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C.F. v. L.M.

February 26, 2010

C.F., PLAINTIFF-RESPONDENT,
v.
L.M., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-1482-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 12, 2010

Before Judges Lihotz and Ashrafi.

Defendant L.M. appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered on January 14, 2009, after trial. We affirm.

Plaintiff C.F. filed a domestic violence complaint on December 10, 2008, in which she alleged defendant had called her cell phone and made a terroristic threat, saying "I'm going to cut your throat from ear to ear." The complaint stated that the threat occurred at 2:50 [p.m.] on December 10. With respect to history of domestic violence, the complaint alleged that plaintiff attempted to get prior restraining orders that had been denied. It said further, "The victim has had problems with the actor for several years."

Trial was held before Judge Velazquez in the Family Part on January 14, 2009. Defendant was represented by counsel; plaintiff was pro se. In addition to the testimony of the parties, the court heard from three other witnesses. Plaintiff presented the testimony of her eighteen-year-old daughter J.F. to corroborate her allegations of violence and the phone call on December 10. Defendant presented the testimony of a co-worker to account for his activities at the alleged time of the phone call and the testimony of his lawyer's secretary to establish a motive for plaintiff to fabricate her accusation.

The testimony at trial established that plaintiff and defendant lived together from 1996 until July 2008. They had a son together, age seven at the time of trial, and were also jointly raising plaintiff's daughter, J.F. Defendant treated J.F. as a loving stepfather in her younger years. Both plaintiff and defendant were drug abusers who were working on recovery and abstention from illegal drugs. Defendant was employed as a social worker aiding drug addicts through Mount Carmel Guild, which is associated with Catholic Charities.

According to plaintiff, about four years before the time of trial, defendant began mistreating her, initially by engaging in affairs with other women and depriving her and the children of money for food and other necessities. She admitted that she had also been involved in an affair about eight years earlier, and claimed that defendant said he wanted "payback." In addition to her many allegations of physical violence by defendant, plaintiff testified that he also harassed her by forcing her to sit and listen to his descriptions of sexual activity with his girlfriends.

Plaintiff testified that the relationship deteriorated over time and defendant began pushing, slapping, and "mushing" her face, which conduct was repeated frequently for several years. The violence escalated in the early summer of 2007 when defendant allegedly grabbed her by the throat and threatened to kill her as she was leaving the house at nighttime with their son. Over the summer of 2007, the violence increased to pulling her hair and other hitting and choking incidents. On one occasion in 2007, defendant became angry at her for lying down and not cooking dinner when she was sick with the flu. As she got up and went to the kitchen, he shoved her into the stove and then took all the frozen meat out of the freezer and threw it at her and around the kitchen.

In December 2007, defendant allegedly choked plaintiff, and she obtained her first temporary restraining order. Before a hearing was held, plaintiff voluntarily dismissed her domestic violence complaint because defendant had called her and said her accusations were jeopardizing his career as a social worker.

She obtained a second temporary restraining order in mid-July 2008. She alleged that on July 10, defendant kicked her awake in bed, pushed his knee into her chest, and choked her. He allegedly said "I'd love to kill you." The next day, July 11, he attacked her in the street as she was returning from a grocery store, accusing her of leaving their son alone to play in the street. She testified that he head-butted her.

Plaintiff's daughter, J.F., also testified at the trial of the July 2008 complaint before Judge Charles. At that time, Judge Charles decided the case in favor of defendant, denying plaintiff a final restraining order. No transcript from that proceeding was provided to Judge Velazquez, and none has been included in the record of the appeal before us.

Plaintiff moved out of the home in late July 2008, taking her two children with her. On December 5, 2008, plaintiff and J.F. reported to the Division of Youth and Family Services (DYFS) that defendant had sexually abused J.F. about a year earlier by touching her breast. According to J.F.'s testimony, defendant threatened her and pushed her down stairs when she said she would tell her mother about the incident. J.F. gave a statement about the incident, apparently to the Hudson County Prosecutor's Office. At trial, no evidence was presented regarding when defendant learned about J.F.'s accusations.

Defense counsel's secretary testified that on December 10, 2008, on instructions from a former attorney for plaintiff, she called plaintiff to inform her about defendant's intent to file an application the next day for an order to show cause to gain custody of the parties' son. She called and gave that information to plaintiff in the early afternoon of December 10.

Plaintiff testified that the call did not occur as the secretary testified and that she first learned about the order to show cause on December 11, the day after she filed the current domestic violence complaint.

Plaintiff testified further that on the afternoon of December 10, she received a call from her son's school that he had an "anxiety attack" at school and needed to be seen by a doctor. She and J.F. went to the emergency room of Jersey City Medical Center to check on her son. Outside the emergency room, sometime between 2:30 p.m. and 4:10 p.m., according to plaintiff's testimony, her cell phone rang three times but the caller identification number was blocked. She did not answer the first two times, but answered the ring the third time thinking it might be from her son's school. The caller was defendant, and he immediately began to curse plaintiff and J.F. and call them liars, also saying that they were jeopardizing his career. He threatened to "cut her up" and "slice her throat." She hung up the phone.

Defendant's co-worker testified that he was with defendant most of the work day on December 10, 2008, and, in particular, at a team meeting of social workers and supervisors between 2:00 and 4:00 p.m. He did not see defendant leave the meeting or make a phone call. In questioning by the judge, the co-worker testified twice that the meeting ended about 3:30.

Defendant testified and denied making the phone call to plaintiff on December 10. He also denied that he had ever physically assaulted plaintiff. The court then asked defendant:

Q: You have never slapped her, mushed her, pushed her, punched her or kicked her?

A: No, Your Honor, but I did want to beat the sh** out of her, that's ...


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