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Balilaj v. Karagjozi

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 13, 2009

ARJAN BALILAJ, PLAINTIFF-RESPONDENT,
v.
MARSIDA KARAGJOZI, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1708-08 and FV-13-1722-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 16, 2009

Before Judges Carchman and Sabatino.

Defendant Marsida Karagjozi appeals from a Final Domestic Violence Restraining Order (FRO) entered against her and on behalf of plaintiff Arjan Balilaj, defendant's husband.*fn1 Among other provisions, the order grants temporary custody of the parties' two minor children to plaintiff and grants limited and supervised parenting time to defendant. In considering plaintiff's complaint and defendant's cross-complaint for domestic violence, the trial judge concluded that both children, who had social and academic problems, improved after plaintiff received custody of them. He found defendant not credible and dismissed her complaint against plaintiff.

On appeal, defendant asserts that the FRO should be vacated because: 1) the trial judge did not make any findings of fact or conclusions of law in denying her FRO; 2) the trial judge did not find that plaintiff required protection from imminent danger; and 3) the trial judge did not consider all the statutory factors necessary to grant plaintiff custody of the children.

While we recognize that the trial judge's findings were inconsistent with some of the chronology presented by the parties, we are also satisfied that the evidence supported the trial judge's ultimate conclusion that defendant committed acts of domestic violence against plaintiff. We further conclude that the judge did not err in awarding temporary custody to plaintiff. We now affirm.*fn2

This appeal arises out of alleged incidents of domestic abuse between the parties which occurred on April 9, 2008. At that time, plaintiff and defendant were married and residing in Middletown. The parties are the parents of two children, a son, born on April 22, 2000, and a daughter, born on April 12, 2004. At the time of the incidents, the family resided at the home of Victor Casella, where plaintiff is Mr. Casella's caretaker. Plaintiff filed an application for a Temporary Restraining Order (TRO) on April 9, 2008, alleging a cause of action for harassment and assault which occurred on that same date. The Domestic Violence Hearing Officer (DVHO) granted plaintiff a TRO and temporary custody of the children.*fn3 N.J.S.A. 2C:25-28; R. 5:7A. Defendant also was served with plaintiff's complaint and TRO on April 9, 2008. The next day, on April 10, 2008, plaintiff received a letter from defendant's attorney alleging that plaintiff had filed the TRO to "boot[] [defendant] out of the home[,]" which was a subject of dispute in their divorce proceedings; that a "minor dust-up" had occurred, which is not domestic violence; and demanding that he withdraw his complaint. Defendant filed a cross-complaint seeking a TRO on April 11, 2008, which was granted on that date, alleging assault and harassment which occurred on April 9, 2009.*fn4 Both parties' complaint alleged a history of domestic abuse.

Plaintiff asserts that during the morning of April 9, defendant "started attacking him," punching him in the face and pushing him. Plaintiff left the room and went to the first floor to prepare their son for school. As plaintiff was preparing to leave the home with their son, defendant grabbed their daughter and indicated that she, too, was going to the school. No incident took place in the car.

After dropping their son off, the parties returned to their home where another dispute ensued, this time about some car keys. This incident formed the basis of plaintiff's complaint and TRO. At trial, plaintiff submitted a videotape of the incident. He claims that he purchased the video camera because of prior acts of domestic violence that defendant had denied.

The videotape, combined with the translated transcript, show defendant repeatedly striking plaintiff on the chest while yelling, cursing and asking for the keys. Throughout the tape, one can see their daughter moving in and out of the room watching the incident. Plaintiff did not fight back but told defendant to stay calm or remain silent. Defendant attempted to take the keys out of his hand, and the key chain cut his finger, causing bleeding. Defendant also referred to plaintiff with names such as a "shitty dog," "prostitute," "pig," "monster," "a waste." At one point, their daughter stated, "Mommy stop. Mommy stop." She then left the family room and told Mr. Casella, "[m]ommy hurt him" and "she went up. Beat it up, beat it up." According to the transcript:

MR. CASELLA: [your daughter] told me you're hitting [plaintiff].

DEFENDANT: (in English) Hee hee hee, no, no she was just telling you, you understand very good. He was hitting me.

MR. CASELLA: She told me that you were hitting [plaintiff].

DEFENDANT: [Daughter], did daddy beat mommy up? Huh?

DAUGHTER: ...

DEFENDANT: Sweetie, did he beat her up? Yes.

MR. CASELLA: You better watch!

DAUGHTER: Mom

DEFENDANT: Yes, [their daughter].

DAUGHTER: Mom, why did you beat daddy? (in English) Not good!

Following the incident, on the same date, plaintiff sought medical treatment from the Riverview Medical Center where he reported bruising, scratches, ringing in his ears and feeling dizziness. The hospital's discharge sheet states that plaintiff was diagnosed with: "Contusion Face, Trunk Abrasion, Contusion left hand." After plaintiff was discharged, he sought the TRO. The TRO contains a handwritten note by the DVHO which states, "visible swelling above [plaintiff's] left eye."

