Cesare v. Cesare

• Decision Date: 19 June 1997
• Citation: 302 N.J.Super. 57,694 A.2d 603
• Parties: Kathleen CESARE, Plaintiff-Respondent, v. Richard CESARE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 57

302 N.J.Super. 57

694 A.2d 603

Kathleen CESARE, Plaintiff-Respondent, v. Richard CESARE, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued May 12, 1997.

Decided June 19, 1997.

Donald W. Stieh, Somerville, for defendant-appellant (Stanton & Stieh, attorneys; Mr. Stieh, of counsel, and on the brief).

Paul D. Amitrani, Somerville, for plaintiff-respondent (Bowers, Murphy, Lieberman, Amitrani & Lambo, attorneys; Mr. Amitrani, on the brief).

Before Judges PETRELLA, LANDAU and WALLACE. ¹

PER CURIAM.

Defendant Richard Cesare appeals from the entry of a domestic violence order. He argues that the Family Part Judge erred as a matter of law in finding that he committed an act of domestic violence.

Kathleen Cesare, the plaintiff, and Richard Cesare, the defendant, had been married for thirteen years and had three children, ages 12, 10, and 6 at the time of the hearing. The plaintiff, a school teacher, testified that the couple had discussed ending their marriage for several years, and that she had left her husband, a landscaper, in August 1995, for a six-week separation after which they had reconciled.

Plaintiff testified that on the evening of July 9, 1996, she and defendant got into an argument because she wanted to end the marriage. During the argument, the pair discussed the custody of the children. Plaintiff testified that defendant said there was no way she would get custody of the children and that he was not going to sell the house and give her half of the proceeds. Plaintiff informed defendant that he might not have a choice if a court ordered it. She said: "I said to him that if we went through the system that, you know, I asked him, Do you think you'll have a choice?" Plaintiff said he responded: "As I've told you before, I do have a choice, and you will not get either of those things." She interpreted this statement as a threat because "[i]n the past he has told me that he will kill me before I get custody of our children and before he gives me any part of our assets." The argument lasted perhaps an hour and ended when defendant said he felt sick and went upstairs to bed. Plaintiff said her husband did not use any profane language during the exchange.

After he was upstairs for about five minutes, defendant started asking his wife to come upstairs. She said that he sounded agitated and angry, and shouted from the top of the stairs: "What are you still doing down there? Why don't you come up here?" At this time, two of the children were apparently sleeping upstairs in the house, with the third child at a friend's house. After persistent pleas by defendant for plaintiff to come upstairs, she said she responded: "Why, do you want to shoot me now?" In reaction, defendant apparently glared at her for perhaps five or ten seconds and then returned up the stairs. She said her fear was: "That he had gotten a gun out upstairs and that he wanted me upstairs so he could use it." There were guns in the house. Fearful for her own safety, she thereafter put a jacket on over her pajamas and left the house and children to go to the police department. There, she signed a complaint under the Domestic Violence Act (Act). N.J.S.A. 2C:25-17 et seq.

According to plaintiff, during their marriage her husband had made a number of threats to kill her as follows:

We have railroad tracks behind our house. He has told me he could, you know, make it look like I was taking a walk and somehow secure me to the railroad tracks until the train came. He has told me that he would put me in our shed, make it look like--tie me in our shed, make it look like some type of gas, propane explosion. He said that he can make it look like suicide.

In plaintiff's words, threats of this nature occurred:

Over the course of the last maybe five years when our marriage would get very difficult and I would, you know, start to bring up the idea that maybe we would be better apart, it would end up in these threats, but probably only maybe, you know, it probably came to that point maybe once a year over the last five years.

Plaintiff testified that her husband never apologized for or retracted any of these threats and generally was very angry during these discussions.

As part of the history of the marital relationship, plaintiff also stated that:

[E]arly in our marriage, he slapped me a couple of times, but it didn't turn into regular behavior. He, he would, when he was yelling at me would get me maybe against a wall, not, not even with his hands, but just with his entire body, you know, keep talking at me until I was backed up against the wall, or backed up. At one point I was completely over, bent backwards over a chair.

Plaintiff also described that a couple of years ago defendant:

was hitting our son for some incident in the back yard, I don't remember what the actual incident was, and I was calling from the house for him to stop, and he, you know, he didn't listen. So I told him I was going in to call the police.

