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J.L.W. v. V.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 31, 2008

J.L.W., PLAINTIFF-APPELLANT,
v.
V.W., DEFENDANT-RESPONDENT.
V.W., PLAINTIFF-RESPONDENT,
v.
J.L.W., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FV-20-002002-06 and FV-20-002036-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 14, 2008

Before Judges Gilroy and Baxter.

Appellant J.L.W. appeals from: 1) the June 7, 2006, order of the Family Part, which dismissed the complaint he had filed against respondent, V.W., his wife, pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35; and from the final restraining order (FRO) entered the same day under a complaint filed by respondent, determining that appellant had committed the predicate act of harassment and granting respondent temporary custody of their two-year-old son. Appellant also appeals from the August 22, 2006, order, denying his motion for reconsideration. We affirm.

I.

On May 30, 2006, appellant filed a domestic violence complaint against respondent, alleging that respondent had harassed him on May 24, 2006, by threatening to cut his throat and stab him while he was sleeping, and again on May 25, 2006, by threatening to call the police to falsely accuse him of raping her. A temporary restraining order (TRO) was entered that day in favor of appellant. On June 2, 2006, respondent filed a domestic violence complaint against appellant, alleging that on May 28, 2006, appellant had assaulted and harassed her by pushing, choking, kicking, and slapping her several times.

The complaint also referenced prior assaults on May 15, and 27, 2006.

On June 7, 2006, Judge Robert Mega conducted a final hearing on both complaints, each party appearing pro se. Both parties testified in furtherance of their complaints and in defense of the complaint filed by the other. Each party also called an independent witness. At the conclusion of the hearing, Judge Mega rendered an oral opinion, determining that respondent's testimony was more credible than that of appellant's. The judge concluded that appellant failed to prove that respondent had committed the predicate act of harassment by a preponderance of the evidence, and entered an order dismissing his complaint. Moreover, after determining respondent more credible, the judge concluded that appellant had assaulted respondent and entered an FRO against him. Because the judge determined that appellant had assaulted respondent, he did not decide whether appellant had committed the act of harassment. In reaching his decision, the judge stated in relevant part:

The husband alleges that on 4/24/06, he told . . . the wife that he was going to file for divorce. And that when he told her that, . . . she became enraged and threatened that if you file for divorce, I'll cut your throat and stab you while you're sleeping.

[T]he wife denied that . . . allegation had occurred, although she did recall him speaking to her and telling her that he wanted to get divorced.

On May, the 25th, the husband claims that the wife called and told him that she should call the cops and tell them that he raped her. The husband has said that the wife has threatened . . . to harm him if he stops the immigration process, and that she has threatened to call the police and make false allegations against him.

On 5/27, [the wife] states that she was kicked at a point in time by him, and on --this is now centering on the wife's complaint. On 5/28, she claims that the plaintiff kicked her in the legs, slapped her in the face, which caused her teeth to throb, and that the plaintiff hit her with an open hand.

She submits to this [c]court pictures marked D-1, D-2 and D-3. The pictures were of her right leg and her right knee area, those pictures showing bruises to the knee. And D-2 showing swelling to the knee. And D-3, again, being a repetitive picture. But she says these are illustrative pictures of the bruises that he caused . . . on 5/27 and 5/28.

In this case, from a credibility standard, I note that the husband was very detailed and meticulous in a lot of his [evidence that he presented] to the [c]court. But it bothers this [c]court because certain things weren't so meticulous. The one key factor is everything was documented with credit cards, hotel receipts. But when he went and had breakfast -- not that this is all telling -- at the diner, when she claims that he was at the house assaulting her, he says, oh, I was at the diner by myself having breakfast and I didn't use a credit card so I have no way of verifying that.

And then I also note that when he testified today, he was very meticulous when things were going along his way, but when . . . the facts were going against him, he became very aggressive, appeared very controlling, and lacked witnesses on key pieces of evidence that I needed to know [about] as far as where were you, when were you at certain locations . . . .

On the other hand, the wife . . . sat very patiently, did get upset at times over certain issues, coming to tears . . . . But [was] very pensive, very direct, very matter-of-fact.