Defendant's version of the morning of April 9, is markedly different. According to defendant, on that morning, defendant was preparing their son for school when a dispute arose about which party would take the child to school. Plaintiff came downstairs, pushed their son and attempted to kick the child's bag from defendant's hand. When their son stated that he wanted defendant to take him to school, plaintiff began pulling defendant's "hair out of [her] head" and punched her in the head "very hard." Defendant was "very upset" and crying and suffered "pain" and "[her] hair was out of [her] head." The noise woke up their daughter, so defendant took their daughter in her arms and the entire family took their son to school. Defendant went in the car to "comfort everyone" because their son was "upset [and] very scared and he didn't want to go [to school]." Plaintiff drove and defendant was in the back seat, still crying, with their daughter. They dropped their son off at school and returned home. Nothing happened in the car during the ride to and from school.

While at home, a dispute arose regarding car keys. Defendant stated that plaintiff had taken the car keys for both of their vehicles. When she asked plaintiff for the car keys, he refused to give them to her so she reached over to grab them, and there was a struggle over the keys. Defendant denied ever having punched or pulled plaintiff's hair. She denied hitting plaintiff, stating that she was "pulling him" because she was upset. Defendant stated that plaintiff was "only playing . . .

[a]nd he had played in the emergency room, too, and he had done everything such a big deal." By saying plaintiff was "playing" defendant apparently suggested that plaintiff staged the incident to gain a tactical advantage in their pending divorce proceedings.

When asked about the DVHO's notation on the TRO stating that plaintiff had a visible swelling above his left eye, defendant claimed that it was "all lies" and that she thought "[plaintiff] had beat himself because he had done the same before[,]" and that she only pushed him, which would not result in bruising or swelling. Defendant also stated that she had some suspicion that she was being taped because plaintiff acted odd since he would normally "yell," "be angry" and would not speak in English.

Defendant stated that she remembered three specific prior incidents of domestic violence and both parties significantly dispute the events giving rise to those prior incidents.

The trial judge entered amended TROs on April 17, 2008, retaining plaintiff's original grant of temporary custody of the children but awarding defendant overnight visitation on alternating Saturdays-Sundays and Mondays-Tuesdays. The orders also directed the visits to be supervised by the maternal grandparents.

At the June 13, 2008 hearing, as a result of viewing the videotape, the trial judge found that defendant was the aggressor, that their daughter had witnessed the incident, and entered a continuation order where plaintiff retained custody of the children. The trial judge also permitted defendant additional parenting time to be supervised with the Healing Hearts Program for a $50 per session fee. If defendant could not afford the fee, the judge provided for supervised parenting time through the Monmouth County Probation. Defendant argues that she did not participate in these additional supervised visitations because she "didn't want to meet [her] kids as [if she] was a prisoner," and she could not afford the "$100" per hour fee the program charged.

Sometime after the TRO was issued, defendant contacted the Division of Youth and Family Services (the Division). Defendant claimed that she was worried for the children since plaintiff had never been the primary caretaker. A Division worker told defendant that she had seen the video and recommended anger management courses for defendant. Defendant did not attend any anger management courses.

The trial devoted a substantial amount of time to the issue of temporary custody. We need not recite the proofs in detail except to observe that the trial judge concluded that on the record before him, the best interests of the children would be served with continued temporary custody remaining with plaintiff. The parties are presently involved in an active dissolution proceeding, and while the trial judge made carefully crafted findings on the best interests of the children in awarding temporary custody, the issue of custody must be addressed in full with the assistance of expertise not present in the summary domestic violence proceedings at issue here. What is apparent from our review of this record is that there are significant extant issues regarding the children, their welfare, including their schooling, parental care and ultimately their best interests. While there is extensive testimony in the record from the parents, little is offered from those who interact with the children outside of the home. Certainly, in the dissolution proceeding, the trial judge must give appropriate weight to the findings in this proceeding; however, the judge presumably will have the benefit of a fuller exploration of all of the attendant facts necessary to resolve the issues in the relationship of plaintiff, defendant and the children.

We now address the issues on review before us. We first address our standard of review. A reviewing court must give deference to the "factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quotation marks omitted)). The deference is particularly appropriate when there are issues of credibility since they relate to "the trial court's feel of the case as to matters such as the demeanor and credibility of witnesses." D.G. ex rel. J.G. v. North Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346, cert. denied, 129 S.Ct. 776, 172, L.Ed. 2d 756 (2008). A trial court's findings of fact will not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). This is especially true in family courts because they have "special jurisdiction and expertise in family matters[.]" Cesare, supra, 65 N.J. at 413. See also Rogers v. Gordon, 404 N.J. Super. 213, 224 (App. Div. 2008) (noting that "[t]he trial court's factual findings and credibility determinations are given great deference, particularly in the Family Part").

