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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...