On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County.
Approved for Publication June 19, 1997.
Before Judges Petrella, Landau and Wallace. *fn1
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 "in 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:
Early 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, ...