On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-240-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Ashrafi.
Plaintiff wife appeals from denial after trial of a final restraining order and dismissal of her complaint under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Defendant husband has not responded to the appeal. We affirm because the basis of plaintiff's appeal does not provide grounds to set aside the trial court's decision and further because plaintiff has not provided a record of the trial for us to review the court's rulings during the trial itself.
From the domestic violence complaint filed by plaintiff and the transcript of the trial court's oral decision dated September 1, 2009, we discern the following facts. Plaintiff and defendant were estranged and planning to get divorced. On July 30, 2009, plaintiff went to the home of defendant's ex-wife to pick up the children that she has with defendant. Without knowing more about the relationships, it appears that plaintiff and the ex-wife were on friendly terms because the ex-wife provided daycare for the children. On that date, defendant was at the shore with a friend identified in the transcript as Gallary.
According to plaintiff, at 6:13 p.m. on that date, defendant spoke to her on the telephone, used profanity and made an extremely derogatory reference to her, accused her of being responsible for causing defendant's ex-wife to obtain a domestic violence restraining order against him, and said that he would see her buried next to his ex-wife. Plaintiff had been the victim of an extensive history of domestic violence committed by defendant, including two arrests and a prior criminal conviction and jail sentence for assaultive conduct as well as a number of unreported incidents. Consequently, plaintiff believed that defendant's remarks were a threat to kill her, and she filed a complaint the next day alleging terroristic threats, N.J.S.A. 2C:12-3, and harassment, N.J.S.A. 2C:33-4, as the predicate acts of domestic violence. Plaintiff was granted a temporary restraining order.
To determine whether plaintiff was entitled to a final restraining order, the court held a trial over several days, and a number of witnesses testified. Both parties were represented by attorneys. From the testimony and other evidence presented at trial, the court found that defendant was guilty of prior domestic violence against plaintiff and that she was reasonably in fear of him and entitled to a final restraining order if he committed a current act of domestic violence. But the court concluded that plaintiff had not proven the terroristic threats or harassment alleged as a result of the phone call at 6:13 p.m. on July 30th.
The court predicted that it would be "just a matter of time" before defendant would "get himself in trouble again" because of his character and past domestic violence. Nevertheless, the court concluded that it could not grant a final restraining order under the law because plaintiff had failed to prove by a preponderance of the evidence a predicate act of domestic violence on this occasion, as required by N.J.S.A. 2C:25-29a.
The court's decision relied on the testimony of Gallary that he was with defendant at 6:13 p.m. on July 30th and overheard defendant's phone call to plaintiff. Gallary apparently testified that he heard no threat as described by plaintiff.
To reach a credibility determination between the conflicting versions of the phone call, the court relied on information in the record that defendant had not been served with his ex-wife's temporary restraining order until he returned from the shore at about 7:00 p.m. Therefore, the court concluded, at 6:13, defendant was not yet aware that his ex-wife had obtained a temporary restraining order against him and did not have the motive to make the statements that plaintiff alleged.
On this appeal, plaintiff, now representing herself, alleges she has a police report that states the local police called defendant at 4:57 p.m. and informed him orally that his ex-wife had obtained a temporary restraining order against him.*fn1
She seeks reversal of the trial court's decision on the ground that the court relied on a fact that was false, namely, the time that defendant became ...