July 3, 2007
LISA PAMULA, PLAINTIFF-RESPONDENT,
ANTHONY G. TORELLI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Morris County, FV-14-1566-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 6, 2007
Before Judges Payne and Graves.
Defendant, Anthony G. Torelli, the divorced husband of plaintiff, Lisa Pamula, and the father of five-year-old Matthew Torelli, appeals from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:35-17 to -33.
The order arises from events occurring on June 18, 2004, during Matthew's transfer from his mother's to his father's custody for visitation while in the parking lot of a local restaurant. At the time, defendant, driving a Lexus SUV, was in the company of his fiancée and her seventeen-year-old daughter. Matthew resisted the transfer, but eventually defendant was successful in depositing him in the back seat of the Lexus. However, Matthew, who had not been restrained in a car seat, managed to open one of the car's rear doors. Plaintiff, seeing the door open and realizing that the child had not been secured, crossed in front of the SUV and proceeded to the opened door. The Family Part judge, at the conclusion of an evidentiary hearing, made the following findings of fact as to what happened next:
I find listening to the testimony today the door was opened; the child was unsecured; there was a lot of yelling going on. The defendant knew full well that the plaintiff was around the side of the car.
He had already been told by her, I find, don't move this car until he's secured. And I find as a fact that he went forward, knowing all of those factors to still be in existence. . . . [T]his plaintiff could very well have been run over by the vehicle. He didn't want to wait -- I don't find him credible to tell me today that he didn't know either where she was or what was going on. He wasn't waiting for the door to be secured. He wasn't waiting for his son to be settled down. He just wanted to get out of there. And I find he did it in such a way that it endangered the safety of the plaintiff. And, as a matter of fact, ran over the foot of the plaintiff.
The FRO entered in the matter was based upon these facts. In a prior appeal, we affirmed the judge's factual findings, but determined that he had used the wrong legal standard when assessing the father's recklessness, employing a reckless driving standard, not the criminal standard set forth in N.J.S.A. 2C:2-2b(3). Pamula v. Torelli, No A-6567-03T2 (App. Div. September 12, 2005). We stated:
[I]n this case the judge had to determine if an assault, as defined in the Penal Code, had been committed by defendant. Since the judge concluded, justifiably, that the evidence did not support an aggravated assault, it was necessary to find a simple assault. That offense, as defined in N.J.S.A. 2C:12-1a(1), would require that defendant attempted to cause or purposely, knowingly, or recklessly caused bodily injury to plaintiff. In so doing, the judge focused on recklessly. Up to that point, the judge's analysis was sound. [Slip op. at 5-6.]
After explaining that the wrong standard of recklessness had been utilized, we continued:
The applicable definition [of recklessness] is found in N.J.S.A. 2C:2-2b(3). We have no way of knowing whether the judge would have found that defendant committed a simple assault if he had applied the correct mental state.
Accordingly, the matter must be remanded. On remand, we see no reason why any additional testimony must be taken. As noted, we have accepted the judge's fact findings, as we must. Cesare [v. Cesare], 154 N.J. [394,] 411-13 [(1998)]. It is only the legal conclusion flowing from those facts that must be reconsidered. [Id. at 6.]
In finding, upon remand, that defendant's conduct met the criminal standard of recklessness, the Family Part judge first quoted the applicable statute, N.J.S.A. 2C:2-2b(3), which provides:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.
The judge then found that the evidence adduced at the hearing regarding defendant's conduct had met the standard and, further, that a simple assault as defined in N.J.S.A. 2C:12-1a had occurred.
As a foundation for the conclusion that defendant had acted recklessly, the judge repeated his former findings that the door of the SUV remained open and that the child was not secure in the vehicle. He also noted that defendant, upset and wishing to leave the scene, attempted to do so, knowing "full well that [plaintiff] was positioned where her testimony said she was, that is, trying to get the child back in the vehicle with the door partially opened." Defendant, the judge found, "chose to start moving forward with the scenario of the door open, the child not secure . . . and trying to, simply, get out of the vehicle." The judge held that, in the circumstances described, defendant acted in a manner that disregarded the unfolding situation.
