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T.R. v. D.P.


January 22, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1004-07.

Per curiam.



Submitted December 19, 2007

Before Judges Lihotz and Simonelli.

Defendant appeals from the entry of a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17, to -35. We affirm.

On December 11, 2006, plaintiff filed a domestic violence complaint against defendant, and obtained a temporary restraining order. On December 19, 2006, the parties appeared pro se at a hearing for a FRO. The testimony revealed that plaintiff and defendant have three children together, they lived together for six years, but did not live together on December 11, 2006. On that day, defendant came to plaintiff's residence to pick up the children for visitation. He had not seen the children for about a month because he had undergone brain surgery.

Defendant was prescribed several narcotic pain medications as a result of the surgery. On the day of the incident, he took Oxycodone. He also drank scotch or bourbon with ice, although he could not recall how many glasses he had consumed. Because defendant had been instructed not to drive when he took the medication, his friend, C.D., drove him to plaintiff's residence to pick up the children.

According to plaintiff, when she approached the car, she saw defendant seated on the passenger side. The children got into the back seat of the car. When plaintiff opened the back door, "the whole car smelled like alcohol," and "it was obvious [defendant had] been drinking." Because defendant had been drinking, plaintiff did not feel comfortable with him taking the children. She began taking the children out of the car. Defendant then got out of the car, grabbed plaintiff's arms, and slammed her up against a truck, causing pain in her back and bruising on her arms, which the trial judge observed at the hearing. Defendant then took plaintiff down to the ground and acted as if he was going to hit her. Defendant's friend, C.D., got out of the car, grabbed defendant, pulled him away from plaintiff, and told him to get away from her. Plaintiff got up and was crying. She told the children to get out of the car. Defendant "then got mad again and moved as if he was going to hit [her]."

Plaintiff also testified this was not the first time defendant assaulted her, and "[t]hings have been very unstable and very unpredictable" between them. Plaintiff also testified she was afraid of defendant because he was unpredictable. Defendant did not dispute this testimony.

Defendant admitted there was an "incident of contact" on December 11, 2006, between him and plaintiff, and "[t]his was a situation that escalated where it should not have gone." Defendant denied being intoxicated, but admitted he and plaintiff had a discussion about him being intoxicated. He also admitted that he drank alcohol, took Oxycodone the day of the incident, and had been prescribed medication for alcohol withdrawal because of "the drinking patterns that I have -- I drink several times a week."

Defendant also admitted he got out of the car, picked up his daughter who had run to him, and when plaintiff tried to take the child from him, he "did push her arms away and I pushed her away and down from me because she was trying to take my daughter out of my hands."

Because the judge wanted to hear from C.D., the hearing was continued on January 30, 2007. Defendant appeared that day with counsel. He changed his testimony about how much he had to drink. He also changed his testimony about what happened after he got out of the car, and stated, "I just put my arm up to keep [plaintiff] from taking my child."

On direct examination, although C.D. testified he drove to plaintiff's residence because defendant had taken the narcotic medication, he never mentioned that defendant had also been drinking. C.D. also testified plaintiff said she smelled alcohol, asked defendant if he was drunk, and told defendant he could not take the children. C.D. admitted defendant pushed plaintiff with his right arm, causing her to lose her balance and fall.

After reviewing all of the testimony, Judge Kilgallen made specific findings of fact and credibility determinations. The judge rejected defendant's testimony, stating:

And when I talked before about a lapse in judgment, this defendant does have and I believe suffer[s] from a lapse in judgment, because no one thinking clearly would take oxycodone and drink Maker's Mark alcohol, whatever that is. And it troubles me too to hear that defendant is prescribed medication to keep him from having alcohol withdrawals. I mean, that seems to indicate that the defendant has a significant problem with alcohol, and therefore, I believe that those lapses in judgment make it especially dangerous for this plaintiff not to obtain a final restraining order.

