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Pisello v. Pisello


June 25, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FV-21-707-06.

Per curiam.



Argued June 6, 2007

Before Judges Parker, C. S. Fisher and Yannotti.

Defendant Peter Pisello appeals from a final restraining order entered against him on June 22, 2006, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -33. We affirm.

The parties were married on July 23, 1994, and two children were born of the marriage. On July 1, 2005, a final judgment of divorce was filed. In the property settlement agreement, which was incorporated in and made part of the divorce judgment, the parties agreed that plaintiff Nona Pisello would have "sole and exclusive possession" of the former marital home, with the understanding that the home would be listed for sale and sold within one year after the agreement.

The instant matter arises from a dispute between the parties at the marital home on June 12, 2006. As a result of this dispute, defendant obtained a temporary restraining order, based on his allegation that he had been assaulted by plaintiff. Plaintiff obtained a temporary restraining order on or about June 14, 2006. Plaintiff alleged that defendant had harassed and assaulted her. The parties were ordered to appear in court on June 22, 2006.

Judge Amy O'Connor conducted a hearing on the return date. Defendant testified that he went to the marital home on June 12, 2006, to install smoke and carbon monoxide detectors, as well as fire extinguishers, so that the home could be sold. Defendant said that plaintiff told him someone had broken into the garage and some things were missing. Defendant went to the garage, where he found a home-made "marijuana bong" on a top shelf.

Defendant grabbed the "bong" off the shelf and a dispute erupted. Defendant said that he was concerned about the "bong" because his oldest son has had issues with "smoking pot in the past."

Defendant claimed that plaintiff started screaming and tried to grab the "bong" from him. Defendant testified that he endeavored to leave the garage and reached for the door but plaintiff came running towards him, slammed his fingers into the door, and started swinging at him. Defendant asserted that he managed to run out of the garage and went to the front yard. He stated, "I didn't touch her. I didn't do anything."

Plaintiff's version of the incident was different. She said that defendant started to harass her in the morning of June 12, when he called and asked about the smoke detectors. Plaintiff told defendant that she had purchased what she needed and dropped the items off with the new owner. According to plaintiff, defendant cursed and screamed at her. Plaintiff testified that she left the home because her grandmother had been rushed to the hospital. When she returned, defendant and the new owner were at the house. Later, plaintiff was doing the laundry when defendant approached her. The parties got into an argument concerning the removal of an old water heater from the house. Plaintiff told defendant that he should leave but he refused.

According to plaintiff, defendant told her that some tools were missing from the garage. Plaintiff called the police on her cell phone to report a burglary or theft and went out to the garage. Defendant followed. Plaintiff and defendant entered the garage and plaintiff saw that her tools were missing.

Defendant found the "bong" and grabbed it. He said, "[W]hat the fuck is this?" Defendant reproached plaintiff, stating, "This is what your are allowing our children to do." Plaintiff testified:

Now, I'm in between him and the door. The next thing you know he's trying to get out.

He's screaming and yelling. I'm on the phone with the dispatcher and he shoves me out of the way. I fell on the ground. I have bruises all here which I have documented and bruises here, Your Honor. I must have hit the wood or whatever it was because it's just a garage.

Plaintiff said that she was screaming on the phone, and told defendant to stop. Defendant was trying to get out of the garage. Plaintiff asserted:

He was, Your Honor. I won't deny that he was, but I was on the ground. He stood up, and he must have swung somehow, and my cell phone was in my left-hand, and he hit my hand, and my cell phone flew across the whole thing. I'm lucky it wasn't broken. And then he did. He got out and I went after -- chasing him, [stating], you had no right to be in here. And I tripped . . . . I caught my foot as I was running out the door telling him he had no right to be there.

Plaintiff added, "I never laid a hand on him."

Judge O'Connor placed her decision on the record. She found that plaintiff was more credible than defendant. The judge based this finding on her observations of plaintiff's demeanor and the manner in which plaintiff answered the questions. The judge stated that plaintiff's testimony was "forthright and honest." The judge noted that defendant's girlfriend had testified on his behalf but the judge did not "find her credible at all."

Judge O'Connor found that defendant had committed an act of domestic violence, specifically harassment under N.J.S.A. 2C:33-4b. The judge found that defendant had pushed plaintiff with sufficient force to cause her to fall and sustain bruises. The judge determined that this was an offensive touching of plaintiff by defendant. The judge entered the final restraining order in plaintiff's favor, and dismissed defendant's complaint. This appeal followed.

Defendant argues that: 1) the trial court made insufficient findings of fact and conclusions of law to support the entry of a final domestic violence restraining order; 2) the acts attributed to defendant do not rise to domestic violence within the meaning of N.J.S.A. 2C:33-4; 3) the events of June 12, 2006 were insufficient to justify the issuance of a final restraining order; and 4) the entry of a final restraining order based on the facts before the court does not serve the purpose of the PDVA. We are convinced that these contentions are entirely without merit. R. 2:11-3(e)(1)(E). We therefore affirm the order appealed from substantially for the reasons stated by Judge O'Connor on the record on June 22, 2006.



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