On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FV-02-002060-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 15, 2008
Before Judges Fuentes and Chambers.
Defendant Paul Eierman appeals from the entry of a domestic violence restraining order dated April 18, 2007, entered against him. We reverse, since the single act of touching plaintiff Karen Winters to stop her from getting into her car in order to talk to her at the end of their romantic relationship did not constitute domestic violence within the meaning of the statute.
Plaintiff and defendant met sometime in 2005. In the beginning of March 2006, plaintiff, although married to another man at the time, moved in with defendant. Plaintiff moved out about six months later to return to her husband. The parties, however, continued to maintain a relationship. They spoke on the phone; defendant picked plaintiff up at the airport in November 2006; and plaintiff gave defendant a Christmas present in 2006. They last had intimate relations in January 2007.
On Valentine's Day, 2007, they went out for drinks and dinner, and defendant gave plaintiff presents and cards. Defendant testified that they had lunch and drinks on February 21, 2007. However, when defendant stopped by plaintiff's workplace on February 22, 2007, to give her a present for her fiftieth birthday, he testified that she was "not too receptive," and when he stopped by on February 23, 2007, to wish her a happy birthday, she gave him the "cold shoulder." He testified that at that point, he understood that "things had changed." He did not speak to her during the month of March. On April 6, he stopped by to see her at her place of employment, and she once again was "cold."
The domestic violence complaint arose out of an incident that took place a few days later, on April 10, 2007. On that day, at about 7:30 p.m., which was the time plaintiff ended her work day, defendant went to plaintiff's place of employment where she worked as a receptionist. Defendant explained that he went there to talk to her to find out why she was so cold to him, and to complete "some unfinished business," since he still had some of her possessions, including her computer and some items of clothing, at his residence. When he walked in, plaintiff asked him to leave, which he did. When she left about fifteen minutes later, defendant was waiting in the parking lot for her.
The testimony of the parties differs as to what happened next. According to plaintiff, defendant blocked the entrance to her car and grabbed her arm*fn1 to prevent her from getting into the car. She dropped everything and ran into the building, where she called the police. She acknowledged that she suffered no injury in this event, nor did defendant pursue her further. According to plaintiff, the whole incident lasted less than a minute. Defendant testified that he attempted to talk to her, asking her what was wrong. When he leaned over, she began to pull the car door shut and started screaming. He backed away. She exited her car and walked into the building, and he left.
Defendant is a seventy-one year old man who holds an engineer's license in the State of New Jersey and a captain's license with the U.S. Coast Guard. He has no history of domestic violence, and plaintiff acknowledged that, prior to this event, there had never been any domestic violence between the parties. The trial court found that both parties were "decent human beings" and expressly noted that defendant presented himself as "a professional, well-mannered, [and] well-spoken individual" and a person who "has his act together." The trial court found that defendant "exercised bad judgment which I do not think is his character."
The trial court accepted plaintiff's version of events. The trial court found that defendant "did not use good judgment" on the day in question, and determined that by waiting for plaintiff in the parking lot after being asked to leave, defendant was engaging in harassment, since he knew plaintiff did not want him there. The trial court also found that defendant had touched plaintiff. Because this was an unpermitted touching, the trial court found that it constituted domestic violence.
Our review is limited, since we may not overturn the factual findings and legal conclusions of the trial court unless we are "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." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In a case in which the evidence is largely testimonial, we must give special deference to the factual findings of the trial court since it is better able to determine the credibility of the witnesses due to its opportunity to hear and observe their testimony. Cesare v. Cesare, 154 ...