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J.B. v. D.B.

August 18, 2010

J.B. PLAINTIFF-RESPONDENT,
v.
D.B., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FV-09-2764-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 26, 2009

Before Judges Rodríguez, Reisner and Yannotti.

D.B. (defendant) appeals from the entry of a final restraining order (FRO) against him, following a finding that he committed an act of domestic violence, specifically, a simple assault, against J.B. (plaintiff). At the time of the assault, the parties were still living together but were in the midst of acrimonious divorce proceedings.

These are the pertinent facts. The parties were married on April 11, 2004. It was the second marriage for plaintiff. The parties are of Indian descent and the marriage was an arranged one. In March 2005, they bought an apartment and moved to Hoboken. Their son, K., was born on May 25, 2005.

On April 20, 2006, defendant filed a complaint for divorce, alleging extreme cruelty by plaintiff, including financial misrepresentations, verbal abuse, public humiliation and physical violence. Plaintiff answered and counterclaimed for divorce, alleging extreme cruelty by defendant, including physical assaults, secretive behavior and lack of cooperation.

This appeal arises from a domestic dispute that occurred in the parties' home on April 22, 2007, when the parties' child knocked over a dish, causing syrup to fall on the floor. Plaintiff claimed that, during this incident, defendant grabbed her around the neck and squeezed hard, causing her to sustain a red bruise. Defendant denied that plaintiff had pushed him during the incident. He said that she might have been injured the previous evening when a scarf she was wearing got caught in her chair when she stood up.

On April 22, 2008, the municipal court judge issued a temporary restraining order (TRO) pursuant to the Prevention of Domestic Violence Act (DVA), N.J.S.A. 2C:25-17 to -35. Judge Lourdes Santiago presided over the hearing on the final restraining order, which began on May 23, 2007, and continued on various dates in May, June and July 2007. At the hearing, plaintiff and defendant testified concerning the incident of April 22, 2007, as well as certain alleged prior acts of domestic violence. Defendant presented testimony from an expert witness, Dr. Charles Wetli, concerning the cause of plaintiff's neck injury. Other witnesses included the officers who responded to the parties' home on April 22, 2007, and certain family members.

On August 6, 2007, Judge Santiago issued her ruling, finding that defendant had committed an act of domestic violence, specifically, a simple assault, N.J.S.A. 2C:12-1(a). On that same date, a FRO was issued by the court, which barred defendant from the marital home or plaintiff's place of employment, barred him from contact with plaintiff, granted plaintiff exclusive possession of the marital home and temporary custody of their child and granted defendant parenting time as previously ordered in the matrimonial litigation. An amended FRO was entered on September 21, 2007, which allowed limited communications between the parties regarding their son.

On August 16, 2007, plaintiff moved for an award of counsel fees and costs in the amount of $46,372.60. On August 27, 2007, defendant moved for leave to appeal from the entry of the FRO and to supplement the record on appeal. On October 4, 2007, we denied both motions.

On September 27, 2007, the court entered an order awarding plaintiff counsel fees and costs in the amount of $37,513. On October 4, 2007, defendant filed a notice of appeal from the orders of August 6, 2007, and September 27, 2007. The appeal was docketed as A-0947-07T2.

We denied defendant's motion to supplement the record "without prejudice to a motion to remand to the trial judge in the domestic violence matter." J.B. v. D.B., No. M-5875-07 (App. Div. July 3, 2008). On August 5, 2008, defendant moved for a limited remand to supplement the record and to have the trial court consider additional evidence. On September 3, 2008, we granted the motion pursuant to Rule 4:50-1.

On October 14, 2008, defendant filed, in the Law Division, a motion to vacate the FRO entered on August 6, 2007, and for a new trial on the domestic violence complaint. The motion was supported by defendant's certification and various accompanying exhibits.

On December 5, 2008, the parties appeared before Judge Santiago on the motion. On December 12, 2008, the judge denied the motion.

On January 26, 2009, defendant filed his notice of appeal from this order and moved to consolidate the two appeals. The appeal was docketed as A-2584-08T2. We consolidated both appeals. J.B. v. D.B., No. M-2975-08 (App. Div. March 6, 2009).

We granted defendant's motion to file a supplemental brief in A-0947-07T2 to address a new issue. J.B. v. D.B., No. M-4084-08 (App. Div. April 24, 2009). On appeal, defendant raises various challenges.

Dismissal of Appeal

Plaintiff contends that defendant's appeal in A-0947-07T2 should be dismissed because he included materials in his appendix that were not submitted to the trial court without filing a motion before us to supplement the record on appeal. Dismissal is not necessary. We will simply not consider any of the materials that were improperly included on these appeals. See Cumberland Farms, Inc. v. Moffett, 218 N.J. Super. 331, 335-36 (App. Div. 1987).

Procedure Followed Below

Defendant argues that the trial court erred by misapplying the law with respect to the process for entering a FRO, specifically by misapplying the two-part test set forth in Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). We disagree.

A domestic violence complaint is civil in nature. Roe v. Roe, 253 N.J. Super. 418, 428 (App. Div. 1992). Although domestic violence is defined by reference to fourteen separate criminal offenses pursuant to N.J.S.A. 2C:25-19(a)(1)-(14), the purpose of the DVA is to protect the victim, not punish the person who committed the act of domestic violence. See Carfagno v. Carfagno, 288 N.J. Super. 424, 434 (Ch. Div. 1995). Pursuant to the DVA, a plaintiff must first prove, by a preponderance of the credible evidence, that the defendant committed one or ...


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