October 7, 2010
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1833-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 7, 2010
Before Judges Payne and Messano.
Defendant, E.M.L., appeals from the July 10, 2009 order of a judge of the Family Part denying reconsideration of the judge's finding of domestic violence and his entry of a final restraining order. On appeal, defendant argues that the trial court failed to correctly review and evaluate the testimony at trial; plaintiff did not establish sufficient evidence to support the issuance of a final restraining order; the trial court failed to properly consider the totality of the parties' prior relationship when issuing the order; and the court erred in finding there was an "immediate danger" to the plaintiff under the New Jersey Prevention of Domestic Violence Act. We affirm.
A bench trial was held in this matter, at which time testimony was offered by the plaintiff, C.L.A., her two witnesses, Stephanie Hein and Michael Smith, and defendant's witness, Thomas Cieslik. Defendant did not testify. Neither party was represented by counsel at the trial.
Plaintiff testified that she had been involved in a two-year relationship with defendant, and on the day of the incident at issue, she was pregnant with his child. However, the relationship between the two had ended some time earlier.
On March 12, 2009, defendant picked up plaintiff from work in a friend's car and drove plaintiff to the parking lot of an apartment complex where plaintiff's van was parked. According to plaintiff, while seated with defendant in the friend's car, defendant threatened the life of the unborn child, stating that plaintiff was "not going to make it to full term." Plaintiff thereupon left defendant and entered her own van, sitting in the driver's seat. However, defendant, a 450-pound man, followed her, prevented her from closing the driver's side door, and sought to grab plaintiff's phone, which was located in plaintiff's pocketbook on the front passenger seat. A struggle for the purse then ensued, during which defendant placed his hands in plaintiff's mouth and tried to pry her jaws apart, stuck his fist in her throat, and choked her. As a result, plaintiff was scratched in the area below her cheeks, and her nose and tongue commenced to bleed. Eventually, defendant stopped his assault on plaintiff, but he would not permit her to leave the vehicle, threatening her or grabbing her hands when she tried to do so.
To assuage defendant, plaintiff gave him her telephone, which defendant sought in order to view her text messages. While the two sat in the van, defendant kept plaintiff's hoodie over her face so that passersby could not see that she was bleeding and crying. In total, defendant confined plaintiff to the car for approximately three hours. During that time, plaintiff testified, she thought he was going to kill her.
When, at some point, defendant threatened to kill himself and stated that he wanted to "be with [her] one last time," plaintiff agreed, believing it to be the only way that she would be permitted to leave the van. The two exited the vehicle and proceeded to the friend's apartment. Once there, and after the friend had left, defendant digitally penetrated plaintiff and then refused to permit her to use the bathroom unaccompanied. However, when the friend returned, defendant permitted plaintiff to leave.
At approximately 10:00 p.m., plaintiff contacted the police, signing a complaint for assault and obtaining a temporary restraining order.*fn1 Plaintiff testified on cross-examination that she delayed in contacting the police because, when defendant had attacked her previously, she had not had the "strength" to go to the police, and on this occasion, she sought the support of friends.
Plaintiff's witness, Stephanie Hein, testified that during the two years that the parties' relationship had existed, she had seen defendant hit plaintiff, threaten to kill her, and hold her against her will. Additionally, Hein testified that defendant had threatened Hein and had hit her many times. Further, she had witnessed defendant punishing plaintiff's son "a little harder than [she] would like."
Michael Smith testified that, just before the holidays, he had seen defendant attempting to attack plaintiff in the kitchen. Additionally, he had heard plaintiff and defendant screaming and things breaking a couple of times, although he did not know what the screaming was about.
Defense witness, Thomas Cieslik, the friend whose apartment plaintiff and defendant entered on March 13, testified that he did not observe plaintiff to be bleeding, but he noticed that she was crying "a little bit." Cieslik testified that, during the period when plaintiff was allegedly confined to the van, he had exited his apartment every fifteen to twenty minutes to smoke, and he had observed the two talking. He did not observe any violence. He confirmed that defendant had asked him to leave the apartment after plaintiff and defendant had entered.
In reaching a decision in the matter, the trial judge accepted as credible plaintiff's testimony that defendant had assaulted her, tried to choke her, and had caused plaintiff to bleed from the nose and tongue. Additionally, the judge found that defendant had forced plaintiff to have sexual relations with him, and that defendant had requested that Cieslik leave the apartment so that the sexual assault could occur. As a consequence, the judge determined that domestic violence had occurred and, after considering the evidence of past incidents of domestic violence, he determined that entry of a final restraining order was necessary in the circumstances. Defendant's motion for reconsideration was denied.
On appeal, defendant challenges the trial judge's fact-finding, arguing that the judge did not explicitly find plaintiff's witnesses to be credible but, nonetheless, he relied on their testimony in reaching his decision to issue a final restraining order. Further, defendant notes that the judge found the testimony of both plaintiff and Cieslik to have been credible, but that their testimony "was somewhat in conflict." In particular, Cieslik testified that he did not observe an altercation between plaintiff and defendant in plaintiff's van, and he did not observe plaintiff to be bleeding when she entered his apartment.
While the testimony of the parties and their witnesses was not entirely congruent, our review of the record satisfies us that sufficient credible evidence was presented at the hearing to support the judge's determination. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We infer that, by crediting the testimony of plaintiff's witnesses, the judge found their testimony to be credible.
We are similarly satisfied that defendant committed predicate acts of domestic violence by physically and sexually assaulting plaintiff, by confining her in her van for a lengthy period, and by threatening the welfare of her unborn child. Although we find the events of March 12 to have been sufficient, alone, to warrant the entry of a final restraining order, we note as well that credible evidence was introduced, without objection, by plaintiff's witnesses that assaultive conduct had occurred previously. As a consequence, we regard the judge's determination to issue a final restraining order to have been amply supported - particularly since the birth of the couple's child would otherwise provide a likely occasion for future contact between the parties. Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006); N.J.S.A. 2C:25-29a.