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Woolf v. Demarco

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 12, 2008

JENNIFER M. WOOLF, PLAINTIFF-RESPONDENT
v.
SUSAN L. DEMARCO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FV-21-318-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 7, 2008

Before Judges Winkelstein and Chambers.

Defendant Susan DeMarco appeals from a final domestic violence restraining order dated November 15, 2007, prohibiting her from committing future acts of domestic violence against plaintiff Jennifer Woolf, and granting plaintiff additional relief. On appeal, defendant claims that the trial court erred in finding that plaintiff was more credible than she was and by not granting her adjournment request. We reject these arguments and affirm.

Plaintiff is defendant's daughter. Since the summer of 2007, she and her husband and four children had been living with defendant at defendant's home in Phillipsburg. On October 22, 2007, defendant's mortgage company informed her that she had fallen behind in her mortgage payments. It was defendant's understanding that plaintiff had been paying the mortgage, and she blamed plaintiff for her falling into arrears. Defendant also believed that plaintiff had spent "thousands of dollars" of defendant's money without her consent.

According to plaintiff, that evening, defendant, who suffers from a psychological disorder that requires daily medication, and whose husband, plaintiff's father, died the previous December, approached plaintiff and derided her care of her father before he died. Plaintiff, who assisted defendant in taking her medication, believed that defendant failed to take her medication that day. Plaintiff testified as follows:

And [defendant] got up and she started slamming cabinets, hit the doors on the cabinets and the wall. And then she got a hold of the medicine cabinet and ripped it off the hinges. It fell on the counter and then hit the floor. By that time I had moved around the kitchen table to where you go out to the living room, and she got more angry, picked up the cabinet door and threw it toward my right.

Q: How close did the . . . cabinet door that she threw at you, explain to the Judge where the cabinet was thrown at you, what part of your body.

A: When it went past me, if I didn't move I would have gotten hit with it.

Q: In what part of your body? . . .

A: In the head part.

Plaintiff further testified that earlier in October, defendant had become angry at plaintiff's son, J.O., who was bipolar. She grabbed him by the hair, picked him up off of a chair, placed him on the kitchen floor on his knees, and grabbed a cooking utensil and "smacked him with that," while calling him names. Plaintiff also claimed that on another occasion that month, defendant struck another of her sons with a vacuum cleaner attachment. Susan Markle, a witness offered by plaintiff, corroborated a number of plaintiff's allegations. As a result of the October 22 incident, defendant told plaintiff to leave the home. When plaintiff returned two days later, after receiving a temporary restraining order that allowed her back in the home, much of her personal property was missing. Plaintiff also testified that after she left, defendant contacted the water company and had the water to the home shut off.

Defendant denied plaintiff's allegations. She acknowledged she was upset on October 22 when she learned that her mortgage had fallen into arrears, but she denied taking the violent action that plaintiff claimed she took. She did not deny, however, slamming a kitchen cabinet door. She also denied asking the water company to shut off the water to the residence.

At the conclusion of the trial, the court granted plaintiff a restraining order barring defendant from the residence and from having any contact with plaintiff's children. In rendering its decision, the court made the following pertinent findings:

Based on plaintiff's testimony, I believe that on October 22nd there was an argument between the plaintiff and the defendant. . . .

Defendant conceded that she slammed . . . cabinet doors. She did not testify that she ripped a door off the cabinet. However, Susan Markle did. She testified that she spoke with the defendant that day and that defendant admitted that she had . . . ripped the cabinet door off the cabinet. The pictures, P-1, P-2, certainly reveal a cabinet door that has been ripped from its hinges. It didn't just fall off [b]ecause of some malfunction in the way . . . it's very clearly a violent act that ripped the . . . hinges off. The . . . formica is torn off. The underlying particle board it looks like is ripped, and the bottom corner of the . . . cabinet door . . . where the connection to the hinge would be is . . . ripped off.

What happened was . . . as the plaintiff testified and as I find occurred, . . . after the cabinet door fell to the floor, the defendant picked it up and threw it at the . . . [p]laintiff. And only by virtue of her moving did she not get hit. It would have hit her in the head if she had not moved.

In this case, I find that the defendant attempted to cause bodily injury to another, that being the plaintiff. . . .

. . . I believe that based on the plaintiff's testimony as corroborated by Susan Markle that on the earlier . . . dates there . . . were events that took place in the household that caused plaintiff to be upset about the . . . abuse of the children by the defendant, so much so that Susan Markle advised the plaintiff that she should . . . move out of the house with the children.

