November 28, 2008
ANNEMARIE OPPICI, PLAINTIFF-RESPONDENT,
MICHAEL SYLVESTER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-0305-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 6, 2008
Before Judges Stern and Newman.
Defendant Michael Sylvester appeals from a final restraining order issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33 ("Act"). We now affirm.
The parties were in a dating relationship for more than a year from early February 2007 until February 27, 2008, when plaintiff, Annemarie Oppici, terminated the relationship by an afternoon e-mail. Plaintiff secured a temporary restraining order on February 29, 2008.
Their relationship was marked by defendant's temper tantrums and his jealousy that plaintiff might be seeing other men. The triggering incident occurred between 8:00 A.M. and 9:00 A.M. on February 26, 2008, when defendant lifted plaintiff off the floor with his arms around her back, pinned her arms to her sides and bounced her five times. In the process, she struck her jaw on defendant's shoulder, causing swelling, pain and affecting her ability to chew food. Defendant claimed that he was hugging her because she was emotionally out of control. Shortly after the incident, as she was leaving the house, he punched the wall.
Plaintiff testified to prior incidents of defendant's temper and verbal abuse toward her. In December 2007 while attending a seminar in Boston for "Marriage and Success," she left the restaurant after a quarrel. Defendant followed her into the cab. When he refused to leave, he verbally abused her by calling her a "cunt" and just a "piece of ass." She was so upset she retaliated by punching him in the face several times. He threatened to punch her teeth out if he experienced an incident similar to what transpired in Boston.
On Presidents' Day in February 2008, defendant hit plaintiff with a bag of laundry she was doing and then threw the individual pieces of laundry at her.
Plaintiff testified that she was in fear of defendant. She was in a state of shock after the February 26, 2008, incident. She realized that she needed to be protected and sought the court's assistance on February 29, 2008.
Judge Frederick Kumpf determined that the February 26, 2008, incident constituted an assault under N.J.S.A. 2C:12-1a, and concluded that the actions of defendant recklessly caused bodily injury. Judge Kumpf also indicated that the prior incidents demonstrated a course of conduct which supported plaintiff's fear of defendant, warranting the issuance of a final restraining order.
On appeal, defendant argues that the court's decision was not supported by substantial credible evidence, and that plaintiff's beliefs as to danger posed by defendant were subjective, which was inconsistent with the purpose of the Act. We disagree and affirm substantially for the reasons expressed by Judge Kumpf in his oral decision of March 6, 2008, which was well supported by the credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Judge Kumpf properly factored in the history of abuse and threats by defendant as part of plaintiff's individual circumstances in making the determination that plaintiff was in need of protection. Cesare v. Cesare, 154 N.J. 394, 403 (1998).
We add only the following brief comments. To the extent that defendant suggests in his brief that the parties' dating relationship was not covered under the Act, he is mistaken. The Act expressly includes as a "'victim of domestic violence'" "any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship." N.J.S.A. 2C:25-19d. Indeed, their relationship for over a year was capped by a doctor's appointment in which defendant accompanied plaintiff to see if she was pregnant on the afternoon of February 26, 2008.
In a reply brief, defendant raises for the first time that the Act is unconstitutional under the Fourteenth Amendment because it employs a preponderance of evidence standard to prove acts of domestic violence. Defendant is precluded from raising a new argument in a reply brief that was not raised initially.
R. 2:6-5. We, therefore, need not address the issue.*fn1 See Roe v. Roe, 253 N.J. Super. 418, 428 (App. Div. 1992) (holding that the preponderance of the evidence standard better serves the purposes of the Act in protecting victims of domestic violence in this civil action. "Since criminal sanctions are not imposed, no constitutional problem is presented by the preponderance of the evidence standard."). We find no basis to re-examine that holding in this case.