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Iellimo v. Iellimo

February 18, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-304-08.

Per curiam.



Argued November 18, 2008

Before Judges Parker, Yannotti and LeWinn.

Defendant, Nicholas Iellimo, appeals from the final restraining order (FRO) entered against him on September 24, 2007, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm.

The parties were married in 2001 and have one daughter who was born on October 4, 2002. On July 19, 2007, plaintiff, Marta Iellimo, obtained a domestic violence temporary restraining order (TRO) against defendant claiming that, in the past several months, [defendant] has assaulted her several times by elbowing her in the eye, attempting to push her down stairs and pushed her against a wall. Plaintiff stated that defendant forced her to have sex, threatening that he was going to get her pregnant. Plaintiff stated that defendant tapes her telephone calls and restrains her in their house by hiding the keys to the house. Plaintiff stated that defendant feels that she may be close to reporting incidents to police or leaving him, so [he] threatens that he will keep the child.

Judge Thomas R. Vena conducted a five-day hearing between September 5 and September 24, 2007. The judge heard extensive testimony from both parties, as well as two police officers and two other witnesses.

Plaintiff testified to a series of marital problems commencing in January 2007. For example, plaintiff testified that in late January 2007, defendant elbowed her in the eye. Plaintiff's sister, Magdalena Castro, testified that she observed a "greyish-blue mark" and redness around plaintiff's eye at that time. Plaintiff further testified that in late February or early March, she got into a dispute with defendant during which he attempted to throw a computer at her; the computer ended up hitting her feet. Plaintiff fled but defendant followed her, grabbed her arms and twice attempted to push her down the stairs. When she tried to call the police, defendant disconnected the phone.

On July 10, 2007, following defendant's return from a business trip, plaintiff and defendant had an argument over use of the phone. In response, defendant threw his suitcase on the ground and began kicking and hitting the walls. When plaintiff attempted to call the police, defendant grabbed the phone from her, spit on her and pushed her up against the wall. Plaintiff testified that defendant told her if she left the house she "would never see the child again," and that he would "kick [her] out as a bitch to the streets."

On or about July 11, 2007, defendant called the Division of Youth and Family Services (DYFS) and two caseworkers came to the parties' residence. Defendant had told the caseworkers that he thought that plaintiff was "brainwash[ing]" their daughter. Because plaintiff could not understand the caseworkers,*fn1 she called the police and asked for an interpreter. Officer Julio Lopez responded; he testified that plaintiff informed the DYFS caseworkers that she did not want to cooperate. Officer Lopez was present during plaintiff's entire conversation with the DYFS caseworkers on this occasion.

The DYFS caseworkers returned the following day with a Spanish interpreter. Plaintiff's sister, Castro, was present during this visit. Castro testified that defendant became upset during the visit and one of the caseworkers had to tell him to "calm down."

Plaintiff testified that between July 11 and July 16, 2007, defendant would not permit her to leave the house and even accompanied her to the bathroom. On July 16, 2007, after both parties visited the DYFS office, defendant became upset at plaintiff, removed her shorts and forcibly had sexual intercourse with her. When plaintiff attempted to push defendant off and told him that he was hurting her, defendant covered her mouth with his hand and told her that she was going to become pregnant that night. Defendant told plaintiff that, if she called the police, she would not be permitted to see their child again. Plaintiff testified that her body physically ached and that she had bruises on her legs.

On the following day, both parties visited plaintiff's sister, who stated that defendant "was constantly holding [plaintiff] by the hand" and following her around, and that plaintiff appeared "frightened and nervous." At one point, the two women went to the bathroom and Castro observed that plaintiff was "shaking and her eyes were ...

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