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Tarvydas v. Castimore

June 26, 2008

LINDA TARVYDAS, PLAINTIFF-APPELLANT,
v.
JAMES CASTIMORE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-594-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 7, 2008

Before Judges Messano and Newman.

Plaintiff Linda Tarvydas appeals from the June 28, 2007, order that dismissed her domestic violence complaint against defendant James Castimore, and vacated the previously-entered temporary restraining order (TRO). She contends the trial judge "erred as a matter of law," by concluding that "the conduct complained of did not constitute an assault . . . or an act of domestic violence requiring the issuance of a final restraining order (FRO)." We have considered this argument in light of the trial record and applicable legal standards. We reverse and remand for further proceedings consistent with this opinion.

I.

On June 14, 2007, plaintiff filed a complaint against defendant pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 through -35. She alleged that defendant had committed a terroristic threat, N.J.S.A. 2C:12-3, by "stating 'I will fucking kill you,'" and had "grabbed [her] left arm attempting to pull [her] from the room." The municipal court judge issued a TRO. On June 19, 2007, plaintiff sought 1) to amend the complaint by adding "assault" as one of the predicate acts of domestic violence, N.J.S.A. 2C:25-19(a); and 2) to supplement the "prior history" portion of the complaint with four, single-spaced, typed pages of details regarding her relationship with defendant from May 2006 through the present. The Family Part judge issued an amended complaint that continued the temporary restraints already in place and set June 21, 2007, as the date for the hearing on the FRO.

After an agreed upon continuance, the parties appeared in the Family Part for trial on June 28, 2007. Plaintiff testified that she and defendant had been engaged for four years, "liv[ing] back and forth" between "Tonopah, Nevada and Sparta." They arrived in Sparta on the morning of June 14, and were staying at a home owned by defendant and his father, Dean Castimore.*fn1

Plaintiff testified that later that evening, at approximately 9:55 p.m., she was in the house when defendant returned home and was preparing himself a sandwich. After some tense conversation, plaintiff claimed that defendant made a "comment about a phone call he had received from [her] brother," "something about money owed," and "started yelling and screaming 'I'm F-ing done. I'm done.'" When she tried to approach him, defendant pounded his fist on the table and told her "get the fuck away from me before I fucking kill you."

Plaintiff claimed defendant was intoxicated, and as she tried to leave the room, defendant "grabbed [her] left arm," and said, "I'll help you leave the fuck now. Get the fuck out of here. You have to go. You get out of this house." Plaintiff broke away and "ran into Dean's room," asking him to calm his son down. Plaintiff testified that she, defendant, and Dean all went into the kitchen where defendant asked his father, "Do we throw her out now, or do we call the cops?" Plaintiff objected and told both of them, "I'm not going."

Before leaving the house for the night, defendant told plaintiff that she had to leave by the next day when he "g[o]t home from work." Plaintiff then called the police who responded and took her complaint. Plaintiff testified that she had a small bruise on her left arm as a result of the altercation with defendant, claimed that she feared for her safety, and that the relationship with defendant was "over."*fn2 The next day, despite obtaining the TRO that permitted her to remain at the home, plaintiff "packed [her] things" and left for her brother's home in "Hopatcong."

Plaintiff described a prior incident with defendant in August 2006, in Nevada, at a truck stop and deli the two owned.*fn3

At that time, she claimed defendant accused her of having an affair, "grabbed [her] arm," and she "fell up against the wall." Defendant threatened to kill her, and called her several derogatory names before she "left the property," and obtained a restraining order. Over the objection of defense counsel, the trial judge admitted into evidence the Nevada "Order for Protection," ...


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