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C.C.P. v. M.A.P.

March 2, 2010

C.C.P., PLAINTIFF-RESPONDENT,
v.
M.A.P., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-416-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 12, 2009

Before Judges Payne, C.L. Miniman and Waugh.

Defendant M.A.P. appeals from a final restraining order (FRO) entered on August 13, 2008, pursuant to the Prevention of Domestic Violence Act (PDVA or Act), N.J.S.A. 2C:25-17 to -35; a September 2, 2008, order awarding counsel fees to plaintiff C.C.P.; and a November 14, 2008, order reconsidering and reducing plaintiff's counsel-fee award. We affirm.

I.

The following facts are gleaned from the evidence presented at trial. Plaintiff and defendant were married for twelve years during which they had two children, a son and a daughter. Plaintiff filed for divorce in November 2007. Defendant physically and mentally abused plaintiff throughout the course of their marriage.

On June 28, 2008, plaintiff and defendant had an argument that led to defendant calling 9-1-1. The incident began with a dispute over who would spend time with the children on the upcoming weekend and occurred while the parties were still residing in the same home despite the pendency of the divorce.

Plaintiff was getting ready to leave the home to take the children to the beach when defendant threatened and pushed her. Plaintiff tried to call the police, but defendant pushed her away from the phone and, grabbing her, also prevented her from going upstairs to the children. Defendant then called 9-1-1 while he restrained plaintiff until the police arrived.

When Officers Housman and Albani arrived at the parties' residence, defendant came outside with the telephone in his hand. Albani asked defendant if he was injured, and inspected him for any bruises or marks. Albani saw no signs of injury on defendant indicating that he had been hit or pushed.

Housman entered the residence to talk with plaintiff, and noticed that she was crying and had a visible injury on her wrist. Plaintiff told Housman she received the injury when defendant pushed and held her as she attempted to call 9-1-1. Housman stated that the injury was "at least two inches long and two inches wide," and that it looked as if plaintiff's wrist had been scraped along concrete. A photograph taken by plaintiff after the incident depicted an injury like that described by Housman; he confirmed that the photograph accurately depicted the injury he observed.*fn1 Because plaintiff had an observable injury, Housman and Albani placed defendant under arrest.

Plaintiff gave a statement to the police, indicating:

[M.A.P.] and I got into an argument about weekend plans. He said he was taking kids all weekend and I told him we'd split it. He told me if I tried to take the kids to the beach Sunday, he'd call cops on me. I told him to stop threatening me. He was inches from me screaming at me and threatening me and then he shoved me twice. I ran away from him to get the phone and he shoved me out of the way, grabbed the phone and dialed 9-1-1. I tried to get by him to get to where the kids were upstairs and he shoved me again. In the course of the shoving, I ended up with cuts to my wrist. He shoved/pushed me in the shoulders, chest and arms.

Plaintiff obtained a temporary restraining order (TRO) that day.*fn2 She alleged in a complaint, which was obviously prepared by the police, that on June 28, 2008, at 10:40 a.m. the parties "engaged in a verbal argument over their children [and d]efendant proceeded to shove the victim twice when victim advised she was going to phone the police." She further alleged she received "an abrasion to her right wrist as a result of being forcefully pushed by the defendant." The complaint alleged that defendant "threatened to take the children away from the victim." As to the prior history of domestic violence, the complaint alleged: "Case 08-0755, Victim reported she was verbally harassed by defendant for several months after requesting a divorce."

On July 2, 2008, plaintiff argued her written motion*fn3 for leave to amend her complaint to include additional prior acts of domestic violence dating back as far as 1998 and to adjourn the hearing to permit defendant an adequate time to prepare.

Defendant opposed the application, arguing that he had been displaced from his house and was entitled to a hearing within ten days. Judge Ann R. Bartlett found good cause for the relief requested, permitted the amendment, and adjourned the case to July 10, 2008. On July 10, defendant sought an adjournment of the trial to obtain certain discovery, but his request was denied. The trial of this matter took place on July 10, 15, and 16, and August 11 and 13, 2008, before Judge Bartlett.

On July 10, defendant asked for a continuance so that he could have additional time for discovery and defense preparation. The judge denied his request because she had already granted an adjournment, and an FRO hearing should occur within ten days after the TRO is granted. On July 16, 2008, defendant moved for dismissal of the complaint based on his limited ability to obtain discovery.

Both parties testified to their versions of the events on June 28, as did Housman. As to prior acts of domestic violence, plaintiff first testified that she had a verbal fight with defendant in 1998, while pregnant, that "escalated to the point where he... had [her] pinned and [she] fell to the ground." She stated that she did not call the police or tell anyone about it because she did not want to anger defendant. Defendant testified that he had no recollection of the 1998 dispute and denied ever pushing her or holding her down in the way that plaintiff described.

Second, plaintiff testified that in January 2001, an argument took place in the car, during which she got angry and threw her cell phone at defendant. According to plaintiff, defendant responded by hitting her twice in the face with his right hand. A picture of plaintiff's face with a black eye that was taken four days after this incident was entered into evidence. Again, plaintiff testified that she did not talk to the police because she was afraid and was unsure how doing so would affect her children.

According to defendant, plaintiff threw the cell phone at his head and then wildly attacked him, and that eventually, "it finally just stopped." When asked if he hit her, defendant replied, "I don't know if I did or not because all I was trying to do was get her off of m[e] by moving my hands around." Defendant testified that he did not report the incident in the car to the police because plaintiff "begged [him] not to." He stated that when they got back to the house, "she started to apologize out the wazoo."

Third, plaintiff testified that another argument escalated over dinner plans for Thanksgiving 2004. Plaintiff stated that defendant, "pushed me into the laundry room and trapped me in there and he had me up against the wall...." She testified that she was able to get away and then tried to call 9-1-1 before defendant grabbed the phone from her.

Defendant testified that he had no recollection of this happening. Defendant testified that he did recall the police showing up to the house in response to a 9-1-1 call, but when he asked plaintiff about it, she told him that the kids might have accidentally called.

Plaintiff testified about a fourth dispute that took place in April 2008 at her son's baseball game. Krista Foran also testified regarding this incident because, when the dispute occurred, she had been working at the baseball game "snack shack" with plaintiff. Foran stated that she and plaintiff were "just ...


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