February 17, 2009
SANDRA L. GOLON,*FN1 PLAINTIFF-RESPONDENT,
WILLIAM C. STANKEVITCH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket Nos. FV-16-000702-08 and FV-000706-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2009
Before Judges Skillman and Graves.
Defendant William C. Stankevitch appeals from a final restraining order entered on December 18, 2007, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.
Defendant contends that the trial court erred: (1) in finding that defendant intended to harass plaintiff when he told her on many occasions during the parties' four year relationship, "I'll get you"; and (2) in finding plaintiff was credible when she testified defendant had "raised his fist" because no such claim was made in her complaint. After considering these arguments in light of the record and the applicable law, we affirm.
In her complaint, plaintiff alleged that defendant told her "I'm gonna get you and your [f]ucking mother . . . when I get finished with you . . . you'll be sorry." In addition, plaintiff alleged a prior history of domestic violence consisting of "past incidents of verbal harassment."
The parties were the only witnesses to testify regarding an incident that took place at plaintiff's home on Saturday, September 22, 2007. Plaintiff testified defendant became upset and threatened her and her mother after she told him she was aware of his relationship with another woman. Plaintiff stated she asked defendant to "take his things and leave," and further testified:
Q: And how close was Mr. Stankevitch to you when you were having this discussion?
A: He was close to me. We were --
Q: How close?
A: Close, right next to where the island comes together in the kitchen.
Q: Within three feet.
Q: Okay. What was the next thing that happened after he said I'm not doing . . . any fucking thing wrong or something to that effect?
A: He . . . got very, very upset with me.
Q: In what way, what did he do?
Q: He . . . started screaming that he was going to get me and my fucking mother. Raised his --
THE COURT: I'm sorry, you have to tell me.
THE WITNESS: That he was going to get me and my fucking mother. I will get you, you C -- you cunt.
BY MR. AZAR [PLAINTIFF'S ATTORNEY]:
Q: And what, if anything, was he doing in the course of saying these words to you?
A: He raised his fist.
Q: In what fashion, can you show the [c]court what, if anything, he did?
A: You don't fucking believe me and I'm gonna get you and your fucking mother.
Q: So for the record, Your Honor, indicating that . . . you raised your right fist. Is that right?
A: I believe so.
Q: Clenched it.
A: He was opposite from me, so it may have been --
A: -- whatever.
Q: And how close was he to you when he raised his fist . . . and shook his fist at you?
A: Within three feet.
According to plaintiff, defendant was angry, and "he had a horrible, mean look on his face." Plaintiff testified she was concerned for her safety and her mother's safety, but when she asked defendant "to please go," he packed his things and he left.
On the other hand, defendant testified that when he returned home on September 22, 2007, plaintiff accused him of being with another woman, and he told her "that's it, I'm leaving," and he starting packing his belongings. According to defendant, he left without incident, and he returned the next day to get some additional things. During cross-examination, defendant acknowledged "we had some words," but he also testified that when he started packing, plaintiff "went downstairs by her mother, and I didn't see her."
The trial court's findings and conclusions included the following:
[O]n the 22nd of September, when that statement was made, I'll get you, it was occasioned by Mr. Stankevitch raising his fist, she demonstrated it for me in court, using her right or left hand, I don't care, but raising her fist in a manner.
And here, [defendant] specifically said I'll get you, with a fist up in the air. That I take to be a . . . threatening action to commit an act of domestic violence, by kicking or shoving, accompanied with the threat of I'll get you, done in [coarse] language, I think that Ms. Golon, then, has satisfied [sections a and b of N.J.S.A. 2C:33-4] the harassment statute. . . .
By not just the words I'll get you, but the fact that it was accompanied by the raising of the [fist], which . . . was done here. So I find that an act of domestic violence has taken place, Mr. Stankevitch, and that you must not go near Ms. Golon, her home, or her place . . . of business.
Again, the difference here was the threat being accompanied by what I considered a threat to commit an act [of domestic violence] by raising a fist.
Our scope of review of a trial court's factfinding function is limited. As a general rule, "[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). Moreover, we accord deference to the trial court's findings "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998). "Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (alteration in original) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Our deference is particularly appropriate when we are reviewing findings by Family Part judges, who possess special expertise in these types of matters. Id. at 413.
Based on our review of the record, we are satisfied there was sufficient credible evidence in the record to sustain the court's factual findings and its determination that defendant threatened plaintiff with a purpose to harass her under N.J.S.A. 2C:33-4(b). See State v. Hoffman, 149 N.J. 564, 580 (1997) ("Subsection (b) (the assault and battery or physical contact harassment section) deals with touchings or threats to touch, and it does not require the intended victim to be annoyed or alarmed."). In addition, the court correctly concluded that a final restraining order was "necessary to prevent further abuse." N.J.S.A. 2C:25-29(b).