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S.D. v. M.J.R.

July 23, 2010

S.D., PLAINTIFF-APPELLANT,
v.
M.J.R., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-1792-09.

The opinion of the court was delivered by: Payne, J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 24, 2010

Before Judges Cuff, Payne and Miniman.

Plaintiff, S.D., appeals from the denial of a final restraining order following a finding of domestic violence. On appeal, she raises the following issues:

POINT ONE THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT DOMESTIC VIOLENCE HAD BEEN COMMITTED BUT FAILING TO ISSUE A FINAL RESTRAINING ORDER.

A. Defendant's conduct constituted an egregious act of domestic violence.

B. The pendency of simultaneous court proceedings, does not negate the importance of affording domestic violence protections when justified by the record.

C. Given that the parties were about to have a child in common, the trial court erred in determining that the parties would have no further need for communication.

POINT TWO THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT DEFENDANT LACKED THE REQUISITE INTENT TO COMMIT SEXUAL ASSAULT AND CRIMINAL SEXUAL CONTACT BASED UPON HIS RELIGION.

We reverse and remand for entry of a final restraining order.

I.

The record reflects that plaintiff, S.D., and defendant, M.J.R., are citizens of Morocco and adherents to the Muslim faith. They were wed in Morocco in an arranged marriage on July 31, 2008, when plaintiff was seventeen years old.*fn1 The parties did not know each other prior to the marriage. On August 29, 2008, they came to New Jersey as the result of defendant's employment in this country as an accountant. They settled in Bayonne, where they were joined one month later by defendant's mother.

As plaintiff described it at trial, the acts of domestic abuse that underlie this action commenced on November 1, 2008, after three months of marriage. On that day, defendant requested that plaintiff, who did not know how to cook, prepare three Moroccan dishes for six guests to eat on the following morning. Plaintiff testified that she got up at 5:00 a.m. on the day of the visit and attempted to make two of the dishes, but neither was successful. She did not attempt the third. At 8:00 a.m., defendant arrived at the couple's apartment with his guests. He went into the kitchen, but nothing had been prepared. Defendant, angry, said to plaintiff, "I'm going to show you later on, not now, I'm not going to talk to you right now until the visitors leave." Approximately two hours later, the visitors departed. According to plaintiff:

At that time I was sitting in my room. I was afraid. I was afraid, what is he going to do to me? So I started to read some of our holy book the Koran and the visitors left around 10 o'clock a.m. and he said to me, now I'm going to start punishing you. So he started to pinch me all over my body. He would go - the pinching he would do it like a sensation with his fingers over circulation in my flesh, then he'd pull his fingers out.

I felt he was enjoying hurting me.

When asked to describe specifically where defendant was pinching, plaintiff responded that the pinching took place on her breasts, under her arms, and around her thighs; that the pinches left bruises; and that some of the bruises remained at the time that a detective from the Hudson County Prosecutor's office took pictures of her body on November 22, 2008. The punishment continued for approximately one hour, during which time plaintiff was crying. Plaintiff testified that, while administering the punishment, defendant said "I am doing all that to correct you. You have to learn to do something." Nonetheless, plaintiff stated that she "kept all this inside of [her] and we started to live again together, normal life."

An additional incident took place on November 16, 2008. At approximately 3:00 p.m., defendant announced that he planned to have guests who were to arrive at approximately 9:00 or 10:00 that night, and he asked plaintiff to prepare a supper for them. Plaintiff responded that she did not know how to cook. Defendant then left the apartment, returning at 6:00 with his mother and stating that she would do everything. The mother-inlaw refused plaintiff's offers of help, so plaintiff went to her room. At some time thereafter, plaintiff, in anger and frustration, pushed papers that defendant had placed on a desk in the bedroom to the floor.

Plaintiff stated that the guests left at approximately midnight, and that defendant came into the bedroom between twelve and one.

When he came in and he saw everything on the floor - so he entered and he came toward me and he took all my clothes off me. It was very cold day. I had two pants on. He said, what, you think you're going to escape my punishment to you? Let's see what we're going to do now.

After that he took off all my clothes and he said the first - before we start punishing you, now you're nude. You have no clothes on. Even my underwear wasn't on. So I felt I was an animal, like an animal. So he said first of all, you better go and pick [up] everything from the floor. Then he said, now we're going to start punishing you. Then he started to pinch my private area. And he was pinching my tits or my chest area. I was crying.

Additionally, plaintiff testified that defendant pulled her pubic hair.

Plaintiff stated that her vaginal area was very, very red and that it was hurting. Although she attempted to leave, defendant had locked the door. As a consequence, she attempted to lie on the other side of the bed. Plaintiff testified:

He said to me, no, you can not go and sleep on the side of the bed. You're still my wife and you must do whatever I tell you to do. I want to hurt your flesh, I want to feel and know that you're still my wife.

After that - he had sex with me and my vagina was very, very swollen and I was hurting so bad.

The judge then asked: "You told him that you did not wish to have . . . intercourse, is that correct?" Plaintiff responded: "Of course because I was - I had so much pain down there." According to plaintiff, the entire episode took approximately two to three hours.

On the following morning, plaintiff asked defendant why he had done what he did. As she reported it, defendant responded

[by] mak[ing] like a list and he would read the list and he started to say, okay, now you don't know how to cook, but there's other stuff you're going to do in the house, around the house. And when I come back from work, I will see - look at the list and see what you did and what you didn't do. Whatever you didn't do, I'm going to punish you the same way I punished you for the stuff that you didn't do before.

An additional incident occurred on November 22, 2008. That morning, following an argument with her mother-in-law, plaintiff locked herself in her bedroom. Defendant, having been refused entry, removed the latch from the door, entered the bedroom, and engaged in nonconsensual sex with plaintiff. Although plaintiff's mother-in-law and sister-in-law were in the apartment, and although plaintiff was crying throughout the episode, neither came to her assistance.

Defendant and his relatives then left the apartment, and plaintiff started to break everything in the bedroom, including one of its two windows. After defendant returned with his mother at approximately 4:00 p.m., plaintiff attempted to leave the apartment. However, defendant pulled her back into the bedroom and assaulted her by repeatedly slapping her face, causing her lip to swell and bleeding to occur. He then left the room, and plaintiff escaped without shoes or proper clothing through the unbroken window.

Once outside, plaintiff encountered a Pakistani woman from whom she requested shoes. Seeing plaintiff's condition, the woman called the police, who arrived shortly thereafter, along with an ambulance. Plaintiff was taken to Christ Hospital in Jersey City, where her injuries were treated, photographs were taken, and an attempt was made by detectives from the Hudson County Prosecutor's Office to interview her. However, she was too distraught to speak with them at length. Four of the photographs of plaintiff's body, introduced as exhibits at trial, appear in the appendix to defendant's brief. They depict bruising to both of plaintiff's breasts and to both of her thighs, as well as her swollen, bruised and abraded lips. Testimony of Detective Johanna Rak, the person who took the photographs, established that the remaining photographs disclosed injuries to plaintiff's left eye and right cheek. She testified that bruising appeared on plaintiff's breasts, thighs, and forearm. Additional police testimony established that there were stains on the pillow and sheets of plaintiff's and defendant's bed that appeared to be blood.

On the day of this episode, a domestic violence complaint was filed, and a temporary restraining order was issued. However, the action was ...


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