On appeal from the Superior Court of New Jersey, Chancery Division, Morris County.
Approved for Publication January 17, 1997.
Before Judges Pressler, Stern and Humphreys. The opinion of the court was delivered by Humphreys, J.A.D.
The opinion of the court was delivered by: Humphreys
The opinion of the court was delivered by
Defendant T.B. (husband) appeals from a final domestic violence order which excludes him from the marital residence. A final domestic violence order was also entered against the brother of plaintiff N.B. (wife). The husband also appeals from the second order, contending that the order against the brother should have specifically excluded him from the marital residence; the brother cross-appeals. We hereby consolidate both appeals and the cross-appeal and render one opinion as to all three.
After thorough consideration of the record, we vacate the restraining order against the husband and affirm the restraining order against the brother.
The parties were living together at the marital residence when the alleged domestic violence arose. A divorce action was pending. The husband slept in the attic. The wife slept in the master bedroom; her brother slept in the basement. The wife had placed a lock on her bedroom door. The parties had joint custody of their three children in accordance with a pendente lite order. The two sons shared a bedroom; the daughter had her own room. The master bedroom and the childrens' bedrooms were on the second floor.
According to the defendant's testimony, on the morning of September 15th, he was on the second floor getting his daughter and the older son ready for school. The door to the master bedroom was open. He saw his daughter lying on the bed watching television. His one year old son was on the bed and saw him. The son slid off the bed and started walking toward him with open arms. At that point, his wife came from behind him, pushed him out of the way, went into the master bedroom and slammed the door in his face. He responded, "you can't do that." He opened the master bedroom door and walked inside the room. He attempted to pick up his son. His wife pushed him aside and refused to allow him to pick up his son. At that point, his wife's brother came out of the bathroom in the master bedroom and began shoving and pushing him against the wall.
The brother testified that the husband pushed the wife into furniture in the master bedroom; the brother then grabbed him and they wrestled. The husband testified that he did not touch his wife.
The wife testified that she came out of her daughter's room and saw her husband in the doorway of the master bedroom. She went by him and entered her bedroom. She tried to close the door while he attempted to push the door open. He suddenly swung the door open and pushed her out of the way. She stumbled backwards into a bookcase. Her brother then grabbed her husband.
At the Conclusion of the testimony, the wife's counsel advised the Judge that there was a joint custody order that permits the husband to visit with the children two nights a week. Counsel explained that because of the tension in the house, the husband comes to the house only on those nights. Counsel suggested that during those two nights, the wife go to her sister's home which was only ten minutes away. The husband could then visit with the children each and every week until the matter can come before the matrimonial court and custody and visitation be determined there.
The Judge said that it was difficult to assess the credibility of people involved in an altercation but that the defendant should have understood that the plaintiff was entitled to privacy in her bedroom and that "for him to force himself into the room, despite what his motives or reasoning might ...