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L.V. v. A.S.

April 29, 2008

L.V., PLAINTIFF-APPELLANT,
v.
A.S., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-2511-07A.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 9, 2008

Before Judges Axelrad and Messano.

Plaintiff L.V. appeals from the dismissal of her domestic violence complaint and the denial of her request for a final restraining order (FRO), N.J.S.A. 2C:25-29(b), following a trial in the Family Part. She contends that the judge failed to properly assess the evidence adduced, in particular according too much weight to her delay in filing the complaint, and concluding, as a result, that she failed to prove her need for an order of protection. We have considered her contentions in light of the trial record and applicable legal standards. We affirm.

The trial testimony revealed a long, contentious relationship that plaintiff and defendant began in 1991 for the sole purpose of having and raising children. Plaintiff never lived with defendant for any period of time, and claimed that she had "relations" with defendant on only three occasions. As a result, the parties had two children, both sons, T.S. and G.S., who at the time of trial were fourteen and thirteen years old respectively.*fn1 Plaintiff was also the mother of a daughter, D.S., from a prior relationship, who was seventeen years old at the time of trial, and another daughter, B.V., who was eleven years old and also not defendant's child.*fn2 For approximately four years before the trial, plaintiff resided with her domestic partner E.P.

Plaintiff testified that incidents of domestic violence started shortly after her relationship with defendant began. In August, 1992, plaintiff obtained an order of protection against defendant in the family court of Kings County, New York. In February 1995, the same court entered another order of protection based upon an incident of physical assault in which plaintiff claimed defendant had caused "bruises in [her] arm" and a "bruised" eye.*fn3

In June 2005, plaintiff obtained another order of protection from the family court in Philadelphia based upon an incident involving defendant and his mother.*fn4 She also testified that in January 2003, defendant visited her and the children in Philadelphia ostensibly to deliver Christmas presents to them. She claimed that on that occasion, defendant threatened "that if he ever saw [her] with a guy . . . he was going to kill [her] and the guy." Defendant then punched her and held a kitchen knife to her throat in front of three of the children. Plaintiff testified that defendant then turned the knife on himself and threatened to commit suicide. She did not seek an order of protection as result of this incident because she was "tired and exhausted of seeking orders . . . and it's been ongoing for ten years."

From March 2 to March 6, 2007, defendant stood trial in Philadelphia on charges that he had sexually molested D.S.; he was ultimately acquitted on all counts. Plaintiff testified that during the trial, defendant approached her and her children in the courthouse. He made a threatening gesture by tracing his forefinger across his neck as he looked at plaintiff and the children. Plaintiff claimed defendant made a similar gesture during court proceedings in 2005.

On April 8, 2007, plaintiff sought a domestic violence temporary restraining order (TRO) in the Family Part in Camden County. She alleged in her complaint that defendant had discovered where she was now living in New Jersey, had been "lurking around [her] kids['] school" and her "neighborhood," and on March 2, 2007, had yelled profanities at her and G.S. while making the same throat-slitting gesture. Plaintiff set forth some of the prior history of alleged domestic violence and specifically referenced the Philadelphia courthouse incident. Based upon her complaint, an ex parte TRO was issued.

At trial, plaintiff described the March 2, 2007, incident that was the basis for the complaint. She claimed that she was walking G.S. home from school when the boy tugged on her arm and alerted her to defendant's presence in an automobile nearby. Defendant was following them slowly, calling out G.S.'s name, and making the same throat-slitting gesture. Plaintiff and her son ran home in fear. After testifying about the prior incidents discussed above, plaintiff told the judge she feared defendant "[b]ecause . . . he's done harm to me in the past [a] few times. The kids and I fear him."

On cross-examination, plaintiff acknowledged that she testified against defendant during the criminal trial in Philadelphia. She further acknowledged that her complaint against defendant's mother was made contemporaneously with C.R.'s attempt to secure a court order allowing her to visit her grandchildren. Plaintiff also admitted that the 1995 order of protection against defendant was ultimately dismissed by the court, though she protested when defense counsel characterized the dismissal as a finding against her on the merits. Plaintiff acknowledged that the incident involving her and her son took place a few days after the criminal trial ended in defendant's acquittal, and that indeed the events may not have taken place on March 2, 2007, as stated in the complaint, but perhaps "a few days . . . after the trial was over." Plaintiff also knew that after defendant was acquitted at trial, he filed a petition on March 9, 2007, seeking parenting time with his two sons.

G.S. also testified about the incident. He claimed that defendant followed him and plaintiff on foot, not in a car, while they were walking on a bike trail in Merchantville one day after defendant's trial concluded. G.S. also testified about the March 2007 courthouse incident, claiming defendant approached plaintiff and words were exchanged. G.S. stated that he "looked away" when he saw defendant because "[he] was scared of him." G.S. testified that defendant "hit [him] a couple of times" in the past.

G.S., who was eight or nine years old at the time, described the Christmas present incident in January 2003 for the judge. He heard defendant tell plaintiff that if he ever caught her with another guy he would kill her. G.S. heard further argument and saw defendant holding plaintiff on the floor with a knife to her neck. G.S. tried calling 9-1-1 at his mother's request, but defendant smacked the phone out of his hands. Defendant then took the ...


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