He disregarded a substantial and unjustifiable risk that presented itself and, therefore, was responsible for the results of taking that risk.
[T]he risk here is of such a nature and degree that, considering the nature and purpose of the conduct and the circumstances known to Mr. Torelli, [his conduct constituted] a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
Additionally, the judge reaffirmed his conclusion that an injury had occurred, stating that there had been an injury to plaintiff's foot that was significant enough to require medical treatment. Having found the elements of a simple assault, consisting of "recklessly causing bodily injury," to have been proven, the judge reaffirmed his prior finding that an act of domestic violence had taken place that supported the entry of an FRO.
On appeal from that determination, defendant contends that plaintiff's proofs of injury were insufficient to sustain the judge's conclusion that a simple assault had occurred. We disagree.
Although no proofs were presented as to the extent of plaintiff's injuries, at the hearing, plaintiff's testimony was essentially unrebutted that the SUV had been driven over the end of the toes of her left foot, that she had fallen, that she had been taken by ambulance to Morristown Memorial Hospital, and that, at the time of the hearing, she remained under medical treatment by a doctor whose name she disclosed. Additionally, an independent witness, Paul Haley, testified to witnessing plaintiff's fall as the SUV proceeded forward, to seeing her on the ground "crying and screaming," and to observing a "scrape or two" and "some markings on her pants" prior to the arrival of the ambulance. We regard this evidence as sufficient to establish "bodily injury" under the standards set forth in N.J.S.A. 2C:11-1a ("Bodily injury" means physical pain, illness or any impairment of physical condition") and cases such as State v. Sewell, 127 N.J. 133, 135 (1992) (injuries sustained as the result of bump, causing woman to fall against slot machine; struggle, causing defendant's arm to strike a second woman; and flight, causing defendant to run into a third woman, were sufficient to constitute "bodily injury"); State in the Interest of S.B., 333 N.J. Super. 236, 239-40, 242 (App. Div. 2000) (kick in leg, without "any particular pain"); and State v. Downey, 242 N.J. Super. 367, 371 (Law Div. 1988)(slap, causing stinging sensation). The injury can clearly be distinguished from that sustained in State (Harris) v. Cabana, 315 N.J. Super. 84, 88 (Law Div. 1997), aff'd o.b., 318 N.J. Super. 259 (App. Div. 1999) when a candidate's knuckle grazed the chin of a rival during a verbal confrontation.
Additionally, we find no error in the judge's conclusion that defendant's conduct constituted recklessness as that term is defined by N.J.S.A. 2C:2-2b(3). The judge found that defendant knew of the risk to plaintiff existing when he drove off in the SUV while plaintiff was at the car's open rear door, attempting to safeguard her son, and that he consciously disregarded that risk, potentially exposing plaintiff to injuries of the type that she sustained, or worse. Our review of the record satisfies us that the judge's conclusion was evidentially supported, and we accept it, Cesare v. Cesare, 154 N.J. 394, 411-13 (1998), determining, as well, that the facts are sufficient to meet the applicable standard. State v. Parsons, 270 N.J. Super. 213, 224 (App. Div. 1994). "A single act can constitute domestic violence for the purpose of the issuance of an FRO." McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007); see also N.J.S.A. 2C:25-19a(2). We therefore affirm the entry of an FRO in this case.
Defendant has additionally challenged the award of attorneys' fees against him in the amount of $4,997.65, entered by the Family Part judge following the evidentiary hearing in the matter.*fn1 The order setting forth that award stated:
The order reflects the court's review of the files, the entry of an FRO against defendant, supporting papers of plaintiff's atty and opposition papers of defendant's atty. The court further considers appropriate statutory authority under N.J.S.A. 2C:25-29(b)(4) and case law.
We have recently confirmed in McGowan, supra, that an award of attorneys' fees in a domestic violence matter is governed solely by the factors enumerated in R. 4:42-9(b) and not by those set forth in R. 5:3-5(c). Id. at 507-08 (disapproving Pullen v. Pullen, 365 N.J. Super. 623 (Ch. Div. 2003)). Because defendant relied upon Pullen, and did not raise objections cognizable under R. 4:42-9(b), we affirm.