November 14, 2007
JOSEPH KOWALSKI, PLAINTIFF-RESPONDENT,
CATHERINE KOWALSKI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-430-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 30, 2007
Before Judges Skillman and Yannotti.
Defendant appeals from a final domestic violence restraining order entered against her on application of her husband, plaintiff Joseph Kowalski, on September 20, 2006. This order barred defendant from the marital home, awarded plaintiff temporary custody of the parties' three children and required defendant to submit to a psychiatric evaluation.*fn1
At the hearing that resulted in entry of this order, plaintiff testified that defendant came home from work around 6 p.m. as he was starting to prepare dinner. When defendant entered the kitchen, she told plaintiff that she was going to invite "her boyfriend, Lou" to the house that evening. Plaintiff responded that he did not think that would be "a good idea" and that he would feel "very uncomfortable" having defendant's boyfriend in the house. Defendant then became enraged and started cursing at plaintiff. Plaintiff told defendant he had a tape recorder in his pocket and was going to record her cursing in front of their children, who were four and six at the time.
According to plaintiff, as he reached into his pocket to take out the tape recorder, defendant "lunged" over the kitchen counter, "grabbed" his shirt, ripped a button off and partially ripped the pocket. Defendant then grabbed one of plaintiff's arms with one hand and his thumb with the other hand. As described by plaintiff:
She just tried to rip my thumb off my hand, it felt like. She just tore it right back.
Plaintiff testified that he experienced great pain as a result of defendant bending his thumb backwards and suffered a "severe sprain" or "torn ligament." As a result of defendant bending his thumb, the tape recorder fell from plaintiff's hand onto the floor. Defendant then picked up the recorder and threw it at plaintiff's head. At this point, plaintiff called 911 and the police responded to the marital home a short while later.
Defendant acknowledged that she and plaintiff had a loud verbal alteration when she returned home from work on the evening of September 13, 2006. However, defendant denied that she cursed at plaintiff or physically attacked him in any manner. Defendant alleged that plaintiff fabricated his version of the incident to obtain custody of their children.
The trial court credited plaintiff's version of the September 13, 2006 altercation between the parties and concluded that defendant's conduct was harassment within the intent of N.J.S.A. 2C:33-4(b). The court further concluded that this harassment constituted an act of domestic violence that warranted entry of a final domestic violence restraining order.
Defendant argues that the restraining order must be reversed because the trial court did not make an express finding that the purpose of her conduct was to harass plaintiff. However, we conclude that such a purpose may be reasonably implied from the court's finding that defendant tore plaintiff's clothing, grabbed his arm and bent his thumb backwards, and threw a tape recorder at his head. Although a party may use offensive language without a purpose to harass and thus not violate N.J.S.A. 2C:33-4(a), see D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994), we believe that the purpose to harass was implicit in defendant's assaultive actions towards plaintiff. Therefore, the court's finding that those acts occurred was sufficient to support the conclusion that defendant violated N.J.S.A. 2C:33-4(b).
Defendant also argues that the trial court erred in entering a final domestic violence restraining order because there was no finding of a prior history of domestic violence between the parties. However, "one sufficiently egregious action [may] constitute domestic violence under the [Prevention of Domestic Violence] Act," warranting entry of a domestic violence restraining order, "even with no history of abuse between the parties[.]" Cesare v. Cesare, 154 N.J. 394, 402 (1998); see also McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007). The act of domestic violence involved in this case consisted of a physical assault upon plaintiff without any provocation. Moreover, the evidence before the court indicated that there had been a series of escalating altercations between the parties, even though none of those altercations had been found to constitute an act of domestic violence. Several of those altercations, as well as the act of domestic violence that defendant was found to have committed upon plaintiff, occurred in the presence of the parties' young children. Therefore, the trial court did not abuse its discretion in concluding that defendant's harassment of plaintiff constituted domestic violence that warranted issuance of a final domestic violence restraining order.