Now those conversations took place before October 22nd. They were not a result of the event that took place that day. I believe that plaintiff's mind set with those events having occurred was that when this event occurred, she believed that her safety or health or life was in danger and needed protection. And that is what I have to . . . find. I have to find whether not only did an act take place, but whether a final restraining order is necessary to protect the life, safety or health of the plaintiff. And based on not only the event of that day but what she testified occurred previously and what the witness had been communicated to on earlier occasions, she had the right to feel that her life, safety or health is . . . endangered. And that together with my finding that the event took place and that the cabinet door was thrown allows me to make the finding . . . that a final restraining [order] is necessary.

After defendant filed her notice of appeal, the court supplemented its decision with a January 15, 2008 letter. R. 2:5-6(c). In that letter, the court directly addressed defendant's arguments on appeal: that the court should have granted an adjournment to allow defendant to present evidence concerning who asked the water company to shut off the water; that defendant should have been given an opportunity to call an investigator for the Division of Youth and Family Services as a rebuttal witness; and that the court allowed plaintiff to testify regarding defendant's alleged abuse of the minor children, even though those allegations were not raised in plaintiff's domestic violence complaint. The court stated as follows:

After the conclusion of all testimony, defendant's counsel asked for an adjournment, so that he could call rebuttal witnesses to attack the plaintiff's credibility. The proposed rebuttal witnesses were a caseworker from the Division of Youth and Family Services, and a representative of the water company. During the cross examination of plaintiff, defendant's counsel attempted to question her as to a D.Y.F.S. investigation, and represented to the Court that he had spoken to the caseworker and had asked the caseworker to communicate with the Court (which did not occur). Defendant's counsel certainly could have subpoenaed the caseworker, but did not do so.

With respect to the water company, plaintiff testified, during her testimony, that [the] day after the incident of domestic violence and after she obtained her Temporary Restraining Order, plaintiff returned to the residence she shared with her mother, the defendant, and found that the water was shut off. She indicated that the water had been shut off at the request of the defendant. When testifying, defendant provided a notice that she claimed was attached to the door indicating that the water had been shut off due to lack of payment. Defendant's counsel suggested that he could subpoena a representative of the water company who would support his client's version of the story. In any case, the reason for the water shut off was irrelevant to the finding of domestic violence by the defendant days earlier. Again, as defendant came to Court prepared with the document that she claimed was the shut off notice due to lack of payment, a water company representative could have been subpoenaed as well.

A request for an adjournment at the end of all testimony to obtain rebuttal witnesses with respect to issues that were not directly relevant to the finding of domestic violence on the day in question was inappropriate, in my opinion.

Finally, defendant's Amended Appeal Case Information Statement indicates that I allowed plaintiff to testify regarding the minor children which was not set forth in plaintiff's domestic violence complaint. I do not believe that occurred. Moreover, there was no request made by defendant's counsel for an adjournment to deal with alleged testimony that was not contained in the Complaint. Similarly, I do not believe there was ever any request that I conduct an in camera interview with the children.

A trial judge considering domestic violence charges has a two-fold task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Ibid. Second, "upon a finding of the commission of a predicate act of domestic violence, . . . the court [must decide whether to] enter a restraining order that provides protection for the victim." Id. at 126 (footnote omitted).

Here, the trial judge found that defendant threw a cabinet door at plaintiff, and that act constituted simple assault. A person commits an act of simple assault when she: "attempts to cause or purposely, knowingly and recklessly causes bodily injury to another." N.J.S.A. 2C:12-1a(1). The evidence supports the trial court's conclusion. The judge believed plaintiff, whose testimony was corroborated by Markle, when she testified that defendant picked up the cabinet door and threw it at plaintiff, and the judge found that only by virtue of plaintiff moving her head did she avoid being struck by the door. Although defendant claims that we should reject the trial court's finding that plaintiff's testimony was credible and defendant's was not, it is for the trial court, not the appellate court, to judge credibility. State v. Locurto, 157 N.J. 463, 470 (1999). On appeal, we defer to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). We find no basis in the record to disturb the trial judge's credibility findings.

We also reject defendant's claim that the court abused its discretion by denying defendant's application for an adjournment. The decision to grant or deny a request for an adjournment is discretionary, Jimenez v. Baglieri, 295 N.J. Super. 162, 165 (App. Div. 1996), rev'd on other grounds, 152 N.J. 337 (1998), to which we accord substantial deference on appellate review. State v. Davis, 390 N.J. Super. 573, 591 (App. Div.), certif. denied, 192 N.J. 599 (2007). Here, for the reasons enunciated by the court in the January 15, 2008 letter, we find no abuse of discretion.

Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(E). We affirm substantially for the reasons expressed by the trial judge in her oral and written decisions.

20081112

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