. 564, 577
(1997). Here, substantial credible evidence in the record
supported the court's findings that defendant intended to harass
R.W. by intimidating and lunging at her during the incident on
August 11, 2016, and at a pediatrician's office in September 2014.
D. Factual Findings
Defendant also contends that the trial court erred in making
two factual findings. First, defendant argues that the emails he
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sent to R.W. on the day he filed a TRO against her did not
constitute harassment. As noted, the trial court did not rely on
those emails in finding that defendant committed the predicate act
of harassment and, thus, we reject that argument. Second,
defendant challenges the trial court's finding that he violated
prior orders requiring curbside exchanges of the daughter. There
was substantial credible evidence in the record regarding the
prior court orders, consent agreements, and other communications
between defendant and R.W., all of which required defendant to
exchange the daughter either at the curbside, or in the vestibule
of R.W.'s building. Thus, we discern no basis to disturb that
finding.
E. Evidentiary Rulings
Finally, defendant contends that the trial court erred by
excluding two documents from evidence: (1) a letter from the
pediatrician's office; and (2) a letter from the Division of Child
Protection and Permanency. Defendant did not lay a proper
foundation for either of those documents to be admitted into
evidence. The trial court provided well-reasoned explanations for
its decisions to exclude those documents, and we find no abuse of
discretion in either of those evidentiary rulings. See L.T. v.
F.M., 438 N.J. Super. 76, 89 (App. Div. 2014).
Affirmed.
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