May 19, 2008
KAREN CONROY, PLAINTIFF-RESPONDENT,
JAMES CONROY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-2445-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2008
Before Judges Lintner and Graves.
Defendant James Conroy appeals from two orders: (1) a final restraining order (FRO) entered on June 22, 2007, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to-35, in favor of his wife, Karen Conroy; and (2) a subsequent order awarding plaintiff counsel fees in the amount of $1900. On appeal, defendant presents the following arguments:
THE RECORD BELOW DOES NOT SUPPORT A FINDING THAT THE PLAINTIFF MET THE CRITERIA OF N.J.S.A. 2C:25-28f TO WARRANT AN EX PARTE EMERGENCY HEARING OR THAT AN ACT OF DOMESTIC VIOLENCE OCCURRED.
THE COURT'S BASIS FOR ENTERING THE FINAL ORDER WAS A MISAPPLICATION OF THE LAW AS PLAINTIFF DID NOT ESTABLISH THE REQUISITE ELEMENTS PROVING AN ACT OF DOMESTIC VIOLENCE.
DEFENDANT'S PROCEDURAL AND SUBSTANTIVE DUE PROCESS RIGHTS WERE VIOLATED WHEN HE WAS DENIED REPRESENTATION AT THE EX PARTE HEARING AND DENIED THE RIGHT TO APPEAL THE TEMPORARY RESTRAINING ORDER, THEREFORE MAKING THE NJPDVA UNCONSTITUTIONAL UNDER BOTH THE STATE AND FEDERAL CONSTITUTIONS.
A. THE EX PARTE HEARING PROVISION IN THE NJPDVA IS UNCONSTITUTIONAL BECAUSE IT UNREASONABLY AND IRRATIONALLY DENIED THE DEFENDANT THE RIGHT TO APPEAR AND DEFEND THE ALLEGATIONS AT THE HEARING AND THEREFORE VIOLATED HIS RIGHT TO DUE PROCESS UNDER THE LAW.
B. THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHTS OF DUE PROCESS WHEN HE WAS DENIED THE RIGHT TO APPEAL THE INITIAL TRO AS PROVIDED FOR UNDER THE STATUTE.
THE AWARD OF ATTORNEY[']S FEES TO THE PLAINTIFF IS NOT WARRANTED UNDER THE DOMESTIC VIOLENCE STATUTE, THE COURT RULES OR THE PREVAILING CASE LAW.
THE TOTAL LACK OF ENFORCEMENT OF THE PERJURY STATUTES IN DOMESTIC VIOLENCE CASES RENDERS THE PROCEDURE ARBITRARY AND DEVOID OF THE ABILITY TO ADMINISTER JUSTICE.
After considering these contentions in light of the record, the applicable law, and Judge Toto's findings and conclusions, we are satisfied that all of defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A). We add only the following comments.
During the trial, which was conducted on June 15 and June 22, 2007, both parties testified regarding an incident at their home on June 4, 2007, at approximately 6:00 p.m. According to plaintiff, defendant "wouldn't stop. . . . [w]ith the name calling and the accusations," and when she tried to call the police, defendant prevented her from doing so by grabbing her and putting her "in a bear hug." Plaintiff testified: "I went upstairs to get the phone to call the police. He came . . . running from the family room. He grabbed me. We struggled for the phone. He put me in a bear hug, like this." As a result of the bear hug, plaintiff sustained two bruises that she showed to the court when she testified. The court described the bruises as follows: "Indicating on the left arm and left shoulder a bruise about one-inch by about two inches in size, and a second bruise on the left arm, as well, above the elbow, but below the shoulder about the same size." Plaintiff also testified that defendant had physically assaulted her on three other occasions.
When defendant testified, he acknowledged the parties exchanged some "bad language and profanity" on June 4, 2007, and they "were struggling" over a telephone that plaintiff was holding. But defendant denied grabbing plaintiff by her shoulder or her arm, and he testified he did not intend to hurt her. He also testified that he never intentionally struck his wife "for the purpose of striking her."
In his oral decision on June 22, 2007, Judge Toto made detailed and specific findings regarding the conflicting testimony presented by the parties, and he accepted the testimony of plaintiff as the more credible version. The trial judge's findings and credibility assessments are amply supported by the record and are binding upon us. See, e.g., State v. Locurto, 157 N.J. 463, 474 (1999) ("Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record."); Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding."). The record also supports the Family Part judge's determination that defendant's conduct constituted simple assault, N.J.S.A. 2C:12-1(a), an act of domestic violence. See Capell v. Capell, 358 N.J. Super. 107, 111 (App. Div.) (holding that shoving victim into a bathroom counter was sufficient for entry of FRO), certif. denied, 177 N.J. 220 (2003); N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997) ("Not much is required to show bodily injury. For example, the stinging sensation caused by a slap is adequate to support an assault.").
Because we are affirming entry of the final restraining order, we reject defendant's argument that "the award of counsel fees was predicated upon the erroneous entry of the domestic violence final order." In a letter to counsel dated August 9, 2007, Judge Toto fully explained his reasons for awarding counsel fees to plaintiff in the amount of $1900, and we find no abuse of discretion or reason to interfere with Judge Toto's determination.
The orders under review are affirmed.
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