I also have complaints in this [matter] which were different than [those] I get in many cases. In many cases, when someone tells me that they were slapped in the [face], they tell me and explain, well, I had a stinging sensation, which is a very common response. In this case, that wasn't the response[.] [T]he response was, well, the slap hurt to the extent that my teeth were . . . throbbing, which to me, I find very credible based on the fact that it's not unusual when someone gets a shot in the [face], but most people don't give that much detail.

And just on the demeanor of the [husband] and the demeanor of the [wife], I found [the wife] to be very credible in her testimony to this [c]court, very concerned for her safety, about the fears that she had.

As I said, I have cross-complaints against each other here, but the thing that's noteworthy is that . . . [t]he husband in this case went to the police on 5/30/06, six days after the incident that I'll stab you while you're sleeping occurred, or I'll harm you, or I'll cut your throat. Six days. Restraining orders normally are based on exigent circumstances.

On the other hand, the wife alleges that the attack on her occurred on 5/28/06. Now, as I said, interestingly, the husband applied for the restraining order on the 30th, two days after the alleged attack on the wife, but 5 to 6 days after [he alleged that he was placed in fear for] his safety.

And I find this interesting. If somebody threatened to stab somebody while they were sleeping, there was no mention during the testimony when the police were there on the 27th that this occurred, none whatsoever throughout the testimony. It wasn't until the wife allegedly was hit on the 28th that two days later, the husband went to get a restraining order . . . .

Under the assault definitions and the statute and the facts of this case, as I had stated, I find the wife very credible. I do not find the [husband's] evidence as presented as credible because there [are] gaps in time and place as to when these circumstances occurred.

I find under the law that an assault was committed on the wife. I find that the life, health and well being of her [are] at risk. And that this assault was committed within the confines of the statute and the case law under the State of New Jersey.

I find that the . . . husband in this case purposely or knowingly caused bodily injury to her, as demonstrated by the pictures to this [c]court and her allegations of the throbbing of the teeth.

As to the husband's complaint, the judge stated:

And what I find that bothers me is that on the main incident that he claims that occurred on May 24, 2006, where he states that she threatened to kill him, there was no action taken on that incident for at least a week, from the 24th to the 30th. The 25th, on another incident, she told him that she was going to -- he alleged it was harassment that she was going to tell the cops that he raped her [or] forced sex. But then on the 27th or 28th, when the police came to the house, there was no mention about this stabbing. And that was the perfect time or place, for [stating that] you feared for your safety. It wasn't mentioned.

I don't believe from a credibility standpoint that it happened. And, therefore, I'm denying the relief [on] the husband's complaint for a restraining order.

On June 14, 2006, appellant filed a motion for reconsideration of both orders, contending that the trial judge had: 1) improperly considered inadmissible evidence; 2) failed to properly consider relevant and persuasive evidence that appellant had proffered; and 3) failed to allow adequate time for several of his witnesses to testify, or in the alternative, failed to adjourn the matter to allow the witnesses to testify. In support of his motion, appellant submitted various cellular telephone records, text messages, police incident reports, and urine toxicology reports, as well as notarized statements from the witnesses he intended to call if reconsideration was granted. On August 22, 2006, Judge Mega denied the motion for reconsideration, rendering a twenty-five-page oral decision, meticulously stating the reasons why he rejected each of defendant's arguments. A confirming order was entered the same day.

II.

On appeal, appellant argues:

POINT I. THE COURT ABRUPTLY AND EMOTIONALLY STOPPED THE PROCEEDINGS WHILE THE APPELLANT WAS GIVING TESTIMONY AND PREPARED TO REFUTE THE TESTIMONY OF THE RESPONDENT[,] THEREBY DENYING THE APPELLANT HIS GIVEN RIGHT TO BE HEARD.

POINT II. THE COURT SHOWED ABUSE OF DISCRETION WHEN IT FAILED TO CONSIDER OVERWHELMING EVIDENCE PRESENTED BY THE APPELLANT AND FAILED TO CONSIDER THE LACK OF EVIDENCE ON THE RESPONDENT'S PART IN RENDERING A FAIR AND UNBIASED DECISION.

