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Grilk v. Latronica

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 18, 2008

BRIAN GRILK, PLAINTIFF-RESPONDENT,
v.
MANDI LATRONICA, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-000459-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 25, 2008

Before Judges Graves and Sabatino.

In a domestic violence complaint dated August 26, 2006, plaintiff Brian Grilk alleged that defendant, Mandi Latronica, "struck and scratched [him] in the area of his face and neck causing visible signs of injury." Following the trial, which took place on November 15, 2006, December 5, 2006, and January 10, 2007, the Family Part judge entered a final restraining order pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

On appeal, defendant presents the following arguments:

POINT I

THE COURT BELOW ERRED BY PERMITTING EVIDENCE NOT CONTAINED IN THE DOMESTIC VIOLENCE COMPLAINT THEREBY VIOLATING PROCEDURAL DUE PROCESS.

POINT II

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDING THAT THE SIX NON EXCLUSIVE CRITERIA SET FORTH IN N.J.S.A. 2C:25-29(a) WERE SATISFIED IN THIS MATTER.

POINT III

THE COURT BELOW IMPROPERLY ADMITTED PHOTOGRAPHS OF THE PLAINTIFF INTO EVIDENCE INASMUCH AS THEY WERE NOT PROPERLY AUTHENTICATED AT TRIAL.

Based on our review of the record and the applicable law, we conclude defendant's arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by the trial court with only the following comments.

The scope of our review is limited. A trial court's findings are binding on appeal when supported by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Such deference is particularly appropriate when the evidence is mostly testimonial and involves questions of credibility. Ibid. "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (alteration in original) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

With regard to defendant's procedural due process argument, we note: (1) the temporal proximity of the altercation in the American Legion parking lot and the subsequent incident at plaintiff's house; (2) the trial judge explicitly stated he would not consider plaintiff's testimony regarding the incident at his house "as part of the domestic violence because it's not in the complaint"; and (3) because defendant did not testify until January 10, 2007, she was neither surprised nor prejudiced by the testimony plaintiff presented on November 15, 2006. We recognize, of course, that "it is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint." L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999). But here the trial court did not base its finding of domestic violence on the events that transpired at plaintiff's house. See, e.g., Pazienza v. Camarata, 381 N.J. Super. 173, 186 (App. Div. 2005) ("Although the prior history was properly considered as providing context to the acts underlying the predicate offense, this was not a proceeding that transformed those prior acts into the predicate offense.").

The trial court found plaintiff was a credible witness, and it determined plaintiff was "clearly entitled to a final restraining order." From our review of the record, we are satisfied the trial court's findings, including its credibility assessments, are amply supported by sufficient credible evidence and its conclusions predicated on those findings are legally sound. We therefore affirm the final restraining order substantially for the reasons stated by Judge Waks in his oral decision on January 10, 2007.

Affirmed.

20080318

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