On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1004-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...