According to plaintiff, there were other disagreements and arguments between the parties. However, the only other time that she reported any incident to the police was in May 1996. Plaintiff did not pursue the matter or file any complaint at that time. Plaintiff acknowledged that they had attended marriage counseling and also that her husband was on medication for depression.

Henry A. Phillips, plaintiff's father, testified on behalf of his daughter that defendant told him that he did not intend to carry out his threats to take plaintiff's life but admitted making such statements. Defendant acknowledged that the couple had an argument on July 9, but denied ever threatening plaintiff with a gun, or previously threatening to tie her to railroad tracks or put her in a shed and kill her.

At the trial, on July 18, 1996, the judge considered, without referring to any specific criminal statute being violated, see N.J.S.A. 2C:25-19, whether the proofs before him were sufficient to constitute an act of domestic violence. ² The judge appeared to find a threat, presumably a terroristic threat, see N.J.S.A. 2C:12-3 and N.J.S.A. 2C:25-19(3), rather than harassment, see N.J.S.A. 2C:33-4 and N.J.S.A. 2C:25-19(13), under the Act.

The judge noted that in seeking a restraining order some people come to court with the intent of gaining an advantage in an impending divorce action in order to obtain custody of the children or possession of the home or both. ³ In evaluating the evidence, the judge observed that the words "that were used that particular night ... did not, even by the plaintiff's admission, contain a threat to kill voiced by the defendant." The judge acknowledged that both parties told conflicting stories, and that defendant denied ever threatening the life or safety of the plaintiff. The judge felt that the testimony of plaintiff's father, Phillips, essentially tipped the balance in her favor because the judge could not comprehend what Phillips would gain by testifying, even though it was on behalf of his daughter. The judge said Phillips:

wouldn't willfully get up here and lie about it just to gain an advantage for his daughter. He could just as well let the matrimonial action proceed on its own and let it resolve on itself.

The judge then concluded that plaintiff was credible and that threats were made which put her in fear of her life, based upon the totality of the circumstances. He considered that defendant's words "I do have a choice," had implications beyond the literal meaning of those words. Thus, the judge issued a restraining order, and ordered an evaluation of defendant with regard to custody and visitation.

Aside from legal issues, our scope of review is normally limited to whether there was sufficient credible evidence to support the trial judge's finding that an act of domestic violence had been committed. State v. J.T., 294 N.J.Super. 540, 544, 683 A.2d 1166 (App.Div.1996). To support such a finding where there is no actual physical abuse, the court must find by a preponderance of the evidence that the defendant committed one of the enumerated classes of prohibited conduct in N.J.S.A. 2C:25-19 and that there was a "previous history of violence between the parties including previous threats, harassment and physical abuse...." Peranio v. Peranio, 280 N.J.Super. 47, 54, 654 A.2d 495 (App.Div.1995); see also Corrente v. Corrente, 281 N.J.Super. 243, 247, 657 A.2d 440 (App.Div.1995) (recognizing that the Act was designed to address "regular serious abuse between spouses"). We do not generally disturb a judge's fact-findings unless there was a palpable abuse of discretion, that is the findings "are so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106, 449 A.2d 1280 (1982); Formosa v. Equitable Life Assurance Society, 166 N.J.Super. 8, 20, 398 A.2d 1301 (App.Div.), certif. denied, 81 N.J. 53, 404 A.2d 1153 (1979). The judge's finding here of an act of domestic violence on July 9, 1996, resulted in a manifest denial of justice.

N.J.S.A. 2C:12-3b makes it a crime of the third degree to "threaten[ ] to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out." (Emphasis supplied). Whether a terroristic threat has been made must meet the statutory criteria for such an offense and be measured by an objective standard, "the reasonableness of the victim's fear," State v. Smith, 262 N.J.Super. 487, 517-518, 621 A.2d 493 (App.Div.), certif. denied, 134 N.J. 476, 634 A.2d 523 (1993), giving due regard to the circumstances under which the statements were made. State v. Nolan, 205 N.J.Super. 1, 4-5, 500 A.2d 1 (App.Div.1985). The "gravamen of the offense involves the communication of a threat to kill in such terms as would in the attendant circumstances convey to an ordinary individual that the language...