On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-1086-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...