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M.B. v. G.B.

October 8, 2010

M.B., PLAINTIFF-APPELLANT,
v.
G.B., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-10-188-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 22, 2010

Before Judges Fuentes, Gilroy and Ashrafi.

Plaintiff M.B. appeals from an order of the Family Part dated December 21, 2009, dismissing after trial her complaint under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm.

On October 5, 2009, plaintiff filed a complaint charging that defendant G.B., her ex-husband, assaulted and harassed her. The complaint alleged that on October 1, 2009, at 7:30 p.m., "[w]hile pla[intiff] was holding their child, def[endant] tried to grab her out of pla[intiff]'s arms. Def[endant] punched pla[intiff] and broke her rib. Def[endant] grabbed mother's*fn1 arm and pushed her away." Based on these allegations, the court granted plaintiff a temporary restraining order.

The case came to trial for a final restraining order before Family Part Judge Anthony Picheca. Both parties were represented by attorneys. Eight witnesses in addition to plaintiff and defendant testified over two trial days, including three medical witnesses who testified about the injury to plaintiff's side and rib. The evidence at trial established the following.

The parties were married in 1997 and divorced in 2004. They had two daughters, ages ten and nine at the time of trial. After their divorce, plaintiff was designated by agreement the parent of primary residence for the girls, and defendant had weekend parenting time.

In the summer of 2009, the parties became embroiled in post-judgment litigation over custody, parenting time, and support. In July, plaintiff filed a motion seeking an increase in child support and enforcement of the parties' parenting time agreement. On September 8, 2009, defendant filed a domestic violence complaint against plaintiff alleging harassment by her, and he was granted a temporary restraining order, which also granted him temporary custody of the two girls. On September 14, defendant filed a post-judgment application under the matrimonial docket number alleging that the girls had been physically abused by plaintiff. The court issued an order to show cause to plaintiff with temporary restraints in favor of defendant. The order permitted plaintiff only limited supervised visitation with the girls.

On September 24, 2009, the parties entered into a consent order in the matrimonial case by which they agreed not to have contact and communication between themselves except as necessary on matters concerning the welfare of the children. As part of their agreement, defendant voluntarily dismissed his domestic violence complaint and the September 8, 2009 temporary restraining order against plaintiff. Subsequently, after a hearing, the September 14, 2009 order to show cause was also dissolved by order dated October 9, 2009. Primary residential custody of the girls was returned to plaintiff. Also, by letter dated October 2, 2009, the New Jersey Division of Youth and Family Services (DYFS) notified plaintiff that it had investigated a referral of abuse and neglect of the children made against her and had determined the accusations to be unfounded.

While the order to show cause was pending and in effect, supervised visitation with the girls was arranged for plaintiff for one hour during the evening of October 1, 2009, at the home of a neighbor, Ms. R. Defendant dropped off the girls and left at 7:00 p.m. Before the hour passed, Ms. R. called defendant and instructed him to return immediately for the girls. Early termination of the supervised visitation was prompted by the older girl becoming upset and crying. The testimony at trial did not delve into the particular reasons for the girl's crying.

Ms. R. asked plaintiff to leave before defendant arrived to pick up the girls. Plaintiff began to do so but then returned to Ms. R.'s home to say good-bye to the older daughter, not wanting to leave her on a bad note. In the meantime, defendant returned and waited inside Ms. R.'s home by the front door, as Ms. R. instructed him to do. Plaintiff walked by him to go outside and made a disparaging comment that he had "brainwashed" the girls. Defendant did not react to plaintiff's comment, except that plaintiff testified he glared at her. According to defendant's testimony, the older girl heard her mother's comment and disputed it, saying "he didn't brain-wash us."

Outside the home, plaintiff picked up the younger girl and was holding and hugging her. At that time, plaintiff's mother drove up, stepped out of her car, and approached plaintiff to greet her grandchild. Defendant saw this from inside the house and became angry because he erroneously believed that the September 24, 2009 consent order prohibited plaintiff's mother from having unsupervised contact with the child.

Defendant rushed outside and attempted to take the child out of plaintiff's arms. He yelled to plaintiff's mother to "get out of here" and grabbed and turned her wrist to push her away. At the time, plaintiff's mother believed defendant had purposely scratched her, and she made that accusation loudly. At the time of trial, plaintiff's mother testified she had since concluded that defendant did not intentionally scratch her; the scratch was caused by her watch band.

Defendant and plaintiff fought a brief "tug-of-war" over the child. Plaintiff initially held onto the child and did not want to let go. She testified at trial that she felt defendant punch her, to her shock and surprise because he had not done anything similar in the past and she believed he would not hit a woman. She admitted that she did not actually see a punch. Upon feeling pain in her side, plaintiff let go of the child, and she saw defendant head back inside the house carrying their daughter. Plaintiff told her mother to get back to her house, and she immediately got into her car and drove to State Police ...


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