On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-724-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Lyons and Waugh.
Defendant Michael Rego appeals a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The entry of the FRO was based on the finding of the trial judge that defendant committed the predicate act of assault on plaintiff Jessica Kvarta. We reverse and remand for a new trial.
Kvarta and Rego were involved in an almost two-year, "[o]n and off," dating relationship that ended in March 2006. The relationship between Kvarta and Rego produced one child, a son, born October 16, 2006. Shortly after the parties separated, Kvarta filed a domestic violence complaint against Rego, which was dismissed. A second domestic violence complaint was filed by Kvarta in April 2007, but was voluntarily dismissed. This appeal arises from the filing of a third domestic violence complaint in January 2008.
At some point, an order was the entered by the Family Part in Somerset County requiring that exchanges for parenting time take place inside the Princeton Township Police Station.*fn1 In December 2007, Kvarta agreed to provide Rego with additional holiday parenting time. The parties were to meet at the police station so that Rego could take the child for a few hours on the evening of December 25, 2007. When Kvarta arrived at the police station, Rego was already in the parking lot. Instead of going into the police station, however, he approached Kvarta's vehicle. Kvarta testified that she told Rego she would meet him inside the police station and then went to remove their child from his car seat. Rego testified that the child called out to him, so he reached for his son.
Kvarta testified that in reaching for the child, Rego grabbed her right hand and, squeezing it, caused her "excruciating pain." Rego testified that he did not touch Kvarta, but that when he picked up his son, Kvarta started to pull back on the child. Rego stated that he "did not want to tug on [his] son in the parking lot," so he let go of the child. Both parties proceeded into the police station where Rego "waved to the camera," called Kvarta a "big baby," and left with the child. Rego returned the child to Kvarta that night, at the scheduled time, without further incident.
Kvarta did not immediately report the parking lot incident to the police, but left the police station and drove to her mother's house. She returned to the police station later that evening and reported the incident. However, she did not request a temporary restraining order (TRO) at that time.
Kvarta spoke with Officer Jennifer Lackovara, who testified at the FRO hearing. Lackovara testified to several discrepancies in Kvarta's recounting of the parking lot incident. She stated that Kvarta equivocated on whether the touching between herself and Rego was intentional or unintentional. For example, the following exchange took place between Rego's counsel and Lackovara:
Q: Okay. Did she tell you that Mr. Rego informed her that he would hold the child and reached for him while he was in Ms. Kvarta's arms?
Q: Okay. And did she tell you that she did not expect Mr. Rego to reach for the child which startled her?
Lackovara had Kvarta create a "written statement due to the discrepancies in her reporting." In her report, Lackovara noted that she saw no visible injuries or swelling to Kvarta's hand. Kvarta testified that she went to the hospital on December 26 and 28, 2006, to seek medical attention for the injuries to her hand. Kvarta was prescribed Percocet and given an ace bandage to reduce swelling. She was told to put an ice pack on the hand and keep it elevated for a few days.
On December 27, 2007, Kvarta filed a domestic violence complaint in Princeton Township and sought a TRO. However, Kvarta's request for a TRO was denied by the Princeton Township municipal court judge. The complaint was apparently dismissed.
On January 2, 2008, Kvarta filed another domestic violence complaint at the Mercer County courthouse and again applied for a TRO. A Superior Court ...