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L.N. v. B.R.S.


June 17, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-1086-09.

Per curiam.



Telephonically argued March 15, 2010

Before Judges Stern and J. N. Harris.

Defendant appeals from a final restraining order (FRO) issued pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and entered after a two-day trial on June 1 and 2, 2009. He contends that plaintiff failed to establish any predicate acts of domestic violence or to show that a restraining order was necessary, as required by N.J.S.A. 2C:25-29(a). We disagree and affirm the issuance of the FRO by the Family Part.


The evidence presented at trial reveals the following. Defendant B.R.S. and plaintiff L.N. were romantically involved for more than five years. Although he maintained his primary domicile in Florida--where his wife to whom he was still married resided--defendant leased a townhouse in Kinnelon for himself and L.N., where they resided together for two years.

Plaintiff testified extensively about her relationship with defendant; his possession of a firearm; his aggressive, threatening, and possessive behavior; her fears about what might happen if she left him; and specific acts of unwelcome sexual contact. Specifically, L.N. testified that on multiple occasions a few days before she finally left defendant in May 2009, he inserted his finger in her anus while she was sleeping to annoy and harass her. In addition, although not specifically mentioned in her complaint, L.N. testified to numerous acts of other sexual assaults as evidence of her historical endurance of acts of domestic violence.

Plaintiff was cross-examined extensively during the trial. She was challenged to explain why, if she was subjected to such physical and emotional abuse over the extended duration of the parties' relationship, did she not leave defendant sooner. She was confronted with several inconsistencies in her version of events concerning defendant's possession of a firearm, and similarly in her story about being restrained with plastic ties purchased at Home Depot or being physically pinned down by defendant during various sexual acts. Defendant's counsel was given wide latitude to demonstrate that plaintiff was incredible and not worthy of belief.

The trial judge, however, viewed the matter differently. He expressly noted his ability to personally observe and assess plaintiff during her testimony and explained that although "she was emotional at times," he found that "[s]he maintained eye contact perfectly throughout, and she was detailed in many circumstances." Nevertheless, the trial judge did state, "[t]here were some inconsistencies in her testimony, for example, she's indicated [being] in an abusive relationship for quite a long time. And then at another point during her testimony she indicated that she had consensual sexual intercourse with the defendant up until a couple of months ago, which would be inconsistent with her testimony."

The trial judge held that he did not think that plaintiff was being purposely inconsistent and found that she did not deliberately utter falsehoods. He did note, however, "I do have a problem with her perception of things."

Defendant also testified briefly, but was asked only five questions during the direct examination.*fn1 He denied striking plaintiff "with [his] hand, body, or anything." He stated that he did not commit "any sort of act of sexual assault to [L.N.]." The balance of his testimony stated his age--seventy-five years- -and his perception that the relationship was "very loving," and concluded by professing his continued love for plaintiff.

The court ultimately concluded that plaintiff had not adequately proven that she was the victim of the predicate act of criminal restraint due to being menaced by defendant's threats of using a firearm against plaintiff. However, the trial court did find plaintiff's testimony regarding being pinned down during sexual activities to be credible and explicitly found that defendant's uninvited insertion of his finger in defendant's anus while she was trying to sleep constituted sexual assault as defined in N.J.S.A. 2C:14-2(c)(1), as well as harassment pursuant to N.J.S.A. 2C:33-4. As to these claims, the trial court held as follows:

I find the plaintiff to have been truthful, based upon my ability to observe her demeanor during the course of this testimony, she was emotional and was not inconsistent. And she also maintained eye contact. I find that the defendant did, indeed digitally penetrate the plaintiff's anus while she was sleeping, causing her to remain awake.

For the reasons I've set forth earlier under sexual assault, I find the defendant deliberately made the sexual contact with the plaintiff in an effort to keep her awake, or annoy her. I therefore find that the plaintiff has met her burden of establishing the predicate act of harassment under the statute.

The trial judge went on to analyze whether a FRO was required under the circumstances as he found them. He noted that there was a history of domestic violence between the parties, and that "the defendant has exhibited controlling behavior over [plaintiff]. Particularly over the last few months." Accordingly, the court found that "there's propensity for further abuse" and thereupon entered the FRO. This appeal ensued.

