April 9, 2008
UZMINA ANJUM, PLAINTIFF-RESPONDENT,
ASIF AZIZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1896-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 11, 2008
Before Judges Skillman and Yannotti.
Defendant Asif Aziz appeals from a final restraining order entered by the trial court on June 27, 2007, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. For the reasons that follow, we affirm.
On May 23, 2007, plaintiff Uzmina Anjum filed a domestic violence complaint alleging that defendant, who is plaintiff's spouse, threatened her on May 19, 2007, when he stated, "[w]hat I am going to do to you, you cannot imagine." Plaintiff alleged that she fled the marital home in fear of her life. She claimed that defendant "constantly beat" her and "threatened her continuously." The trial court entered a temporary restraining order that, among other things, prohibited defendant from returning to the marital home, having any contact with plaintiff or the parties' three children, and committing any future acts of domestic violence.
On June 22 and 27, 2007, Judge Paul A. Kapalko conducted a trial on plaintiff's application for a final restraining order. Plaintiff testified that she and defendant have been married since 1997. Three children were born of the marriage: two sons and a daughter. Plaintiff asserted that on Saturday, May 19, 2007, at around 9:30 a.m., she informed defendant that she was going to work and intended to leave the children at home. According to plaintiff, defendant stated that he would not look after the children and she would have to take them with her. Plaintiff said that she would do so.
Plaintiff asserted that she and defendant previously had argued about the family car. Defendant told plaintiff that if she intended to buy a new car, she would have to pay for her own insurance. He added that, from that time forward, plaintiff would have to pay half of all household expenses. Plaintiff told defendant that she was willing to pay "half of everything" but he should do half of the household chores and pay for the baby-sitter.
Plaintiff testified that defendant got angry and said that he was not going to do anything. He told plaintiff that she could do whatever she wanted to do. According to plaintiff, defendant also said, "[y]ou can't even imagine what I'm going to do to you." Plaintiff stated that she was scared. She left for work with the children. She dropped the sons off with the baby-sitter, and took her daughter to her swimming class. Plaintiff asserted that at about 6:00 p.m. or 6:30 p.m., she returned to the baby-sitter's house. The boys were not there and the baby-sitter told plaintiff that defendant had picked up the children and left.
Plaintiff did not locate her two sons until 10:00 p.m., when her daughter phoned defendant. He refused to say where he was but plaintiff listened in on the conversation and, from the sound of voices in the background, she believed that defendant was at his sister's house in Brooklyn. Defendant did not return home until 1:00 a.m. He had the boys with him. Plaintiff said that defendant had keys to the house but "banged [on] the door" and rang the bell "really loud." Plaintiff said that defendant "dumped the kids" and went to another room.
The following day, plaintiff had a class at her mosque. In accordance with their usual practice, defendant brought the children to the mosque. He left the daughter and departed with the two sons. Plaintiff explained that the parties' eldest son is autistic and the younger son is two and a half years old. Plaintiff said that she spent the day looking for the boys. On that day, plaintiff went to a shelter. On May 23rd, she filed her complaint and made an application to the court for a restraining order.
Plaintiff stated that she tried to return home but she was "too scared" from the incident that occurred the previous evening. She said that defendant had been threatening to throw her out of the house for a long time. She asserted that, in the Indian culture, defendant's statements meant that she would be thrown into the streets and would have to live like a beggar. Plaintiff maintained that, to her, defendant's statements meant that: she would have to live like a prostitute; no one would help her; defendant would take over the house; he would not divorce her; and he would not give her anything.
Plaintiff additionally testified concerning a prior incident that occurred on Saturday, April 28, 2007. On that day, plaintiff told defendant that she had to take the younger son to the doctor. She asked defendant to take the older son with him that day but defendant refused because he had to take the car to be serviced. According to plaintiff, the discussion got angry and defendant told plaintiff to "get out of this house." Plaintiff said that defendant struck her.
She asserted that defendant was going to strike her again but she held his hand. Plaintiff told defendant that if he hit her again, she would call the police. She dialed 9-1-1. Plaintiff's mother was present at the time. She told plaintiff to put the phone down and "talk it out in a cool manner." The police came to the home but plaintiff left before they arrived.
Plaintiff stated that two weeks after the court issued the temporary restraining order, she returned to the marital home. She had the locks changed and moved in. However, on the third day, she noticed that someone had entered the house through the patio door. Plaintiff said that nothing was broken but certain of her husband's personal items were missing. Plaintiff left the home and, as of the date of the hearing, she was not living there.
