On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1854-08B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Messano.
This is a domestic violence case. Defendant J.M. appeals from the entry of a final restraining order against him. He contends there was insufficient evidence to support the trial court's determination that he sexually assaulted plaintiff S.M., who has not defended this appeal, and, further, that the judge erred in disallowing phone messages from plaintiff's boyfriend into evidence. After reviewing the record in light of these contentions, we affirm.
By way of background, the parties were married on August 10, 2005 and resided at Ken Gardens Apartments in Cliffwood. Their relationship, however, became strained, and about one month before the incident on April 27, 2008, plaintiff had filed for divorce. Nevertheless, on Sunday, April 27, 2008, the couple went to a restaurant for lunch and then shopping. This much is undisputed. According to plaintiff, defendant had a few drinks at lunch and began talking about their relationship and a possible reconciliation. The discussion continued upon their return home at about 4:00 p.m. When plaintiff eventually indicated a willingness to consider that option, defendant hugged her but then pushed her down on the bed and started to "force himself into" her. Plaintiff resisted, but defendant persisted, managing to take her pants off and professing that he missed her, having not been intimate with her for over a month. After struggling with him for about ten minutes, plaintiff eventually gave up because she "got tired." Afterwards, she left the house, checked into a nearby inn, and did not return home until after defendant vacated the premises sometime mid- week. In the meantime, she told her closest friends of the incident and, on Monday, called her gynecologist, who examined plaintiff the next day, Tuesday, April 29. Plaintiff also arranged with building management to change the locks on her door.
Defendant denied ever sexually assaulting plaintiff. About three months prior to the alleged incident, he accused plaintiff of adultery, citing 45 voicemail messages from her boyfriend to plaintiff. According to defendant, after lunching and shopping on April 27, they returned home and had a few drinks. To relieve his neck pain, plaintiff gave him neck massage. He then laid down in bed, because he was feeling sick. When he awoke, plaintiff had already left.
On May 2, 2008, plaintiff obtained a temporary restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, based on her complaint alleging that defendant sexually assaulted her. N.J.S.A. 2C:14-2; N.J.S.A. 2C:25-19a(7). At the final hearing, both testified as to their respective versions of the incident. At the close of evidence, the judge credited plaintiff's account, finding that defendant forced himself sexually upon her and thereby committed an act of domestic violence.
The scope of our review is limited. On account of "the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact finding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). This is especially so where, as here, the evidence is testimonial, and the trial judge has had the opportunity to observe the witnesses and evaluate their credibility. Ibid.
Based on our review of the record, we are satisfied that there was sufficient, credible evidence for the trial judge to conclude that defendant committed an act of domestic violence against plaintiff. Pascale v. Pascale, 113 N.J. 20, 33 (1988); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Moreover, we see no abuse of the court's discretion in disallowing the boyfriend's 45 recorded messages into evidence. State v. Carter, 91 N.J. 86, 106 (1982). As a threshold matter, the issue was never properly raised below and, therefore, the record fails to disclose the actual substance of the messages for us to make an informed determination on appeal. See Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). But even assuming that these items may suggest a possible motive to fabricate the sexual assault allegation, we find their relevancy so attenuated and marginal on the one hand, and, on the other, the confusion and consumption of time generated thereby so undue as to warrant their exclusion. N.J.R.E. 403; State v. Carter, supra, 91 N.J. at 106.
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