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Piotti v. Piotti

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 8, 2008

GEORGINE PIOTTI, PLAINTIFF-RESPONDENT,
v.
E. SCOTT PIOTTI, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-000621-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2008

Before Judges Graves and Grall.

Defendant E. Scott Piotti appeals from a final restraining order (FRO) entered on November 14, 2007, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. When the temporary restraining order was issued on September 7, 2007, the parties were going through a divorce. Their divorce was finalized on October 10, 2007. The trial court found that defendant committed a simple assault, N.J.S.A. 2C:12-1(a)(1), and it granted plaintiff's request for an FRO.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL JUDGE ERRED IN EXCLUDING EVIDENCE INTENDED TO DEMONSTRATE IMPROPER MOTIVE BY THE CLAIMANT.

POINT II

THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE INTENDED TO DEMONSTRATE THAT THE RELIEF SOUGHT WOULD HAVE AN ADVERSE EFFECT ON THE CHILD BY PRECLUDING USE OF A PARENTING COORDINATOR.

POINT III

THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE INTENDED TO DEMONSTRATE THAT THE RELIEF SOUGHT WAS NOT NECESSARY AS PLAINTIFF DID NOT HAVE NEED FOR PROTECTION OF HERSELF.

POINT IV

THE TRIAL COURT ERRED IN FAILING TO MAKE PARTICULAR FINDINGS OF CREDIBILITY AND DEMEANOR OF THE PLAINTIFF WHERE THE EVIDENCE REQUIRED SUCH FINDINGS, AND THE TRIAL COURT ERRED IN SUMMARILY MAKING ADVERSE FINDINGS ABOUT DEFENDANT'S DEMEANOR WITHOUT EXPLANATION OR REFERENCE TO EVIDENCE TO SUPPORT SUCH FINDINGS.

After reviewing the record and the applicable law, we reject these arguments and affirm.

On September 7, 2007, at approximately 5:45 p.m., Patrolman Kenneth Bauer responded to a "domestic dispute" at the marital home. According to Bauer, defendant initially stated the parties had gotten into an argument over an upcoming doctor's appointment for their five-year-old daughter, and "he swatted at the back of her hair, striking her hair, not the back of her head." However, after Bauer spoke with plaintiff and defendant was read his Miranda rights, he told Bauer he just "tapped Ms. Piotti in the back of the head twice, in a playful manner."

At trial, defendant testified he put his hand on plaintiff's shoulder in an effort to "console her," but during cross-examination, he testified as follows:

Q: Let's talk about your story. Your story today --

A: Yes.

Q: -- is that you tapped her on the shoulder, and then you tapped her on the head.

A: Correct.

Q: How many times did you tap her on the head?

A: It was one of those things, hello, hello.

Q: Hello, hello. Okay. And you just demonstrated hello, hello.

A: Right.

Q: Did you say, hello, hello to her as you made the tap?

A: When she wasn't answering any of my questions regarding my daughter and my daughter's doctor's appointment.

Q: So, you weren't consoling her, you were questioning her?

A: At that particular point, yes, I was questioning her.

Q: Hello, hello.

A: Correct. Are you going to answer me?

Q: Frustrated?

A: Of course, frustrated. . . .

Plaintiff testified the incident occurred while defendant was at the marital home to visit their daughter. According to plaintiff, defendant struck her after he began talking about "things that went on in court," and she told him she didn't "want to talk about it anymore." Plaintiff testified she was struck in the back of the head as she was fixing dinner for their daughter:

I'm still at the counter, fixing her dinner, and I was struck in the back of the head. My head [went] down, and then, when it was close to the counter, he hit it down again. And then, I called 9-1-1. He ran over to the table, picked up [our daughter], and he said, look, Mommy's calling the cops on Daddy, they're going to take Daddy to jail. He had her by the living room window, looking outside to see if they were coming.

He took her down by the front door, and he said, listen, do you hear the sirens? They're coming to take Daddy to jail.

And three police officers pulled up in the cul-de-sac, and he ran out the door, holding her.

Q: Okay. Let me bring you back to just prior to this strike. Do you know which hand Mr. Piotti struck you with?

A: I don't because he came up from behind me.

Q: Can you demonstrate for the [c]court the [approximate] force with which he struck you?

A: Saying my head was here, he hit my head, it jerked down, and then, he hit it down again.

Q: Were you in any pain?

A: Yes. I had a headache.

Plaintiff also testified to other acts of domestic violence during the marriage, and she stated she was afraid of defendant because he had become increasingly violent: "At first . . . it was shoving, then, it got to be sexually aggressive, then it got to kicking, and now it's been striking me in the head."

"Domestic violence is a term of art which defines a pattern of abusive and controlling behavior injurious to its victims." Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995).

Here, the trial court accepted plaintiff's testimony, and it concluded that the predicate act of assault----an act of violence ----had occurred. The court also found there was a pattern of abuse, and that defendant thought he could "manipulate the plaintiff at his will."

The trial court's findings and credibility assessments are amply supported by the record and are binding upon us. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord due deference to a trial court's credibility findings and its feel of the case because it has heard the testimony and observed the witnesses. Pascale v. Pascale, 113 N.J. 20, 33 (1988). Such deference is especially appropriate when we review family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

We are also convinced that the Family Part judge correctly applied well-settled legal principles. Under N.J.S.A. 2C:12- 1(a)(1), a person is guilty of simple assault if he "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." Bodily injury is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a). "Not much is required to show bodily injury. For example, the stinging sensation caused by a slap is adequate to support an assault." N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997). In addition, the court did not err in concluding that an FRO is "necessary to prevent further abuse." N.J.S.A. 2C:25-29(b).

Affirmed.

20081008

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