On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Number FV-04-806-05.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 16, 2005
Before Judges Fall, Grall and King.*fn1
Plaintiff Mark I. Silver appeals from an order entered in the Family Part on January 5, 2005, dismissing his domestic violence complaint that he had filed against defendant Dale C. Silver pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The following factual and procedural history is relevant to our consideration of the issues presented on appeal.
The parties were married on September 12, 1987. Two children were born of their marriage: Jonathan, on August 27, 1989; and Jordan, on March 5, 1997. The parties separated in or about September 2003.
On March 9, 2004, plaintiff filed a complaint for divorce against defendant in the Family Part, Camden County, seeking, inter alia, a judgment dissolving their marriage, and awarding him sole custody of the children. At that point, Jordan was primarily residing with plaintiff, and Jonathan was primarily residing with defendant.
On July 27, 2004, a consent order was entered in the matrimonial action, restraining defendant from plaintiff's residences; providing defendant specified parenting time with Jordan, as supervised by her parents; requiring pick-up and drop-off of Jordan at the Warwick Condominiums in Atlantic City during those specified times; and restraining defendant from other contact with Jordan, pending further order. The order also provided:
6. This Order is entered by both parties without prejudice to any positions that he/she may take in connection with the applications scheduled to be heard on August 6, 2004 and this litigation in general. Both parties are entering into this Order to avoid the filing of cross Orders to Show Cause to allow the issues to be more fully explored by the Court at the time of the August 6, 2004 hearing. This Order does not constitute a finding by the Court nor an admission by either party.
On that same date, July 27, 2004, plaintiff and defendant filed complaints against each other under the PDVA in the Atlantic City Municipal Court, alleging acts of assault and seeking the issuance of restraining orders. Each complaint provided the same narrative of the incident:
On 7-27-04 the victim and defendant got into an argument over a custody order. Both parties have visible injuries after a physical confrontation.
Both complaints stated there was no prior history of domestic violence, and that criminal complaints had been filed against both parties charging them with simple assault, N.J.S.A. 2C:12-1a(1).
The municipal court judge issued a temporary restraining order (TRO) on each complaint, and scheduled a final hearing in the Family Part, Atlantic County, for August 5, 2004. Both parties gave written statements to the police that contained conflicting versions of the incident. However, the parties agreed that the dispute between them centered over the supervised-visitation portions of the July 27 consent order that had been issued in the matrimonial action.
On August 5, 2004, the Family Part, Atlantic County, issued a consent order in the domestic violence actions, continuing the restraints contained in the July 27, 2004 TROs, without prejudice; incorporating additional restraints, essentially as contained in the July 27, 2004 matrimonial order; and setting forth additional specific supervised parenting time for defendant with Jordan.
On August 27, 2004, an order was entered in the matrimonial action, transferring the domestic violence complaints to the Family Part in Camden County, and scheduling a final hearing. That order also dealt with the issues of supervised parenting time, discovery, and non-dissipation of marital assets.
A final hearing on both domestic violence complaints was conducted in the Family Part on January 5, 2005. Defendant testified that on the evening of July 27, 2004, she drove, with her girlfriend Nancy Forrester, to the Warwick Condominiums in Atlantic City to pick up Jordan for the parenting-time session scheduled to commence at 4:15 p.m. She stated that her parents, who were to serve as supervisors, were on their way to Margate to pick up Jonathan from camp, and they were all to rendezvous later on the Atlantic City boardwalk.
Defendant testified she was waiting in her parked car in front of the Warwick Condominiums, when plaintiff drove up with Jordan. She stated that Jordan exited plaintiff's vehicle, and plaintiff inquired as to Jonathan's whereabouts, stating that he wanted to have dinner with Jonathan that night; defendant explained that Jonathan had declined the dinner invitation.
Plaintiff then entered his vehicle and left, leaving Jordan with defendant and Forrester. Defendant and Forrester then brought Jordan up onto the boardwalk where they sat on a bench to wait for defendant's parents and Jonathan.
Defendant stated that approximately seven or eight minutes later plaintiff returned in his vehicle, which he pulled close to the boardwalk area, and yelled to plaintiff, stating that because her parents were not there to supervise the parenting time, as required by the court order, he wanted Jordan to come back with him. Defendant testified she left Jordan with Forrester on the boardwalk, and walked down to plaintiff's car to "try to reason with him[.]"
Defendant claimed that when she got to his car, plaintiff moved over to the passenger's side of his vehicle, and she entered the driver's side, then proceeded to explain that Forrester was there and that her parents would be coming soon. Plaintiff would not accept that explanation, and ordered her out of his car, stating "if you don't get out of my car, I'm going to hit you." He then began dialing a number on his cell phone. Defendant claimed that the following then occurred:
He started dialing, then when he finished dialing he looked at me, he was very angry and he raised his hand and I thought he was going to hit me, coming at me. I put my hands up to block him and he put his hand on my neck and started choking me.
Defendant stated that during the altercation "he also bit me on my finger and on my arm, but that was later." Defendant admitted she slapped and scratched plaintiff during the altercation, but asserted she did so to defend herself. She also stated that she had not entered plaintiff's vehicle with the intent to assault him.
A tape of the 9-1-1 calls by the manager of Warwick Condominiums and by plaintiff to the 9-1-1 operator was played in court, and we have been provided a copy of the 9-1-1 tape of the calls and a transcript thereof.
During her testimony, defendant also described an incident purportedly occurring on June 9, 2004, in Cherry Hill, during which she asserted that plaintiff had threatened to kill her. Upon inquiry by the court, defendant acknowledged that her domestic violence complaint stated there was no ...