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Balilaj v. Karagjozi

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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