As we previously noted, the trial judge's findings confused the events of the morning and afternoon of April 9. Specifically, the judge understood the allegations to relate to one single event rather than two separate ones. The scuffle over the car keys, which was captured on videotape, happened after the parties dropped their son at school. Defendant's allegations of domestic abuse relate to an incident that she claimed happened before the parties went to school. The trial judge's findings of facts suggests that he was under the impression that, in the morning of April 9, 2008, the parties fought over the car keys because they both wanted to drive their son to school, and part of this fight was captured on videotape.

Interestingly, there is little discussion of this discrepancy in the parties' submissions. We assume this to be so because ultimately, the issue was one of credibility and notwithstanding the order of events, the judge's findings that the abuse took place and was within the purview of the statute is the critical finding that sets the course for the entry of the FRO.

Defendant's challenge to the judge's findings is narrow. She does not contest that the trial judge properly found that her assaultive conduct constituted domestic violence under the Act. However, she argues that we should reverse the FRO because the trial judge did not find that there was "a history of abuse or an immediate threat to safety" warranting an FRO.

Defendant focuses on N.J.S.A. 2C:25-29(a), which provides in part:

The courts shall consider but shall not be limited to the following factors [in determining whether to grant a FRO]: (1) the previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse; (2) the existence of immediate danger to personal property; (3) the financial circumstances of the plaintiff and defendant; (4) the best interest of the victim and any child; (5) in determining custody and parenting time the protection of the victim's safety; and (6) the existence of a verifiable order of protection from another jurisdiction.

Defendant admits that the trial judge considered the other factors, but she argues that the judge failed to consider factor (2), and the FRO should be vacated.

We considered a similar issue in McGowan v. O'Rourke, 391 N.J. Super. 502, 505-06 (App. Div. 2007). In McGowan, the defendant argued that "'the judge failed to make the necessary finding that a restraining order was necessary to protect the plaintiff from further abuse.'" Id. at 505. The defendant also cited N.J.S.A. 2C:25-29(a) and argued "that the trial court failed to make necessary findings under each of the factors set forth above and, therefore, the order should be vacated." Id. at 506. In rejecting the defendant's argument, we noted:

Such an analysis ignores the language of Cesare, supra, 154 N.J. at 401-02, in which the [C]court said:

[b]ecause some of the above factors, such as the financial circumstances of the parties and the best interests of the child, are relevant only to [] fashion [] a domestic violence remedy, N.J.S.A. 2C:25-29(a) does not mandate that a trial court incorporate all of those factors into its findings when determining whether or not an act of domestic violence has been committed.

The [C]court [in Cesare] noted that "the Act does require that 'acts claimed to be domestic violence . . . be evaluated in light of the previous history of [domestic] violence between the parties.'" Id. at 402, (quoting Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995)). [Ibid.]

In McGowan, there was no history of prior domestic violence between the parties, but we upheld the trial judge's finding that "[t]he act of mailing graphic pornographic pictures to a third-party and implying that they may be sent to the victim's workplace and her son is egregious[,]" and affirmed the FRO. Ibid. This is because, "one sufficiently egregious action [may] constitute domestic violence under the Act, even with no history of abuse between the parties [.]" Cesare, supra, 154 N.J. at 402.

Here, the judge found that the assault was "most disturbing" because defendant's tone and language showed her anger, she committed the assault in front of her four-year old daughter, and was unable to control her anger despite her daughter's entreaties to stop hitting plaintiff. The judge concluded that defendant's single assault on April 9, 2008, was "sufficiently egregious" to constitute domestic violence under the Act and require the granting of an FRO.

Defendant also cites Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), in support of her argument. In Silver, the trial court found that there was assault and criminal trespass, but denied the FRO without making any findings as to whether there was a history of abuse or an immediate threat to safety. We reversed and noted that there must be a two-tier evaluation of domestic violence complaints: (1) a determination of whether a party has proven one or more of the predicate acts set forth in the statute; and (2) whether a domestic violence restraining order is necessary "to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.

We consider Silver inapposite. In Silver, we remanded because the trial judge failed to make any determination of the factors under N.J.S.A. 2C:25-29(a). In this case, the judge considered the parties' prior history of domestic abuse, found none, but determined that defendant's assault as "sufficiently egregious" to grant a FRO. These findings alone are sufficient to support the FRO entered in this matter.

Finally, we reject defendant's assertions that the trial judge failed to make adequate findings on the award of temporary custody. We have indicated previously that we are cognizant of the imminent trial date in the dissolution proceedings. We have expressed our view that the custody issue will be revisited in the dissolution proceedings as the judge will have the benefit of expanded proofs on all relevant issues regarding custody.

We reject defendant's claim that the award of temporary custody prejudices her position in the dissolution action. The trial judge here correctly determined that temporary custody was warranted under the facts presented to him, and the dissolution judge will be revisiting the issue to make a determination on the full record to be developed in that proceeding. We have no doubt that neither party will be prejudiced by the proceedings in the domestic violence matter.

Affirmed.


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