POINT III. AT THE MOTION FOR RECONSIDERATION HEARING[,] THE COURT DEMONSTRATED AN ABUSE OF DISCRETION WHEN IT FAILED TO CONSIDER THE NEWLY DISCOVERED EVIDENCE THAT PROVED THAT THE RESPONDENT FABRICATED HER ENTIRE CASE AND PROVED THAT THE APPELLANT'S CASE WAS VALID AND THAT A NEW TRIAL WAS IN ORDER.

"The scope of appellate review of a trial court's fact- finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However,

"[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the issues raised.

We have considered appellant's arguments in light of the record and applicable law. We determine that all of the arguments made are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Mega in his comprehensive, oral decisions of June 7, 2006, and August 22, comments.

Appellant argues that he was not provided an opportunity to refute respondent's claims that appellant had physically assaulted her because the judge stopped the proceedings stating, "All right. I'm ready to rule on this matter." We disagree. Contrary to appellant's argument, the statement was made by the trial judge after he had permitted the parties great leeway in presenting each of their cases. The judge did not prevent either party from presenting any evidence on the merit of the matters. He only made the statement to stop a colloquy then transpiring between the parties, which was not relevant to any issue complained of.

The record reflects that the judge inquired of appellant on several occasions as to whether he had additional evidence to present to the court. At the end of appellant's direct testimony, the court inquired, "[i]s there anything else that you want to add on your complaint?" Appellant replied, "[n]ot that I could think of at the moment, Sir." Again, following respondent's direct testimony on her complaint, the judge inquired of appellant, "[a]nything else you wanted to add at this point?", after which appellant replied, "[y]es, Sir."

Appellant then testified in defense of respondent's complaint and on rebuttal of his complaint.

Appellant argues next that the trial court improperly terminated the proceedings before he had the opportunity to call additional witnesses to testify on his behalf, or in the alternative, failed to adjourn the matter to permit him to re- produce the witnesses who had to leave before the trial was concluded because of the time of day. We reject appellant's arguments for several reasons. First, appellant never requested that the court adjourn the proceedings for appellant to recall the three witnesses who left the courtroom. Moreover, when appellant was asked by the trial judge whether his witnesses were "going to be able to testify as to anything that happened" on the days complained of, appellant candidly stated "[n]o, sir[,]" nonetheless, the trial judge entertained the testimony of his brother. Appellant informed the court that the remaining witnesses, who had left the courtroom, were "here to testify that my son gets dropped off . . . with my mother." We are satisfied that such testimony was not relevant to the acts complained of and would not have changed the outcome of the proceeding.

Lastly, appellant argues that the judge abused his discretion by denying his motion for reconsideration. We determine otherwise.

Motions for reconsideration are governed by Rule 4:49-2. Reconsideration is a matter to be exercised in the trial court's sound discretion. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988). "A litigant should not seek reconsideration merely because of dissatisfaction with a decision of the [c]court." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).

"Reconsideration should be utilized only for those cases . . . that fall within that narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid.

Moreover, a party cannot use the reconsideration process to do what should have been done in the original proceeding. Reconsideration is only to point out "the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2. Reconsideration cannot be used to expand the record and reargue the trial. A motion for reconsideration is designed to seek review of an order based on the evidence before the court on the initial matter. R. 1:7-4.

A motion for reconsideration is not the procedure for the introduction of new evidence in order to cure an inadequacy in the trial record. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

We are satisfied after review of the record on the motion for reconsideration that appellant did not present any relevant evidence that could not have been presented at the trial. Fourteen of the proposed witnesses were appellant's family members, friends, or acquaintances. Moreover, none of the proposed witnesses possessed firsthand knowledge about the alleged incidents between appellant and respondent on the days complained of. Accordingly, we conclude that the trial judge did not abuse his discretion in denying the motion.

Domestic violence proceedings by their very nature are contentious, and litigants' emotions generally run high. Trial judges must exercise control over the proceedings in a manner that is fair and equitable to both parties. In reaching his conclusions, the trial judge determined that respondent was credible in her testimony, and appellant was not. Because the trial judge's conclusions were based on credible evidence in the record, we defer to his conclusions. We are satisfied that appellant received a fair trial on the complaints.

Affirmed.

20080131

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