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Mohammadgahi v. Eshghi

August 10, 2009

MOJGAN MOHAMMADGAHI, PLAINTIFF-RESPONDENT,
v.
NIMA ESHGHI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FV-02-000187-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 22, 2009

Before Judges Reisner and Sapp-Peterson.

Defendant Nima Eshghi appeals from a final restraining order (FRO) dated August 7, 2008, issued pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. We affirm.

I.

On July 4, 2008, plaintiff Mojgan Mohammadgahi filed a domestic violence complaint alleging that defendant, her husband, had struck her on the hip causing a bruise, and had threatened to kill her. A temporary restraining order was issued and, subsequently, the court heard three days of testimony on plaintiff's application for a FRO. On August 7, 2008, Judge Melchionne placed an oral opinion on the record finding the defendant violated the Act by committing assault and terroristic threats.

These are the most pertinent facts, drawn from the trial record. Plaintiff presented testimony from two Rutherford police officers, Craig Cappawano and Steven Bachler. According to Cappawano, in January 2008, he responded to "a radio call for a domestic disturbance" at the parties' house at about 1:15 a.m. When he arrived, the parties acknowledged having had an argument that escalated into "a physical altercation." Both parties indicated that plaintiff had thrown a "candle fixture" in defendant's direction. Plaintiff told Cappawano that defendant "then . . . proceeded forward at her and had grabbed her face and slapped her with his right hand." Defendant admitted to Cappawano that he hit plaintiff. Cappawano observed that plaintiff had "some swelling on her left upper cheek bone" plus some small scratches and a laceration in that area. The police took pictures of her injuries, which were introduced in evidence.

Officer Bachler testified that on the afternoon of July 4, 2008, plaintiff came to the Rutherford police headquarters "to report a domestic dispute." According to Bachler, plaintiff stated that, at around 12:30 a.m. on July 4, her husband had hit her with an open hand on her left hip. A female officer viewed and photographed a bruise on plaintiff's left hip; both sides stipulated to the admission of those photographs in evidence. Plaintiff also reported to Bachler that during a telephone call with defendant at about 1:30 that afternoon, defendant had told her to leave their home and threatened that "if she was there when he came back home [from work], that he would kill her." She told police that her husband had struck her in the past "and that she was in fear for her life as . . . her husband had the tendency to become . . . violent."

Defendant presented testimony from Officer Scott Ahearn concerning an incident on May 7, 2008, in which defendant called the police. When they arrived at the parties' home, defendant reported that plaintiff "was becoming erratic and breaking a lot of stuff inside the apartment." When the police spoke to plaintiff she explained that she had gotten upset after hearing defendant talking to his mother on the telephone about getting a divorce. Ahearn observed some broken plates on the floor, however, both parties denied that there had been any physical violence between them. Defendant declined to apply for a TRO.

Officer Philip Nadler corroborated Ahearn's testimony about the May 7 incident, indicating that defendant declined to file charges and told police he would stay with his brother for the night. However, several hours later, at about 3 or 4 a.m., defendant called the police to the apartment a second time. Nadler described plaintiff as "visibly upset" but "not angry or irate." Apparently defendant had returned to the apartment to retrieve more of his belongings. Neither party claimed that any violence had occurred. With the police present, defendant obtained those articles and left the apartment to stay with his mother.

Testifying through an interpreter, plaintiff stated that the parties were married in Iran and had been married for a year and a half. She testified that on December 29, 2006, while they were living in Iran, defendant slapped her and threw a telephone at her during an argument. In a second incident in April 2007, defendant pushed her onto the bed during an argument. She testified that defendant hit or pushed her on other occasions, after the couple moved to the United States in December 2007.*fn1

After the second such incident in the United States, plaintiff told defendant's parents about it, and they severely reproached defendant for his behavior. According to plaintiff, defendant was so upset that they were taking plaintiff's side ...


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