March 26, 2009
SOPHIA SCHWARTZMAN, PLAINTIFF-RESPONDENT,
ALEXANDER SCHWARTZMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-2117-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 3, 2009
Before Judges Skillman and Ashrafi.
This is an appeal from a final domestic violence restraining order entered on May 28, 2008.
The incident upon which this order was based occurred when defendant drove to plaintiff's home on the evening of May 2, 2008 to pick up the parties' fifteen-year-old son, M.S., for defendant's weekend visitation. According to plaintiff, she walked "outside to talk to [defendant] because he has made it a habit to come to the house and park in my driveway late at night and shine the high beams on the windows of my bedroom and my baby's bedroom." She approached the driver's side of the car and complained to defendant about shining his high beam lights into her house in the middle of the night. At this point, defendant started moving the car and said to plaintiff: "I don't need this. I will be down the block waiting for [M.S.]." Defendant then drove the car over the foot of plaintiff, who had been standing very close to the car. Plaintiff fell to the ground and said to defendant, "you ran over my foot." Defendant stopped the car, closed the car windows and sat in the car. About ten minutes later, a friend of plaintiff's came out of the house to help her and called 9-1-1. Shortly thereafter, an ambulance arrived to take her to the hospital. Plaintiff suffered only a minor injury as a result of the incident.
Plaintiff also testified about a number of alleged prior incidents of domestic violence. In an incident that occurred in 1982, defendant pushed her against a wall so hard she suffered a concussion and lost consciousness for a few minutes. In an incident that occurred in 1986, defendant verbally abused, pushed and shoved plaintiff. In 1993, shortly after M.S.'s birth, defendant elbowed plaintiff in the abdomen. As a result, she suffered a severe hemorrhage that required surgery to stop the bleeding.
Defendant's version of the May 2, 2008 incident was significantly different. According to defendant, plaintiff walked up to his car as he was waiting for M.S. and started screaming at him, not about shining his car lights into her house, but rather about statements in recently served papers in their matrimonial litigation, apparently relating to defendant's motion to terminate alimony based on plaintiff's alleged cohabitation with another male. To avoid "any arguments or any screaming match," defendant told plaintiff that he was going "to pull [his car] forward a little bit and wait for [M.S.] to come out." He then put the car into drive and moved forward a short distance. Plaintiff continued screaming at him and then said, "you just ran over my foot." Defendant denied having intentionally driven his car over plaintiff's foot. He also testified that he called the police department immediately after plaintiff told him he had run over her foot.
Defendant denied the prior incidents of domestic violence alleged by plaintiff. He testified that the bleeding problem plaintiff experienced in 1993 after M.S.'s birth was a post partum complication, which required her obstetrician to remove a "retained placenta." Defendant also denied plaintiff's allegation that he had shined his lights into her house.
Based on this evidence, the trial court found that defendant had committed a simple assault, in violation of N.J.S.A. 2C:12-1(a)(1), which is one of the predicate offenses for a finding of "domestic violence" under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. See N.J.S.A. 2C:25-19(a)(2). In making this finding, the court stated:
I find that he did drive over her foot. The fact that it may not have been intentional does not disqualify him from being found guilty of that violation because under the assault statute it could be [an] attempt to cause or purposely, knowingly or recklessly cause bodily injury to another.....
So, I do find that he did at least recklessly cause that injury. He should have been aware that if she is close to the vehicle, his moving the vehicle despite whether or not he said to her "I am going to pull the car up," would have put her in --in danger.
Based solely on its finding that defendant had committed a simple assault upon plaintiff, the court entered a final domestic violence restraining order against defendant. The court made no findings regarding the prior incidents of domestic violence alleged by plaintiff.
It is now firmly established that the commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not "automatically... warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The determination whether such an order should be issued must be made "in light of the previous history of violence between the parties including threats, harassment and physical abuse, and in light of whether immediate danger to person or property is present." Corrente, supra, 281 N.J. Super. at 248; Peranio, supra, 280 N.J. Super. at 54.
This does not mean that a court must find a prior history of domestic violence to enter a domestic violence restraining order. "[O]ne sufficiently egregious action [may] constitute domestic violence under the Act, even with no history of abuse between the parties[.]" Cesare v. Cesare, 154 N.J. 394, 402 (1998). But even though "a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis." Ibid.; see also Kamen v. Egan, 322 N.J. Super. 222, 227-29 (App. Div. 1999).
Thus, the decision whether to issue a final domestic violence restraining order involves a two-step analysis. First, the court must determine whether the defendant committed one of the predicate acts set forth in N.J.S.A. 2C:25-19 against a spouse or other person protected by the Act. Second, the court must determine whether in light of all the circumstances, including the nature of the predicate act, any past history of domestic violence and the entire relationship between the parties, "a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence." Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006); see also Cesare, supra, 154 N.J. at 402-05.
The trial court entered a domestic violence final restraining order based solely on a finding of the predicate act of simple assault, without considering whether such an order is required for the protection of plaintiff in light of the nature of that predicate act or defendant's alleged prior acts of domestic violence. Indeed, the court made no findings as to whether those prior acts occurred or whether, if they occurred, they were probative of plaintiff's need for the protection of a domestic violence restraining order. Therefore, the final domestic violence restraining order entered against defendant must be vacated and the case remanded to the trial court for reconsideration in light of the principles set forth in Corrente, Peranio, Cesare and Silver.
For the guidance of the trial court on the remand, we note that an assault that is committed only "recklessly" would ordinarily seem to reflect a lesser need for protection of the victim than one that is committed "purposefully." Consequently, the determination whether the alleged prior acts of domestic violence were committed and an evaluation of the entire relationship between the parties is indispensable in determining the appropriateness of a final domestic violence restraining order in this case.
Defendant argues that the evidence was insufficient to support the trial court's finding that he acted recklessly in running his car over plaintiff's foot. We recognize that the proofs presented at trial could have supported a finding that this incident was an accident or that defendant's actions were only negligent rather than reckless. However, especially in view of the substantial deference we are required to extend to the fact findings of the trial court in this kind of case, see Cesare, supra, 154 N.J. at 411-13, we conclude that the evidence supports the trial court's finding that defendant acted recklessly. We note in particular that the evidence indicated plaintiff was standing next to defendant's the car less than a foot away in an agitated state when he moved the car forward. Therefore, we sustain the court's finding that defendant committed the predicate act of simple assault.
However, for the reasons previously set forth, we reverse the final domestic violence restraining order and remand the case to the trial court for reconsideration and supplemental findings of fact and conclusions of law in conformity with this opinion. Jurisdiction is not retained.
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