May 24, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-000918-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 13, 2010
Before Judges Carchman and Ashrafi.
Plaintiff C.L.T. brought an action pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, against defendant J.R.L. The judge granted a Temporary Restraining Order and following a hearing, granted a Final Restraining Order (FRO) restraining defendant from, among other things, returning to the scene of the domestic violence, a home owned by the parties. In his decision, the judge found that defendant had caused damage to a door when entering the parties' bedroom and kicked plaintiff. He found that defendant had committed a simple assault, although no assault was charged in the complaint. He further found that because the house was owned jointly, he would not conclude that the kicked door was criminal mischief. We conclude that even if the simple assault was not alleged, the findings of the trial judge as to defendant's conduct were sufficient to establish acts of domestic violence and accordingly, we affirm.
We briefly describe the relevant facts. The parties have been involved with each other for approximately four years. They subsequently became engaged and bought a house together in Paterson where plaintiff, defendant and plaintiff's three children resided. The parties relationship has been "stormy," and on November 3, 2008, plaintiff filed a domestic violence complaint alleging three incidents that occurred on October 8, 2008, November 1, 2008 and November 2, 2008. The October incident was described in the complaint:
10-08-08- During a verbal dispute, pla [sic] in fear locked herself in the bedroom where def [sic] kicked in the door causing a crack to the door. Pla states def entered the bedroom and began breaking her dresser. Pla states def broke the drawers and threw all over the floor her clothing. Pla has pictures of the damages to the dresser.
Plaintiff states that def has checked her personal emails, checks her drawers and personal documents. Pla states the def [has] a short temper and within the last few weeks anything sets him off. Pla states the def has threatened her children several times and fears for her the [sic] safety and well being of her and her children.
At the hearing, plaintiff and defendant testified as did two of plaintiff's children. While the testimony attests to a continuing difficult relationship, much of it was unclear and uncertain as to dates. However, there was evidence adduced in the record that the incident described as occurring on October 8 did take place, and according to plaintiff and the witnesses, defendant broke some furniture as well as "kicking the door in." In addition, the judge made a finding that plaintiff had been struck in the leg and concluded that there was a simple assault. He further concluded that there was domestic violence and entered the FRO.
On appeal, defendant asserts that the FRO was based on allegations not specified in the complaint. We note that in addition to the factual allegations, plaintiff alleged as acts of domestic violence - assault, terroristic threats, criminal mischief and harassment. As to the claim of criminal mischief, the judge stated: "I'm not going to find it on the basis of criminal mischief because it's a house owned by both of them.
His damage to the door is not chargeable as such if this were a criminal case." The judge did not address the import of his findings, based on the testimony of the children - T.T. and N.T. - that the breaking of the door and causing damage to the furniture amounted to something other than criminal mischief. The judge did not consider the application of the harassment statute, N.J.S.A. 2C:33-4, to the facts presented here.
Harassment is defined as "engag[ing] in... alarming conduct... with purpose to alarm or seriously annoy another person." N.J.S.A. 2C:33-4c. We have found harassment where defendant kicked down a bathroom door while plaintiff was inside and threw furniture and other objects in her presence, Zappaunbulso v. Zappaunbulso, 367 N.J. Super. 216, 219 (App. Div. 2004), and where defendant blocked in plaintiff's car in her driveway and used coarse language as this behavior was likely to cause alarm or annoyance, Tribuzio v. Roder, 356 N.J. Super. 590, 598 (App. Div. 2003).
We conclude that even if the kicking and damaging the door and furniture did not amount to criminal mischief, such conduct did fall within the scope of the harassment statute and was an act of domestic violence.
Since we conclude that there was adequate proof of harassment, we need not address the applicability of L.D. v. W.D., 327 N.J. Super. 1 (App. Div. 1999), and its progeny as to whether even without the finding of simple assault, there was sufficient evidence to warrant a finding of domestic violence and the imposition of the FRO.
Defendant also argues that since plaintiff lied about her ownership or possession of machetes, her testimony was not worthy of belief. We reject that argument as the judge made specific findings as to credibility. Our review of the trial court's fact-finding is circumscribed so those findings are binding on appeal if supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Cesare, supra, 154 N.J. at 412 (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)) (internal quotation marks omitted).
We conclude that the judge's findings are supported by the record and conclude that the FRO should be affirmed.
© 1992-2010 VersusLaw Inc.