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Wengert v. Mooney

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 25, 2008

LISA A. WENGERT, PLAINTIFF-RESPONDENT,
v.
JAMES L. MOONEY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FV-20-000909-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2008

Before Judges Winkelstein and Fuentes.

Defendant, James L. Mooney, appeals from a final restraining order issued by the Family Part pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. On appeal, defendant claims the Family Part erred by rendering findings of fact without considering his defense of justification. He also asserts that plaintiff's testimony was not credible. We affirm and conclude that these arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

Defendant and plaintiff have had a dating relationship for over twenty years. Approximately ten years ago, defendant pushed plaintiff against the wall, and she broke her foot. He claims he pushed her in self-defense when she scratched his face.

In the incident that led to the domestic violence restraining order at issue here, defendant pushed plaintiff; she fell backwards against the wall, struck her head and broke her wrist. Plaintiff required surgery that included the insertion of a permanent plate and orthopedic screws in plaintiff's arm and wrist. Defendant admitted that, after plaintiff shoved him, he intentionally pushed her because he wanted some space between them, and he did not know how she was going to react.

The trial judge found that defendant committed a simple assault upon plaintiff. He found that defendant had committed an act of domestic violence, assault, and that a restraining order was necessary for plaintiff's safety.

Defendant's argument that plaintiff was not credible has no basis in the record. Indeed, defendant admitted to pushing plaintiff.

As to defendant's argument that he was justified in pushing plaintiff, that argument is also without merit as the use of force for protection of one's person is only justifiable when the actor "reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4a. The proofs at trial fell far short of establishing a reasonable belief on defendant's part that the use of force was immediately necessary to protect himself from plaintiff.

Findings by trial courts are binding on appeal so long as they are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Here, the record fully supports the trial judge's findings that defendant committed an act of domestic violence.

Affirmed.

20081125

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