On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County.
King, Havey and Ariel A. Rodriguez. The opinion of the court was delivered by King, P.J.A.D.
[270 NJSuper Page 270] This is an appeal from a final restraining order entered on June 22, 1993 by Judge Kelly barring the wife, Charlene Mann, from the family residence in Trenton. The final order granted temporary custody of the three children -- ages 11, 12 and 13 -- to the husband, Lawrence Mann, with "liberal reasonable visitation pursuant to a written schedule to be set." The order also imposed a
"mutual freeze on all marital assets in [the home]." The Judge dismissed Charlene Mann's domestic violence cross-complaint.
Appellant Charlene Mann claims that the Judge's ruling was "against the weight of the evidence." On July 24, 1993 we entertained an application by plaintiff for emergency relief from the order through either a stay or a summary reversal. At that time, we requested counsel to obtain a transcript of the June 22 hearing. Upon review of the transcript, we were satisfied that Judge Kelly's order was at least presumptively justified by the evidence presented to him at that time. We denied emergency relief.
The Judge had concluded, after hearing sworn testimony from each side, that the defendant Lawrence Mann was not guilty of criminal trespass or harassment under the Prevention of Domestic Violence Act of 1991. N.J.S.A. 2C:25-17 to -33 (Act). To the contrary, the Judge found that Charlene Mann was guilty of criminal mischief and harassment under that Act. See N.J.S.A. 2C:25-19(a)(10) and (13). He found that:
[T]he plaintiff, Lawrence Mann, has established his case by the preponderance of the evidence. I find that the pulling on the phone, the pulling out of the cord, the striking with the door, the repeated acts of interfering with the telephone call and it should be noted that at the time it either was known or should have been known by Mrs. Mann that the police had been called since it was done right in her presence and that hardly is the kind of acts that one would do to -- right after calling the police. There's no question that the door jamb or part of the door was broken. It's admitted but that is his property, it was not done maliciously, it was done to get inside. I find by a preponderance of the evidence that he has established his burden of proof under the criminal mischief and harassment on June 14.
The Court will issue a restraining order against Mrs. Mann.
We now conclude that this finding was supported by credible evidence in the record and must be affirmed. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 323 A.2d 495 (1974); Roe v. Roe, supra, at 432-33, 601 A.2d 1201 (App.Div.1992). We reject plaintiff's claim on appeal that the record does not support the judgment on the issue of domestic violence.
We recognized in June, when we first heard this matter, that (1) the remedy imposed, a bar from the home and loss of custody of the children, might well be disproportionate and unduly punitive if imposed on a permanent basis, and (2) a parallel Family Court action (FM-11-1071-93; filed on May 25, 1993 by Charlene Mann) for dissolution of the marriage and resolution of custody and economic issues, was pending, also before Judge Kelly. On July 1, 1993, we entered this order with respect to the requested interim relief:
The motion for a stay pending appeal is denied; the motion briefs are accepted as merits' briefs; these briefs may be supplemented by letter briefs within 30 days; the Clerk is directed to place the matter on the oral argument calendar of Part B at Trenton during the month of September 1993. We relinquish jurisdiction to the Family Part during the pendency of this appeal to the extent that it may desire to modify the outstanding order upon its own motion or the parties' application. R. 2:9-1(a).
Thus, while accelerating the appeal of the domestic violence order on the merits, we allowed the Family Part the latitude to deal effectively with the case pending this appeal of the ...