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Herko v. Muzyka

September 24, 2008

ROBERT HERKO, PLAINTIFF-RESPONDENT,
v.
LILLIAN MUZYKA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-000236-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 9, 2008

Before Judges Wefing and Yannotti.

Defendant Lillian Muzyka appeals from a final restraining order entered by Judge Ann R. Bartlett on January 10, 2008, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. For the reasons that follow, we affirm.

On December 17, 2007, plaintiff Robert Herko filed a domestic violence complaint, alleging that on November 7, 2007, defendant came to his home, screamed profanities, and struck him in the face. He also alleged that on November 29, 2007, defendant stole plaintiff's work equipment from a storage locker. Plaintiff claimed that defendant had committed an assault, burglary, criminal trespass, and harassment. Plaintiff also claimed that, from 1998-2003, defendant had threatened to cut off his genitals. The judge granted plaintiff's motion for a temporary restraining order and set the matter down for a hearing on plaintiff's application for a final restraining order.

At the hearing, which took place on January 10, 2008, evidence was presented which established that the parties were married on July 17, 1992, and had lived apart since 2003. Plaintiff is a self-employed commercial and fine art photographer. Defendant is a family practice physician. In November 2007, plaintiff was residing with his girlfriend in Whitehouse Station, New Jersey. At the time, defendant was residing in Yuma, Arizona.

Plaintiff testified that on November 7, 2007, at approximately 6:00 a.m., defendant arrived at his residence. Plaintiff was asleep. Plaintiff's girlfriend, Rebecca Allen, answered the door, but she did not admit defendant into the home. Ms. Allen informed plaintiff that his wife was at the door. Plaintiff said that he got up, dressed, and went outside of the house to speak to defendant. Plaintiff told defendant that he had nothing to say to her and asked her to leave.

Defendant refused to go and, when plaintiff turned to go inside, defendant followed him into the house. Plaintiff stated that defendant was "extremely angry" and she began to curse at him. Plaintiff told her to leave the house. Ms. Allen apparently had retreated upstairs and hid in the upstairs bedroom. Defendant screamed at her to come out and called her a "princess," "whore," and a "bitch." Ms. Allen told defendant to leave.

Plaintiff testified that, at that point, defendant called plaintiff a "son of a bitch" and struck him on the right side of his face. Plaintiff said that the blow caused him pain. In addition, defendant told plaintiff that she was going to change the locks on the house in Arizona and "take care of" plaintiff's dogs. Plaintiff said that defendant had threatened his dogs in the past.

Plaintiff did not call the police that day. He testified that Ms. Allen told him that, if the matter were reported to the police, it would only cause more trouble. Plaintiff stated that, later in the day, defendant went to his studio in Manhattan, where she questioned "members" of the studio about plaintiff's work, clients, associates, and his assistants.

On December 10, 2007, plaintiff traveled to Arizona to retrieve some photographic equipment he had stored there. On December 11, 2007, plaintiff went to the storage facility to obtain his equipment, but he found that all of his lockers were empty. An investigation revealed that defendant had previously taken the equipment. Defendant filed an action for divorce on December 11th.

Plaintiff testified that he was concerned for his safety because of certain threats that defendant had made in the past. Plaintiff said that, several times between 1998 and 2003, defendant told him that if she ever caught him with another woman, she would cut off his genital organ ...


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