J.D. v. M.D.F.

• Citation: 25 A.3d 1045,207 N.J. 458
• Parties: J.D., Plaintiff–Respondent,v.M.D.F., Defendant–Appellant.
• Decision Date: 28 July 2011
• Court: United States State Supreme Court (New Jersey)

207 N.J. 458

25 A.3d 1045

J.D., Plaintiff–Respondent,

v.M.D.F., Defendant–Appellant.

Supreme Court of New Jersey.

Argued Jan. 19, 2011.Decided July 28, 2011.

Anthony J. Balliette, Wildwood, argued the cause for appellant (Richard A. Renza, Jr., attorney).J.D. argued the cause pro se.Monica C. Gural argued the cause for amicus curiae Legal Services of New Jersey (Melville D. Miller, Jr., President, attorney; Ms. Gural, Mr. Miller, and Mary McManus–Smith, on the brief).Justice HOENS delivered the opinion of the Court.

This appeal presents questions relating to the way in which proceedings brought pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25–17 to –35, are conducted.

First, we consider the due process implications that flow from permitting the putative victim to testify about alleged prior acts of domestic violence that were not identified in the complaint. More specifically, we consider how courts confronted with such proffers of testimony can, consistent with the goals of the Act, ensure that both parties are afforded the due process protections to which they are entitled.

Second, we address the parameters of due process to which defendants in domestic violence proceedings are entitled when they seek to call and to cross-examine witnesses.

Finally, we consider the kind and the quantum of evidence required to support issuance of a domestic violence restraining order which is based on the predicate act of harassment.

I.

From 1993 until 2006, plaintiff, J.D., and defendant, M.D.F., were engaged in a long-term relationship. Although they never married, they resided together and two children were born to them. After they ended their relationship, they sought the assistance of the courts in a variety of disputed proceedings, including a litigated palimony suit, the details of which are not apparent from the record on appeal in this matter. What is clear from the record is that following their separation, their relationship continued to deteriorate and they were on the verge of becoming embroiled in a custody dispute when the events that gave rise to this appeal occurred.

Throughout the proceedings relating to the domestic violence allegations in the trial court, the parties appeared without attorneys. As a result, the record has presented challenges to courts at every level. Relevant to this dispute, it appears that at all times since the end of the relationship, plaintiff continued to reside in the home that she and defendant had purchased together. The couple's two children resided with her, as did an older child of hers that she had from a relationship prior to the one with defendant. By the time of the events in issue, plaintiff had begun a relationship with a new person, R.T., who she referred to as her boyfriend, and who was present during the events in question.

Because defendant first asserts that his due process rights were violated, we recite the facts not in chronological order but as they were disclosed in the domestic violence complaint and as they unfolded at trial. Plaintiff's domestic violence complaint,¹ which was filed on September 19, 2008, was apparently compiled with the assistance of court personnel based on information plaintiff supplied and was transcribed on a court-approved form. According to the complaint, plaintiff and her boyfriend, R.T., observed defendant outside of plaintiff's residence at 1:42 a.m. taking flash photographs. In the complaint, plaintiff alleged that as soon as her boyfriend pulled aside the curtain to look, defendant drove away. According to the complaint, “[p]lain[tiff] reports def[endant] did this for the sole purpose of harassing plain[tiff] and attempting to cause strain in plain[tiff]'s present relationship.”

The court-approved complaint form has a series of boxes identifying the numerous predicate offenses that can support issuance of a domestic violence restraining order, but on the complaint filed by plaintiff none of the boxes for a predicate act was checked off. The form also has a space for reciting prior or pending court proceedings between the parties. In that part of the form, plaintiff's September 2008 complaint identified two Family Division matters by docket number. The two docket numbers apparently relate to the palimony dispute and a custody and parenting time matter. The complaint also refers generally to “prior FVs” without further explanation.