Defendant's main contentions on appeal are that the trial court abused its discretion in crediting plaintiff's allegations and that the entry of an FRO was unwarranted. From our thorough review of the record and the explanatory statements made by the trial judge, we disagree. We fully appreciate that defendant is disappointed in the conclusion reached by the trial judge, but having determined that it is entirely supported by the record and well within the broad ambit of discretion reposed in the Family Part, our limited scope of review does not warrant any modification to the judgment of the Family Part.


Our review of the Family Part's fact-finding function is restricted so that "findings by the trial court are binding on appeal if they are supported by adequate, substantial, credible evidence." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Reviewing courts are to generally "'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a "feel of the case" that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

Family courts are accorded additional deference for their factfinding because of their special expertise in such matters.

Ibid. Conversely, "'[w]here the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). Even then, however, we will "nonetheless accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting M.M., supra, 189 N.J. at 279).

We will not "second-guess [a Family Part judge's factual] findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Unsurprisingly, we exercise de novo review when we are called upon to appraise a trial judge's interpretation of law. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

When determining whether to grant an FRO pursuant to the PDVA, the judge must apply the dual-element test set forth in Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006); see also Cesare, supra, 154 N.J. at 402-05. "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.

In performing that function, "the Act does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.'" Cesare, supra, 154 N.J. at 402 (quoting Peranio [v. Peranio], 280 N.J. Super. [47,] 54 [(1995)]). Stated differently, when determining whether a restraining order should be issued based on an act of assault or, for that matter, any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property. See N.J.S.A. 2C:25-29(a)(1) and (2). [Id. at 125-26.]

It is well established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The determination whether such an order should be issued must be made "in light of the previous history of violence between the parties including threats, harassment and physical abuse, and in light of whether immediate danger to person or property is present." Corrente, supra, 281 N.J. Super. at 248; Peranio, supra, 280 N.J. Super. at 54.

N.J.S.A. 2C:25-29(a) provides that "the standard for proving the allegations in the complaint shall be by a preponderance of the evidence." See also Crespo v. Crespo, 201 N.J. 207, 208 (2010) (holding that the PDVA is constitutional and the preponderance standard, as applied in domestic violence matters, conforms with the requirements of due process). According to that standard, the trial judge in the present case found that defendant had committed both a sexual assault and harassment. Defendant's chief complaint is that the trial court believed plaintiff instead of defendant. He further urges that we recognize the error of the Family Part's ways because of the identification of certain inconsistencies in plaintiff's extensive testimony. Given the clarity of the trial judge's findings, we are loathe to disturb them, and we can find no principled way to do so, even if we were inclined to engage in what would amount to independent fact-finding.

After a plaintiff establishes the necessary predicate act of domestic violence by a preponderance of the evidence, the second inquiry is to determine whether a restraining order should be issued. Silver, supra, 387 N.J. Super. at 127.

Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Ibid. (citing N.J.S.A. 2C:25-29(b)). In this respect, the PDVA provides:

The court shall consider but not be limited to the following factors:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the protection of the victim's safety; and

(6) The existence of a verifiable order of protection from another jurisdiction. [N.J.S.A. 2C:25-29(a).]

One of the reasons for this stop, look, and listen approach is our recognition that "[t]he issuance of a final domestic violence restraining order 'has serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as "a serious crime against society."'" Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005) (quoting Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004) (quoting N.J.S.A. 2C:25-18)).

Here, when the judge analyzed whether an FRO would be necessary to protect plaintiff and serve the purposes of the PDVA, he considered the assault and harassment that occurred during the parties' most recent discord, as well as the numerous prior instances of domestic abuse. He also was aware that defendant claimed to be returning to Florida permanently. Nonetheless, given the judge's credibility findings, and the testimony regarding the parties' extensive history of conflict even in the face of an apparently permanent separation going forward, we are satisfied that the judge correctly found that granting the FRO was appropriate in this matter. He did not abuse his abundant discretion in this matter.


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