July 1, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-422-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 19, 2010
Before Judges Sapp-Peterson and Espinosa.
In this appeal, we previously remanded this matter to the trial court for a determination as to whether the court's earlier finding of harassment "based upon a sexual assault occurring in January 2006 warrant[ed] the issuance of [a Final Restraining Order] FRO" under the Prevention of Domestic Violence Act (DVA), N.J.S.A. 2C:25-17 to -35. [C.K.] v. [O.K.], No. A-1037-07 (App. Div. March 26, 2009) (slip op. at 10). The trial court, based upon the prior record before it, clarified its earlier decision. The court stated:
I should have been more articulate about what I was saying with regard to the constant waking up, which is that I did not believe that this gentleman woke this lady up every day... during the time period in which it was alleged.
... [I]n fact, what I believed is that the gentleman was waking her up on a regular basis, but just not doing it every single day. And I hadn't put together the fact that it... was important for me to state that that was my finding based on the testimony because it does tend [to] show an ongoing course of activity, which is... really, the basis for claiming that there is risk of future acts of domestic violence.
... [T]here were two predicate offenses in my opinion, harassment, in the form of sexual assault, and frequently waking this lady up in the middle of the night. And that - - what I said repeatedly[,] committed [an] act done with the purpose to annoy the lady and under 2C:33-4(c), that that is, by itself, a basis for harassment and was an ongoing course of behavior.
Based upon this finding, the trial court issued the FRO and the present appeal followed.
On appeal, defendant contends the trial court erred in not following our remand instructions and that the FRO should be vacated because plaintiff is using the DVA as a sword to impact her immigration status with the federal government. We conclude these arguments are without sufficient merit to warrant discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(1)(E).
Our remand did not direct that the trial court conduct its proceedings in any particular manner. [C.K.], supra, slip op. at 10. Rather, our remand required the trial court to make specific findings as to whether the issuance of the FRO was needed to protect plaintiff from future acts of domestic violence. Ibid. We are satisfied that the court's clarification of its earlier decision comported with our remand, and the judge's finding of harassing conduct on a regular, albeit not a daily basis, was supported by substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Because of the Family Part's "special jurisdiction and expertise in family matters," we accord deference to the judge's fact-finding here. Cesare, supra, at 413. As such, there was substantial credible evidence in the record to support the trial judge's determination that the issuance of the FRO was necessary to protect plaintiff from "further acts of domestic violence." Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006).
© 1992-2010 VersusLaw Inc.