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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...