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Y.W. v. Y.J.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 7, 2010

Y.W., PLAINTIFF-RESPONDENT,
v.
Y.J., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1235-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 14, 2009

Before Judges Reisner and Yannotti.

Defendant Y.J. appeals from a final restraining order entered by the trial court on December 22, 2008, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm.

Plaintiff testified with the assistance of an interpreter who translated her testimony from Mandarin Chinese into English. She stated that the parties were divorced in May of 2008. It appears from the record that plaintiff has primary residential custody of the children and defendant has the right to visitation.

Plaintiff testified that on December 7, 2008, defendant brought the parties' children to a pet store, and around 6:00 p.m., plaintiff arrived for the exchange of the children. Plaintiff stated that she and defendant got into an argument about a mortgage. She asserted that defendant called her a whore and said that she flirted with other men.

Plaintiff further testified that defendant threatened her with his arm. She stated that defendant "turned to get in front of [her] and he . . . landed a fist on [her] face." The police were called to the scene and plaintiff was taken to a hospital in an emergency vehicle. She testified that her "face was swollen for four to five days."

Defendant disputed plaintiff's version of the incident. He said that he was in front of the pet store and plaintiff kicked him in the leg. He claimed that plaintiff attacked his head, neck and face. Defendant acknowledged that he raised his right arm. He said that he turned around and tried to protect himself.

Defendant stated, "[m]aybe I catch her or something when I turn around with my arm."

Defendant additionally testified that the parties previously had disputes about visitation with the children. He stated that, on June 1, 2008, plaintiff kicked, pinched and smacked him when he was at her shop. He said that plaintiff scratched his neck. He presented a photo showing the scratches. Defendant also said there had been an earlier incident when plaintiff refused to allow him to see the children.

The trial court rendered its decision from the bench. The court noted that the parties had "a very volatile relationship" that was not improving "despite the fact that the parties have now divorced." The court determined that defendant had committed a simple assault. The court commented, "[w]hat we have here is more than a simple slap. We have a punch to the face which require[d] the [p]laintiff to seek medical attention." The court found that there was "no doubt from the testimony that an assault took place."

The court additionally found that there had been a prior incident of domestic violence between the parties and disagreements over the divorce. The court stated, however, that whatever plaintiff was doing with regard to the parties' marital agreement did not give defendant "the right to engage in physical violence." The court determined that a restraining order was necessary to protect plaintiff from future acts of domestic violence. The court entered the restraining order in conformance with its decision and this appeal followed.

Defendant raises the following arguments for our consideration:

POINT I:

THE COURT BELOW ERRED IN FINDING THAT THE DEFENDANT'S CONDUCT CONSTITUTED [AN] "ASSAULT"

a. The lower court erred in finding that the Plaintiff proved all of the elements of simple assault in a domestic violence case by a preponderance of the evidence when there is no evidence to support intent to create bodily injury on the part of the Defendant.

b. The lower court's verdict is against the weight of the evidence and lacks adequate, substantial and creditable evidence to support a finding of assault.

POINT II:

IT WAS ERROR FOR THE JUDGE TO SUSTAIN A FINDING OF DOMESTIC VIOLENCE AND FIND THAT A SIMPLE ASSAULT OCCURRED WHEN THERE WAS A LANGUAGE BARRIER WHICH MADE IT DIFFICULT TO COMPREHEND THE PLAINTIFF'S TESTIMONY

POINT III:

THE COURT ERRED IN IGNORING THE DEFENDANT'S CREDIBLE SELF-DEFENSE CLAIM AND PROCEEDED TO FIND THAT THE PLAINTIFF PROVED DOMESTIC VIOLENCE OCCURRED ON THE DATE IN QUESTION

We have carefully reviewed the record in light of these arguments and the applicable law. We are convinced that defendant's contentions are entirely without merit. We affirm the entry of the final restraining order substantially for the reasons stated by Judge James F. Hyland in the decision that he placed on the record on December 22, 2008. We add the following brief comments.

The standard of review that governs our consideration of defendant's appeal is well established. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

"Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms, supra, 65 N.J. at 484). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

We are satisfied that there is sufficient credible evidence in the record to support the judge's findings that defendant committed a simple assault, as defined in N.J.S.A. 2C:12-1(a)(1). The statute provides in pertinent part that a person is guilty of this offense if he "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]" Ibid. Defendant argues that the evidence was insufficient to show that he acted either "purposely, knowingly or recklessly[.]"

We disagree. The trial court accepted plaintiff's testimony that defendant "landed a fist on [her] face," which required medical attention and caused plaintiff's face to be swollen for several days. In our judgment, that testimony was sufficient to establish the mental state required for a simple assault under N.J.S.A. 2C:12-1(a)(1).

Defendant also argues that the court erred by failing to credit his claim of self-defense pursuant to N.J.S.A. 2C:3-4, which states that the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

Defendant testified that the parties were involved in previous domestic disputes, including an altercation that took place on June 1, 2008, when plaintiff attacked and scratched him.

Defendant maintains that, because of the June 1, 2008 incident, he reasonably believed that he was in danger of imminent bodily injury when he and plaintiff argued on December 7, 2008. The trial court correctly found, however, that whatever happened between the parties on June 1, 2008, did not excuse defendant's conduct in punching plaintiff in the face on December 7, 2008.

Affirmed.

20100107

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