K.C. v. R.Q. (FV-14-0700-20, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-4199-19
K.C.,
Plaintiff-Respondent,
v.
R.Q.,
Defendant-Appellant.
_______________________
Submitted November 4, 2021 – Decided March 9, 2022
Before Judges Haas and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FV-14-0700-20.
Maitlin Maitlin Goodgold Brass & Bennett, attorneys
for appellant (Scott A. Gorman, of counsel and on the
briefs).
Desena & Petro, attorneys for respondent (Benjamin P.
De Sena, on the brief).
PER CURIAM
Plaintiff commenced this action, pursuant to the Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35, claiming defendant made a threatening
call from a third party's phone after she had blocked him. The call was on
speaker because plaintiff, a hairdresser, was coloring a client's hair and asked
her to pick up the call. The client overheard the conversation and testified at
trial about defendant's threatening words and tone during the call. She stated
she was frightened, and plaintiff was visibly shaken by the call.
On June 26, 2020, after a trial, Judge James M. DeMarzo rendered an oral
opinion and judgment granting a final restraining order (FRO) against
defendant, finding the evidence satisfied both prongs of Silver v. Silver, 387
N.J. Super. 112 (App. Div. 2006). He found the subject call constituted
harassment because it was made "with the purpose to upset and seriously annoy
the plaintiff into complying with his demands." N.J.S.A. 2C:33-4(c). The judge
concluded an FRO was warranted based on a well-documented history of
domestic violence between the parties and the insufficiency of the current civil
restrains to deter defendant from similar acts of harassment.
On appeal, defendant raises three points for our consideration:
POINT I
THE [TRIAL] COURT ERRED WHEN IT FOUND
THAT DEFENDANT COMMITTED AN ACT OF
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HARASSMENT WHEN THERE WAS
INSUFFICIENT EVIDENCE TO ESTABLISH THAT
DEFENDANT MADE REPEATED
COMMUNICATIONS THAT WOULD
REASO[N]ABLY CAUSE PLAINTIFF TO FEAR
FOR HER SAFETY OR SECURITY.
POINT II
THE [TRIAL] COURT ERRED WHEN IT FOUND
THAT THE PLAINTIFF NEEDS THE PROTECTION
OF A DOMESTIC VIOLENCE RESTRAINING
ORDER TO PREVENT HER FROM BEING
SUBJECTED TO FUTURE ACTS OF DOMESTIC
VIOLENCE WHEN THE ALLEGED PREDICATE
ACT OF DOMESTIC VIOLENCE WAS A
STATEMENT MADE BY DEFENDANT DURING A
DISAGREEMENT OVER PARENTING TIME.
POINT III
DEFENDANT IS ENTITLED TO A NEW HEARING
BECAUSE HE WAS DENIED DUE PROCESS WHEN
THE TRIAL JUDGE EXHIBITED BIAS AGAINST
HIM BY INTRODUCING INADMISSIBLE
EVIDENCE OF ALLEGED PRIOR BAD ACTS, SUA
SPONTE, BY CONDUCTING OUTSIDE RESEARCH
TO FIND EVIDENCE THAT WAS PREJUDICIAL
TO DEFENDANT AND BY PREVENTING
DEFENSE COUNSEL FROM QUESTIONING
PLAINTIFF ABOUT MATERIAL ISSUES.
We reject defendant's meritless arguments and affirm, substantially for the
reasons set forth in the judge's through and thoughtful opinion. We add the
following comments.
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Our review of a trial judge's fact-finding function is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). A judge's findings of fact are "binding on
appeal when supported by adequate, substantial, credible evidence." Id. at 411-
12 (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)).
Deference is particularly warranted where, as here, "the evidence is
largely testimonial and involves questions of credibility." Id. at 412 (quoting In
re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Such findings
become binding on appeal because it is the trial judge who "sees and observes
the witnesses," thereby possessing "a better perspective than a reviewing court
in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33
(1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). Therefore,
we will not disturb a judge's factual findings unless convinced "they are so
manifestly unsupported by or inconsistent with the competent, relevant[,] and
reasonably credible evidence as to offend the interests of justice." Rova Farms,
65 N.J. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154,
155 (App. Div. 1963)).
After considering the testimony and documents submitted at trial, the
judge found plaintiff's client to be highly credible, noting she had "no skin in
the game." The judge also found credible plaintiff's overall account of the
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parties' history of domestic violence. In that regard, plaintiff's account was
supported, in several instances, by documentation that included videos,
photographs of her injuries, and transcripts of witness testimony. On the other
hand, the judge found that "defendant didn't have a lot of I think solid excuses
for the prior history."
Judge DeMarzo found that defendant's intent in making the call was to
specifically upset and seriously annoy or intimidate plaintiff. He rejected
defendant's argument that the call involved a mere contretemps concerning
parenting time. The judge observed that defendant actively circumvented both
legal and physical barriers to place the call, in violation of existing civil
restraints, by using a third party's phone to get around the telephone block.
After careful examination of the record, we are satisfied that the evidence
amply supported the judge's determination that the predicate act of harassment
was satisfied by the telephone call and that an FRO was necessary to protect
plaintiff from further harassing communications, as less onerous measures had
failed to deter defendant.
We similarly reject defendant's argument that the judge acted improperly
in reviewing past TRO complaints filed against him. While judges are not
generally allowed to rely on independent research, Lazovitz v. Bd. of
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Adjustment, 213 N.J. Super. 376, 382 (App. Div. 1986), there is an exception
for domestic violence cases. The Domestic Violence Procedures Manual
provides: "The judge . . . shall review all related case files involving the parties."
Sup. Ct. of N.J. & Att'y Gen. of N.J., State of New Jersey Domestic Violence
Procedures Manual § 4.5.4 (Oct. 9, 2008). It further provides: "At the time of
the Final Hearing, the court’s file should contain . . . prior domestic violence
history, if any; and relevant financial, social and criminal record history." Id. at
§ 4.10.5. Given these mandatory directives, there was no error.
Affirmed.
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