August 10, 2009
MOJGAN MOHAMMADGAHI, PLAINTIFF-RESPONDENT,
NIMA ESHGHI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FV-02-000187-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 against him, that he hit his head against the wall and "passed out."
Plaintiff testified that on January 20, 2008, the parties got into an argument after defendant became angry over problems with his computer. According to plaintiff whenever she disagreed with defendant, he would become upset. On this occasion, defendant "started yelling and screaming and I wasn't responding. And he got very upset and he slapped me once. And after that . . . he punched me on my eye." She contended that she pushed a dish on the table into a candle stand in an attempt to get away from him. On cross-examination, she specifically denied throwing the candle holder at defendant.
Eventually, defendant let plaintiff leave the apartment. However, after calling some friends, she decided that she had a right to be in the apartment and she went back. At that point, defendant told her to leave, and she called the police, who arrived, saw her injured eye and arrested defendant. According to plaintiff, she had trouble communicating with the police because of her limited command of English, and may have used the word "slap" when she meant "punch."
Plaintiff also testified to an incident at the end of May or early June 2008 when defendant threatened her in front of her friends. Defendant said it would be easy for him to "hire two black person [sic] and give them hundred or $200 that they can finish you off." On cross-examination, plaintiff confirmed that this threat made her afraid. On another occasion in May 2008, defendant packed up all of plaintiff's belongings, brought them to the home of a friend of hers and left them in the street. On a third occasion, during an argument over their relationship, defendant told her to leave the apartment at 2 a.m., and called the police when she refused to go.
According to plaintiff, on July 3, 2008, the parties had an argument that started between 11 p.m. and midnight. She testified that during the argument, she was sitting on the bed and defendant was standing over her and screaming at her. When defendant started cursing her father for not supporting them financially, plaintiff became upset and slapped him. In response, defendant twisted her wrist, pushed her and hit her, leaving a bruise on her hip. Defendant told her she had "two days to leave the house." Later, on the afternoon of July 4, she had a telephone conversation with defendant, who was at work. They argued over his insistence that she leave the house, and he told her that "if I come home and I see that you're still there, I will kill you." Plaintiff then called a female friend who drove her to the police station to file a complaint.
On cross-examination, counsel explored at length the facts that plaintiff had experienced anxiety attacks, which she claimed were brought on by the violence in the relationship; and that she had taken medication for anxiety. Cross-examination also established that plaintiff had no family in the United States and no financial resources.
Before calling defendant as a witness, defense counsel indicated that he wished to call defendant's parents to testify for a few minutes each. After conceding, in response to the judge's questions, that neither parent had witnessed any of the alleged incidents of domestic violence, defense counsel agreed to forego their testimony.
Defendant denied hitting his wife while they lived in Iran. However, he testified that a few months after the parties were married in Iran, plaintiff was diagnosed with "anxiety problems." Defendant's version of the January 20, 2008 incident in the United States was as follows. He believed defendant was taking too much anti-anxiety medication and was sleeping too much. When he tried to convince her to stop taking the medication, she threw a candle holder at him. He denied slapping plaintiff in response to her throwing the object. He claimed he slapped her a few minutes later, after she started heading toward the kitchen. He contended that he "thought maybe she was going to start like doing something else" and he wanted "to calm her down." He agreed that the blow left a bruise on her cheek.
Defendant's version of the May 7, 2008 incident was similar to plaintiffs' in that he agreed that she became angry and began breaking crockery after overhearing him discussing a possible divorce. His explanation of the July 4 incident was as follows. On July 3, the couple had an argument over his plan to visit relatives that evening. Defendant testified that the argument continued after he returned home from the visit and that during the argument plaintiff slapped him. Defendant testified that at that point, he immediately "walked out of the bedroom." Asked if he "hit her back at any point," defendant responded, "Never. Never." He also flatly denied threatening to kill plaintiff.