Plaintiff's mother Mehar Nigar Anjum testified about the incident that occurred on April 28th. She stated that plaintiff and defendant argued after she asked him to look after the parties' older son. Ms. Anjum stated that she was at the door. She heard plaintiff screaming and came inside. She said that she saw defendant slap plaintiff. According to Ms. Anjum, defendant lifted his hand to hit plaintiff again but plaintiff held his hand and prevented him from doing so.
According to Ms. Anjum, plaintiff said that she was going to call the police and defendant pushed her "so much that [plaintiff] fell back." Ms. Anjum asked plaintiff to refrain from calling the police but, by that time, plaintiff had already made the call. Plaintiff left the home and took one of the children to the doctor. Ms. Anjum said that defendant's "behavior with [her] daughter [was] very bad."
Defendant provided a different version of the events of April 28th and May 19th. Defendant stated that he did not strike his wife on April 28th. Defendant asserted that on that day, he took the children swimming in the morning and returned home around 9:30 a.m. He had the car serviced and returned home around 1:30 p.m. Defendant said that he slept for awhile, went out for groceries, and was home for the remainder of the day. He said that his wife told him that the police had been called to the home that day, but she said that she told the police that the call was a mistake.
Defendant additionally testified that on May 19th plaintiff told him that he was going to have to take care of the children because she had to go to work. Defendant said that he did not tell plaintiff that she would have to take care of the children. He denied that they argued about the car. He said that nothing unusual happened that day. Defendant stated that he did not tell plaintiff that she could not "imagine" what he was "going to do" to her. Defendant also said that he could "never say something like that." He added that later that day, he picked up the boys at the baby-sitter's home and took them to Brooklyn.
After hearing the testimony, Judge Kapalko placed his decision on the record. He found that plaintiff's version of the events of April 28th and May 19th was more credible than defendant's version of those events. The judge stated that plaintiff's testimony made more sense than that of defendant. The judge also noted that plaintiff's mother supported plaintiff's testimony concerning the incident of April 28th. Judge Kapalko stated that: an act of harassment certainly took place on April 28th and that [defendant] did strike [plaintiff] and did attempt to strike her a second time. And I'm satisfied that the language that was utilized on May 19th during the course of the argument between the parties took on significance and greater meaning by virtue of the prior history between the parties and the prior [assault and] harassing behavior.
Now, the final issue that needs to be addressed is whether or not there is a reasonable fear on the part of the plaintiff and I'm satisfied under the history of this particular case that there is such a reasonable fear. These were not isolated incidents.
[Plaintiff's] behavior subsequent to the most recent incident and the filing of the complaint further underscores that. [Plaintiff] went to the shelter. She had an order which gave her exclusive right to use and occupy the premises. She's been concerned about returning to the premises for her safety. She has chosen not to do that for an extended period of time and all of this is consistent with her having fear and I don't find this to be an excessive or unreasonable fear or a disproportionate fear based upon the circumstances. [Plaintiff] has been in a controlling relationship. She was assaulted and harassed on April 28th.
That behavior continued thereafter. [Plaintiff] recounts [a] prior history of controlling behavior of that nature and she has concerns for her safety and that these circumstances will continue in the absence of a restraining order. . . . For all of these reasons I find in favor of the plaintiff and [conclude that] a final restraining order should be issued in this case.
On appeal, defendant raised the following contentions for our consideration:
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDING THAT ASIF AZIZ ASSAULTED AND HARASSED THE PLAINTIFF.
THE TRIAL COURT IMPROPERLY FOUND THAT MR. AZIZ HARASSED THE PLAINTIFF.
THE TRIAL COURT IMPROPERLY FOUND THAT A FINAL RESTRAINING ORDER WAS NECESSARY TO PROTECT THE PLAINTIFF.
THE FAILURE TO ASK MR. AZIZ IF HE WANTED A CONTINUANCE VIOLATED HIS RIGHT TO DUE PROCESS.
We have carefully reviewed the record in light of the arguments raised by defendant and the applicable law. We are convinced that defendant's contentions are entirely without merit. R. 2:11-3(e)(1)(A) and (B). We affirm substantially for the reasons stated by Judge Kapalko in the decision that he placed on the record on June 27, 2007. We add the following brief comments.
The standard of review that governs our consideration of defendant's appeal is well established. "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) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
"Therefore, an 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.'" Ibid. (quoting Rova Farms, supra, 65 N.J. at 484). 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.
We are satisfied that there is sufficient credible evidence in the record to support the judge's findings of fact. We note that the judge's decision to accept plaintiff's version of the incidents of April 28th and May 19th was based in large part on his assessment of the credibility of the parties. We must defer to the trial judge's findings where, as here, the findings "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). We are convinced that, based on his factual findings, Judge Kapalko properly determined that defendant committed an act of domestic violence, as defined in N.J.S.A. 2C:25-19, specifically harassment pursuant to N.J.S.A. 2C:33-4a.
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