Although the judge found C.D. credible, she stated:

I'm satisfied that [C.D.] was not even outside the car when the initial incident occurred where the defendant grabbed the plaintiff's arms and slammed her up against the truck. I believe that [C.D.] was probably in the car at that time and I do believe that as a result of that incident the plaintiff was caused injury. She had bruising and she had pain. And she testified that she had pain in her back. She testified then that the defendant actually "took her down to the ground." And that he got ready as if to strike her, he menaced her.

And that [C.D.] interceded. [C.D.] doesn't recall it that way. [C.D.'s] testimony is that the defendant is holding one of the children and the plaintiff is trying to take the child away. And that as a result of swinging his arm the plaintiff was caused to fall against the truck and then down in between two cars. [C.D.] recalls that the plaintiff went down. And anybody going down on the ground hitting a car, hitting themselves is going to suffer pain. And I'm satisfied, again, that the plaintiff did suffer pain at the hands of this defendant.

The judge concluded:

I do find that on December the 11th, 2006 this defendant did commit an act of simple assault upon the plaintiff as defined at N.J.S.A. 2C:12-1. And that is where one attempts to cause or purposefully knowingly or recklessly causes bodily injury to another. Bodily injury is simply defined at N.J.S.A. 2C:11-1 as meaning physical pain.

When you talk about the standards of culpability, I don't find that the defendant purposefully caused injury to the plaintiff. Purposefully is where a person acts purposely with respect to the nature of his conduct or as a result thereof or if it is his conscious object to engage in the conduct of that nature or to cause such a result.

I believe though that the defendant did act knowingly. A person acts knowingly if he is aware that his conduct has a high probability of causing the result. Here I believe that he knew in grabbing the plaintiff's arms and pushing her back that she was going to sustain an injury. And certainly he acted recklessly, and that's where one consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct if it is a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

I mean, here, even as [C.D.] testified, even if it happened just that way, if he was just swatting her away because he was holding the baby, he knew that he took an oxycodone. He knew that he had been drinking Maker's Mark. He knew that the plaintiff expressed concern that he had been drinking and she didn't want him to have the children that day. It was extremely foolish to do anything other than say, here's the baby. You're right. I'll see you tomorrow.

I believe that [C.D.] tried to have that result occur. I believe that again he was the voice of reason that night. And I agree, and I believe that had [C.D.] not been there, this situation might have been a lot worse and that perhaps [D.P.] wouldn't be walking around a free man today.

But I do find that on the 11th of December he did commit a simple assault upon the plaintiff. And we have to also remember another portion of a simple assault as defined at [N.J.S.A.] 2C:12-1A is where one attempts by physical menace to put another in fear of imminent serious bodily injury.

And I believe that this plaintiff was afraid.

Our review of a trial judge's findings is a limited one. Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will reverse only if we are convinced the trial judge's factual findings and legal conclusions "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)); Fagliarone, supra, 78 N.J. Super. at 155.

Given the special jurisdiction and expertise of a family court judge, we accord deference to that judge's fact-finding. Cesare, supra, 154 N.J. at 413. We also afford deferential respect to a family judge's credibility determinations. N.J. Div. of Youth and Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova, supra, 65 N.J. at 483-84). However, a "trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 149 N.J. 366, 378 (1995)).

After carefully reviewing the record in the light of the arguments presented, we affirm substantially for the reasons articulated by the judge in her oral opinion of January 30, 2007. The judge properly found that defendant committed a simple assault upon plaintiff. "A person is guilty of assault if he (1) [a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (2) [n]egligently causes bodily injury to another with a deadly weapon; or (3)

[a]ttempts by physical menace to put another in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1a. Here, the judge's conclusion that defendant's actions toward plaintiff were done "knowingly" or "recklessly," he caused plaintiff bodily injury, and he put plaintiff in fear of imminent serious bodily injury is supported by substantial, credible evidence in the record.



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