Judge Melchionne began his oral opinion by acknowledging that assault and terroristic threats were two of the predicate acts "which comprise domestic violence" under the Act, N.J.S.A. 2C:25-19. He also reviewed the case law concerning what acts constituted assault and terroristic threats. He then addressed the facts of the case before him. With respect to the January and July 2008 incidents, the judge found that assault was "clearly established in this case by the bruises and striking." He found plaintiff to be a credible witness regarding these incidents, stating: "I believe her that these events occurred. I believe her about the past history starting in January ." He also specifically credited her testimony about defendant's threat to have her killed, finding that "[g]iven the past history, . . . a reasonable person might believe their life or safety is in danger."
The judge did not credit defendant's contentions that plaintiff was emotionally unstable, or that she was making false charges to buttress her immigration application or to obtain an advantage in the parties' divorce case. He found no justification for defendant's slapping plaintiff, and he concluded that plaintiff's "life, health and well being have been and are endangered by the Defendant's acts." He therefore entered the FRO.
On this appeal, defendant contends that the trial court's factual findings were inaccurate; that the court prevented defendant from presenting all of his evidence; and that the court failed to make findings concerning the predicate acts constituting domestic violence. Having reviewed the record we conclude defendant's appellate arguments are without merit and, except as addressed below, they do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
As both parties acknowledge, our review of the trial court's determination is limited. The court's factual findings are binding on us so long as they are supported by substantial credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We owe particular deference to the trial judge's evaluation of witness credibility and to the special expertise of the Family Part in adjudicating matrimonial matters. Ibid. On the other hand, we engage in de novo review of a trial judge's interpretation of the law. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Employing those standards, we find no basis to disturb the trial judge's decision here.
First, we find no merit in defendant's contention that the trial judge failed to adequately address his claim of self-defense. Defendant raised no such defense, either in his testimony or in the argument of his counsel. In the one incident in which he admitted slapping plaintiff, he did not claim to be defending himself, but rather testified that he slapped her to try to "calm her down" as she was walking toward the kitchen. Regarding the July 4, 2008 incident, defendant denied hitting plaintiff at all. Defendant presented no evidence to support a claim of self-defense. See N.J.S.A. 2C:3-4; State v. Aguiar, 322 N.J. Super. 175, 179-80 (App. Div. 1999).
Further, the judge properly made findings on the questions of whether defendant had committed acts constituting domestic violence, and whether a restraining order was needed to protect the victim from future abuse. See Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006). The judge specifically found that defendant assaulted plaintiff on two occasions, including the July 4 incident on which the domestic violence complaint was based. We agree with the judge that the assaults were "clearly established" by plaintiff's testimony and by the photographs of, and police testimony about, the resultant bruises. See Capell v. Capell, 358 N.J. Super. 107, 111 (App. Div.), certif. denied, 177 N.J. 220 (2003).
While the judge did not make a specific finding as to whether defendant also threatened to kill plaintiff on July 4, 2008, he stated that he found her version of that incident credible. He also specifically found that defendant threatened to have her killed in an earlier incident and that in light of defendant's history of violence, a reasonable person in plaintiff's situation would have believed the threat. See Cesare, supra, 154 N.J. at 403; N.J.S.A. 2C:12-3b. The judge's factual determinations were sufficient to support a finding of domestic violence on July 4, 2008, as well as a history of prior domestic violence, and his findings were sufficient to support the issuance of the FRO.
Based on our review of the trial transcript, we also find no merit in defendant's claim that the judge improperly precluded him from calling defendant's parents as witnesses. Neither defense counsel's proffer at trial nor his appellate brief provide any specific explanation of what relevant testimony either parent could have provided. Defendant's parents did not witness any of the alleged acts of domestic violence, and there was no proffer that either one of them would contradict plaintiff's testimony in any specific way. Defendant's reliance on Peterson v. Peterson, 374 N.J. Super. 116 (App. Div. 2005), is therefore misplaced. We find no abuse of discretion in the trial judge's expression of skepticism concerning the need to call these witnesses at the end of an already-protracted hearing. See N.J.R.E. 403; N.J.R.E. 611. Moreover, it appears from the transcript that defense counsel acquiesced and agreed not to call the witnesses rather than providing a more specific proffer or further argument.
The transcript also does not support defendant's claim that the judge unfairly limited defense counsel's cross-examination of plaintiff. Rather, the court exercised appropriate control of the proceedings, encouraging both attorneys to focus their questioning of witnesses in order to avoid repetition or undue consumption of time on marginal issues.