T.H. VS. C.B. (FV-12-1861-16, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-4858-15T3
T.H.,
Plaintiff-Respondent,
v.
C.B.,
Defendant-Appellant.
______________________________________________________
Submitted June 26, 2017 – Decided July 13, 2017
Before Judges Fisher and Fasciale.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Middlesex County, Docket No. FV-12-1861-16.
Jabin & Fleming, LLC, attorneys for appellant
(Christian P. Fleming, on the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff commenced this action, pursuant to the Prevention
of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, alleging
defendant harassed her on April 19, 2016, as they ended their two-
and-one-half-year dating relationship. Defendant also filed a
domestic violence complaint, and the two matters were the subject
of one final hearing on April 27, 2016, at which time both parties
appeared without counsel. At the hearing's conclusion, the trial
judge granted a final restraining order (FRO) in favor of
plaintiff; defendant's action was dismissed.
Defendant appeals from the entry of the FRO in plaintiff's
favor,1 arguing:
I. THE TRIAL COURT IMPROPERLY DETERMINED THAT
THE ALLEGED CONDUCT CONSTITUTED HARASSMENT,
AND THUS THERE WAS NO PREDICATE ACT OF
DOMESTIC VIOLENCE UPON WHICH TO BASE A FINAL
RESTRAINING ORDER.
II. THE COURT ABUSED ITS DISCRETION AND
IMPROPERLY DENIED ADMISSION OF VIDEOTAPE
EVIDENCE.
Because we agree with defendant's second argument – that the judge
mistakenly denied admission of video evidence – we vacate the FRO
and remand for further proceedings. For that reason, we need not
reach defendant's first argument regarding whether the conduct
found by the judge to have occurred constituted harassment.
In support of her complaint, plaintiff asserted defendant
telephoned her fifty-one times on the day in question. Plaintiff
answered only one of these calls; that caller was defendant. The
judge, however, found the evidence was insufficient to support a
1
Defendant did not appeal the order dismissing his domestic
violence action.
2 A-4858-15T3
finding that defendant made the many other calls that day. Instead,
the judge found that defendant harassed plaintiff with regard to
what he said and did when he arrived at plaintiff's residence at
3:30 p.m. on the same day. Having found plaintiff to be a credible
witness, the judge determined that when defendant appeared at
plaintiff's residence he "threatened to show pictures"2 of
plaintiff "to people if [she] did not speak to him," and he accused
her of "sleeping around." The judge also found that, on an occasion
a week earlier, defendant "got upset" and called plaintiff "bitch,
whore, et cetera."
During the presentation of her evidence, plaintiff asserted
that she had taken a video of what transpired. When she offered
to show the judge the video that was accessible from her
smartphone, the judge responded she would have "a problem with
getting that into evidence" because she lacked "a separate
preserved recording." Defendant, however, immediately responded
he had no objection to the judge viewing the video. Indeed, later
in the proceeding, as defendant presented his own evidence, he
asked to have plaintiff "show her video," and when the judge asked
if that was what defendant wanted, defendant twice responded,
2
We discern from the judge's other findings that these were
intimate photographs.
3 A-4858-15T3
"[a]bsolutely." Notwithstanding, the judge did not permit a
showing of the video.
Defendant later moved for reconsideration, arguing in part
that the video, which had been excluded, would have supported
defendant's factual contentions. In denying the motion, the judge
explained that the video was not considered
because no foundation was laid, and she was a
pro se litigant. We don't just bring the video
in. . . . I have no obligation to bring that
video in. And typically when we have a pro se
litigant, without laying that foundation, it's
not coming in.
We reject this rationale.
In considering the sufficiency of the judge's exclusion of
the video, we first note that it is self-evident that there are
no separate evidence rules that apply only to litigants who are
self-represented. Consequently, the judge erred when he barred the
video's admission because plaintiff "was a pro se litigant."
As for the need for a foundation, we observe that the trial
judge, as gatekeeper, has "some degree of latitude" when
determining the sufficiency of evidence offered in support of the
authentication of evidence. State v. Hockett, 443 N.J. Super. 605,
614 (App. Div. 2016). But we find it an abuse of discretion for a
judge to fail to permit a proponent the opportunity to present
grounds for admission. Here, the judge denied admission without
4 A-4858-15T3
offering either party with an opportunity to authenticate the
video.
The burden of authenticating evidence "was not designed to
be onerous." Id. at 613. The proponent need only present evidence
"sufficient to support a finding that the matter is what its
proponent claims." N.J.R.E. 901. Here, the proposed evidence was
a video contained on plaintiff's smartphone that was available
when the evidence was offered. It is not clear what the judge
required for a foundation other than the testimony of a witness
that the images reflected in the video "reproduce[d] phenomena
actually perceived by the witness." State v. Wilson, 135 N.J. 4,
15 (1994) (internal quotation omitted). Proponents of a video or
motion picture are no longer required to detail the methods of
taking, processing, or storing the film. Id. at 14. Moreover, even
with such a low bar for authentication, the bar here was lowered
even further by the absence of an objection to its admission.
Indeed, as we have observed, both parties sought its admission,
implicitly conveying to the judge that they both believed the
video to be authentic.
We also do not find the video's exclusion to be harmless.
Both parties thought it highly relevant because it depicted some
or all the events giving rise to the FRO in question. Consequently,
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we conclude the judge's erroneous exclusion of that evidence was
prejudicial.
The FRO is vacated,3 and the matter remanded for the reopening
of the record to allow for the submission of the video and for a
reconsideration or reexamination of the evidence previously
adduced in light of this additional evidence.
Vacated and remanded. We do not retain jurisdiction.
3
The temporary restraining order shall stand in place of the FRO
pending the completion and disposition of the final hearing.
6 A-4858-15T3