September 11, 2007
LENORA AMBROSE, PLAINTIFF-RESPONDENT,
DEAN A. AMBROSE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FV-08-161-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 29, 2007
Before Judges A. A. Rodríguez and Parrillo.
Defendant Dean A. Ambrose (ex-husband), appeals from the September 14, 2006 Final Restraining Order (FRO) granted pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, finding him guilty of making terroristic threats towards Lenora Ambrose (ex-wife). N.J.S.A. 2C:12-3. We affirm.
These are the salient facts. The parties were divorced in June 2004 after twenty-one years of marriage. They had three children, ranging in ages from sixteen to twenty years old. Ex-husband is a physician, who is board certified in family medicine. In his brief, ex-husband concedes that "currently [his] license to practice medicine is suspended due to problems associated with the use of pain medication after [he] fractured his shoulder." He stated that his license was scheduled to be reinstated "on or about November 1, 2006."
Ex-wife is a healthcare worker. At the time the FRO was granted, she had become engaged to Paul Simonin. Ex-wife testified that on August 3, 2006, her ex-husband called her around 11:45 p.m. First, he congratulated her on the engagement. Then, he became hostile and said:
"If he f-ing touches you or the children, I will kill him and you, and they'll never find the bodies."
Ex-wife immediately hung up the telephone. A few minutes later, she received a text message from ex-husband's cell phone. The text message read:
"I don't make idle threats, so this mother fucker better watch his ass or you will be reporting a missing person, you'll never find [him] except maybe in an Alpo can. Don't fuck with me. Look up Jimmy DeJulio if you think I'm fucking with you. He'll have as much chance as a snowball in hell."
Ex-wife also testified about prior incidents of domestic violence committed by her ex-husband during the course of their relationship.
During ex-husband's testimony, he conceded that he made the telephone call, but denied that he made any threats. He also conceded sending a text message that evening, but denied that it was the same message that was shown to the judge in court. According to ex-husband, he learned that Simonin had recently "physically corrected" the parties' youngest son. He testified that the purpose of his call was to make his ex-wife aware of this and to object. Finally, he minimized the existence of a history of domestic violence with his ex-wife.
Judge Colleen A. Maier found ex-wife's testimony credible and that ex-husband had uttered terroristic threats the evening of August 3, 2006.
On appeal, defendant contends:
THE TRIAL COURT ERRED BECAUSE THERE WAS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW THAT APPELLANT VIOLATED THE ACT.
A. The Trial Court Did Not Consider a Complete Previous History of Domestic Violence.
B. Appellant Did Not Harass Respondent.
C. Appellant Did Not Commit the Crime of Terroristic Threats.
D. The Trial Court Erred by Ordering Relief for a Crime Not Alleged in the Complaint.
This contention is essentially a challenge to the credibility findings of the fact finder. Our scope of review as an appellate court is clearly established. If there is sufficient evidence in the record as a whole to sustain the trial judge's findings, we are bound by those findings, even if we might have reached a different result had we been the trial court. State v. Johnson, 42 N.J. 146, 162 (1964). Thus, "[a] trial court's findings of fact are binding on an appellate court if supported by adequate and credible evidence." Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "This is particularly so when, . . . the significant evidence is largely testimonial rather than documentary, and the trial court has had the opportunity to observe the witnesses and determine their credibility." Ibid. We do not have the same opportunity to hear and see the witnesses or to assess their credibility. Accordingly, substantial deference must be given to the trial judge's determination in that regard. Johnson, supra, 42 N.J. at 161; State v. Locurto, 157 N.J. 463, 470-71 (1999).
Here, Judge Maier fully explained her reasons for resolving the credibility issue as she did, and the record supports that determination. Thus, we have reviewed the record in light of the determination of credibility and conclude that there was sufficient evidence in the record to support the finding. Appellant has not satisfied his burden of showing that the judge's finding "is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162.
The remaining contentions are:
THE TRIAL COURT ERRED IN CONSIDERING HEARSAY EVIDENCE IN THE FORM OF A TEXT MESSAGE CONTAINED IN A CELL PHONE.
APPELLANT SUFFERED FROM INEFFECTIVE ASSISTANCE OF COUNSEL.
These contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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