In the section of the complaint form that requested identification of prior incidents of domestic violence, plaintiff referred to several. These were: (1) a June 2008 incident ² in which defendant was outside of the residence taking pictures and asked her boyfriend “how the accommodations were”; (2) an undated incident ³ in which defendant climbed in her window and “attempted to have relations w[ith]” her; (3) an assertion that during “their separation def[endant] would come to the residence at various times”; and (4) an allegation that “[d]uring another occasion pla [intiff] had locked her doors and yet def[endant] was able to gain entry & harass” her.⁴

Based on that complaint, a Temporary Restraining Order (TRO) was issued and a return date was set for the following week. For reasons not apparent from the record, the matter was adjourned and a new return date fixed for a few days later. Plaintiff, accompanied by R.T., and defendant appeared on the adjourned return date.

After administering the oath to plaintiff and defendant, the trial court began to hear testimony from plaintiff about the basis of her complaint. Plaintiff briefly described the events that took place on September 19, explaining that her boyfriend, after emerging from the shower, went to hang a towel at the bedroom window. According to plaintiff, as R.T. was looking out of the window, he told her that he saw defendant outside taking pictures. Plaintiff further testified that she then “went to the window and [defendant] was in his white Dodge, outside the house and you could see flash photography. And he—then my boyfriend proceeded to pull the curtains back and [defendant] pulled away.”

After that explanation of the basis for her request for a restraining order, the court inquired further of plaintiff, asking whether there was “[a]nything else you think I should know?” Plaintiff responded by referring to “multiple incidents,” none of which had been identified in the complaint as being part of the prior history of domestic violence between the two. The prior incidents that were outside of the complaint have been referred to by the parties as the “videotape,” the “lacrosse field,” and the “Wawa” incidents. The “videotape” refers to an incident in which defendant left an embarrassing home videotape, created with plaintiff's knowledge and consent, in her mailbox with a message indicating that her new boyfriend should see it. The “lacrosse field” incident refers to a series of verbal arguments between the parties about parenting styles and about one child's missed practice sessions and included one dispute between defendant and R.T. about R.T.'s role in the lives of the children. The “Wawa” incident refers to a conversation between defendant and R.T. in a convenience store parking lot during which plaintiff was not present.

In describing those incidents, plaintiff recited the contents of text messages she asserted she had received and she reported the substance of conversations to which defendant and her boyfriend alone had been parties. She told the court that R.T. could corroborate her testimony if needed.

As plaintiff's testimony proceeded, the trial court repeated the earlier inquiry, asking “anything else you think I should know?” In response, plaintiff continued to add to her factual testimony, expanding it to include her views that the communications were “threats” and were “annoying” and offering her impression that the conversation between defendant and her boyfriend was defendant's effort to harass him as well.

When plaintiff concluded her series of responses to the trial court's repeated inquiries by saying, “that's basically it,” the court offered defendant an opportunity to respond. Defendant immediately said that many of the incidents about which plaintiff had just testified had occurred long ago and asserted that he had not known that plaintiff would be referring to them. As part of that answer, defendant told the court that he “really wasn't prepared.” Notwithstanding that, defendant attempted to respond and the court inquired in detail about several of those earlier incidents that had not been identified in the complaint.

After hearing defendant's responses to those questions, the trial court inquired about the early morning photography incident. Defendant did not immediately respond, attempting instead to discuss one of the other incidents that he believed would explain the reason for his decision to take photographs. Defendant then requested that plaintiff's boyfriend be sequestered and that he be given an opportunity to question R.T. about the photography incident. The court granted both requests.

Defendant did not deny that he had gone to plaintiff's residence and had taken photographs in the early morning hours, but his response concerning that incident was two-fold. In part, he sought to attack plaintiff's credibility by challenging her testimony that his car was parked while he was taking the photographs. He testified that he was driving slowly by, offering that as evidence in support of his testimony that he intended not to be detected.

Second, defendant attempted to suggest that he had an innocent motive for taking the photographs as proof that he did not intend to harass plaintiff. Although he was reluctant to reveal his motive, it was apparent that defendant had been preparing to file, and on the same day when he was served with the TRO he had filed, a motion seeking to challenge plaintiff's custody of their two children. It was readily apparent from his...