On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-000322-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
Defendant appeals from the entry of a March 12, 2009 Final Restraining Order (FRO) in favor of plaintiff, pursuant to the New Jersey Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. We affirm.
Many of the facts are not in dispute. The parties are citizens of the Philippines, where they were married on December 15, 1992. They have no children. In 2001, plaintiff moved to the United States, where she found work as a registered nurse. Defendant followed shortly thereafter. On September 22, 2008, plaintiff filed for divorce, and the parties have not been intimate since. Although they continued sharing the same Flemington residence, they occupied different areas of the home and slept in separate bedrooms. At the time, the 43-year old plaintiff worked the night shift at Hunterdon Care Center from 7:00 p.m. until 7:00 a.m., while defendant worked from 11:00 a.m. until 7:30 p.m., creating only a short time frame, in the morning, during which both parties were in the house.
This much is undisputed. The parties, however, offer different versions of the incident on February 10, 2009, which gave rise to the present matter. According to plaintiff, she returned home after her shift ended at around 7:30 a.m., where she found defendant in the kitchen preparing breakfast. She agreed to have breakfast with him since the parties only recently had a four-way settlement conference with counsel, who suggested they make a better attempt to get along. Conversation at breakfast was cordial and involved "small talk." Defendant appeared to want a reconciliation, but plaintiff was persistent in her intention to pursue the divorce.
When breakfast was over, plaintiff retired to her bedroom and laid down to go to sleep. Defendant followed and, while she was attempting to go to sleep, got into bed and moved on top of her. With the weight of his body pinning her down, plaintiff was unable to move. She told him to get off her, but defendant continued pressing against her. When he asked plaintiff to have sex with him, she "kept saying no." Defendant then pulled off her pajama bottoms, attempted to penetrate her with his penis, and then touched her vaginal area with his hand and finger. As plaintiff continued protesting, defendant ejaculated on her leg. After the incident, plaintiff went into the bathroom, locked the door, and cleaned herself. When she later exited the bathroom, defendant had left, and she changed the soiled bed sheets.
Plaintiff was scared. When she returned home after work the next day, she encountered defendant as she entered through the garage into the kitchen. Defendant was standing in the doorway blocking her and attempting to reach out and hold her to him. Plaintiff resisted and was able to run around him, go to her bedroom, and lock herself inside. After defendant left for work, plaintiff called her attorney, conferred with a counselor at SAFE in Hunterdon,*fn1 and filed for a temporary restraining order, which was granted on February 11, 2009.
According to defendant's version of the February 10, 2009 incident, he got into bed with plaintiff with her permission. They were lying sideways, facing each other, when defendant gently hugged plaintiff. For some time, defendant stroked plaintiff's hands and massaged her head, to which she seemed to respond, calmly speaking to defendant. Professing his love for her while embracing her sideways, defendant asked plaintiff if she could feel his heartbeat, to which she replied yes. She apparently could also feel his penis on her leg. When defendant then put his hand in her pajamas and felt that her vagina was wet, plaintiff said no. He nevertheless persisted, removing her pajama bottom and going "down to kiss plaintiff." When he attempted to insert his penis into her vagina, plaintiff resisted, saying "I don't want. I don't want." Defendant immediately desisted and instead, ejaculated outside plaintiff.
At the close of evidence at the final hearing, the Family Part judge credited plaintiff's version of the incident, finding her testimony "clear" and "very candid," and defendant's "somewhat contradictory." Thus, the judge concluded:
I find after listening to the testimony that what happened was this: I find that the defendant followed plaintiff into the bedroom, that she went to bed, or attempted to go to bed, that he was pursuing her, he wanted to know if she loved him. First he was on a computer chair. She got in bed. And I do find at that particular time once in bed that the defendant did in fact get on top of her. He asked her if she loved him, she said: No. I believe the Plaintiff when she said that he had all of his weight on top of her. She said she couldn't move. He was on top of her. She was in her shirt and pajamas.
I find that she told him to get off. He was pressing against her. He wanted to know if she could feel his heart beating. He wanted sex. That's what it got down to. He was feeling romantic. And ...