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M.L. v. N.W.

June 30, 2010

M.L., PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
N.W., DEFENDANT-APPELLANT/CROSS-RESPONDENT.*FN1



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Nos. FV-02-773-09-J and FV-02-774-09-J.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 1, 2010

Before Judges Reisner, Yannotti and Chambers.

N.W. appeals from a November 12, 2008 final restraining order (FRO) entered against her in favor of her former spouse, M.L. In turn, M.L. cross-appeals from a FRO issued on the same day against him in favor of N.W. We affirm the issuance of both FRO's, but remand to the trial court to clarify one provision of the FRO entered against M.L.

I.

The appeals can be summarized as follows. The dual FROs arose from an incident that occurred on September 21, 2008, as M.L. was dropping off the parties' children after his parenting time. He alleged that in violation of the curbside drop-off provision of the marital settlement agreement, N.W. angrily approached his moving vehicle and lunged at him from the passenger side window. In self-defense, he rolled up the electronic window which closed on her arm. By contrast, N.W. alleged that as she had done on numerous occasions, she exited her home and met M.L. at the curb. She testified that she calmly put her hand through the front passenger side window to grab the children's overnight bag and M.L. crushed her arm by rolling up the window.

After considering extensive testimony concerning this incident as well as the parties' protracted history of domestic violence, the trial court concluded that neither party's testimony about the predicate offense was entirely credible. The judge held that both parties committed an act of assault and harassment against each other on the day in question and that due to their long history of violence against each other, a FRO was necessary "to protect [N.W. and M.L.] from an immediate danger or to prevent further abuse." (quoting Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006).)

On this appeal, N.W. contends that the judge's decision against her is contrary to the weight of the evidence; the trial court's credibility findings are erroneous; the trial court erred in admitting in evidence an audio recording created by M.L., and the court erred in refusing N.W.'s application to present psychiatric testimony to explain statements made on the recording; the court abused its discretion in refusing to allow the parties' children to testify; and the court erred in allowing opposing counsel to interview a proposed witness ex parte.

On his cross-appeal, M.L. also argues that the FRO against him was issued against the weight of the evidence; the court's credibility determinations are erroneous; and the court erred in including in the FRO a prohibition against visiting the children's school, when the court's oral opinion stated otherwise.

Having reviewed the record, we conclude that the court's decision is supported by sufficient credible evidence in the record. However, because one portion of the FRO concerning M.L. appears to be inconsistent with the court's oral opinion, we remand for clarification as to whether M.L. is permitted to visit the children's school.

II.

This is the most pertinent testimony presented at the FRO hearing. The parties were married on January 31, 2000, and had two daughters and a son. The parties were divorced in 2008. As part of their marital settlement agreement, N.W. received primary physical custody of the children. The settlement agreement provided that "[t]he party who is exercising parenting time shall be solely responsible to pick up and drop off the children curbside at [her] residence."

On the weekend of September 19, 2008, M.L. had parenting time with the children. Shortly before his scheduled visitation, he contacted N.W. to inform her that he wanted to take the children out of town to visit his parents in Watertown, New York. After consulting with her ...


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