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J. J. v. M. A.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 25, 2010

J. J., PLAINTIFF-RESPONDENT,
v.
M. A., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-1272-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2010

Before Judges Grall and LeWinn.

Defendant appeals from a domestic violence final restraining order (FRO) entered against him on November 12, 2009, in favor of plaintiff, with whom he had a dating relationship for approximately one-and-a-half years. We affirm.

The pertinent factual background is summarized from the hearing on plaintiff's application for the FRO. The parties met at a gym where plaintiff was employed and defendant was a member. They never lived together, and by the time of the incident triggering plaintiff's application, their relationship was faltering.

Plaintiff testified that on the night of November 4, 2009, she went to defendant's house, knocked on the door, and "he came out and he seemed like he was upset that [she] was there. . . .

[H]e proceeded to remove [her] from the steps. And tr[ied] to shove [her] into the car."

Plaintiff stated that the parties had broken off their relationship about a month and a half before November 4. They were "communicating on a daily basis via text," and defendant continued to "show[] up" at the gym. Plaintiff explained that she went to defendant's home on November 4 because he had called her at work that day and she had "asked him not to call [her] and he said that he would keep calling. That's why [she] went to the house, just to . . . try to stop everything . . . ." Plaintiff added that she was "in a state of shock" because on November 4, defendant "was with someone else already."

Plaintiff described an incident that occurred a few days earlier, when defendant "showed up at the gym" and "was upset with [her] because [she] didn't . . . wish him a happy birthday." Plaintiff then "went to training . . . with [her] personal trainer and [defendant] walked in and told [her] that [she] was disrespectful to him[,]" and she "ignored him." When plaintiff left the gym that day, "as [she] was walking to [her] car [defendant] came storming out [of] the gym running after [her], pushing [her], telling [her] that if he saw [her] with anyone else he would break [her] jaw." Plaintiff stated that "several times" defendant "has choked [her] in the parking lot[,]" and "shoved [her] face . . . ."

Plaintiff also described an incident when defendant "showed up at [her] house" and "started banging on the door." Plaintiff's children "became scared . . . ." Defendant "said if [she] didn't open the door he would kick down the door. [She] didn't want to put [her] kids through that so [she] told him that [she] would open the door on the condition that he wouldn't put his hands on [her]. That [they] would just talk." However, when she let defendant in, she stated that he was "[c]hoking [her], pushing [her]," and again "telling [her] that if he saw [her] with anyone else he would break [her] jaw."

At the conclusion of plaintiff's testimony, defendant moved to dismiss the application. In denying the motion, the judge stated:

I'm satisfied at this point the plaintiff has made out a . . . case . . . with regard to jurisdiction in that they had a . . . dating relationship. And the fact that there w[ere] harassing communications and actions on the part of the defendant.

It's alleged that he came to her place of business, he came to her home. That there w[ere] also physical assaults from the standpoint of pushing and shoving her and other incidents of choking.

I'm satisfied that there w[ere] [prior] physical incidents . . . , as well as on November [fourth], when it's alleged that she was pushed and shoved and forced into her car.

I'm satisfied at this point that the plaintiff has made out a prima facie case.

Defendant presented two witnesses and testified on his own behalf. Troy McQueary, defendant's next-door neighbor, and Makita Lassiter, defendant's quest that evening, both witnessed the incident. They described plaintiff as upset, crying, hysterical and screaming. At one point, plaintiff was on the ground; at another, she went onto defendant's porch and told Lassiter that defendant had promised to marry her and tried to show Lassiter messages that she had received from defendant. Lassiter "felt bad" for plaintiff who seemed "pretty nice" and "just upset." According to McQueary, defendant was calm throughout the incident. Lassiter explained that defendant went into the house when plaintiff came onto the porch. When defendant returned to the porch, plaintiff walked to her car, warned him that "[w]hat goes around comes around," and left. Neither McQueary nor Lassiter saw defendant touch plaintiff.

Defendant testified that plaintiff had ended their relationship because "[s]he told [him] she wasn't happy with [him]." He acknowledged calling her at the gym on November 4, but stated that it was an accident as the number was on speed dial. He "text[ed] her back and said [he] apologize[d], . . . it was a mistake . . . ."

Later that evening, plaintiff came to his home uninvited.

When he opened the door, "she was like partially crying," and when defendant asked her what was wrong she said she did not "understand" what was going on between them. Plaintiff "started yelling. And she said I thought you told me you loved me . . . ." Defendant suggested plaintiff leave "[b]ecause everybody could hear her screaming outside." That is when defendant went back into the house and Lassiter "came to the door and they went and started talking."

Defendant denied touching or pushing plaintiff. As she was leaving, defendant heard her say "consider your gym membership canceled. And what goes around, comes around."

Defendant also denied ever physically assaulting plaintiff in the past. He described the incident when he went to plaintiff's house at the time her children were present, stating that he "went there and [they] spoke for a few minutes but then [he] left because [he] . . . had to go tend to [his] daughter."

On cross-examination by plaintiff, defendant denied ever threatening to shoot her with his "unregistered gun[.]" Defendant acknowledged that when he was arrested on plaintiff's complaint, the "police . . . took every gun that's registered and licensed to [him]."

Defendant also denied ever telling plaintiff that he "wanted to seek help for [his] anger[.]" He denied ever choking her in the parking lot or inside the gym. He also denied "show[ing] up [at her] house several times . . . choking [her] in the hallway[.]" Finally, he denied ever "threaten[ing] to break [her] jaw if [he] ever saw [her] talking to anyone else[.]"

Plaintiff testified in rebuttal that defendant "threatened to shoot [her] with his unregistered gun, which he usually hides under his bed or in the dresser, which is why [she] grew concerned, because [she] thought that he was going to come after [her] because [she] made . . . his girlfriend known [sic] that she was there and [they] were still communicating."

At the conclusion of the evidence, the judge rendered his decision from the bench:

All right. I have heard the testimony of the parties . . . . I am satisfied . . . , first of all, that there is jurisdiction to hear this matter, from the standpoint that the parties admit that they were in a dating relationship for a substantial period of time.

I'm also satisfied that the plaintiff has proven a case by a preponderance of the evidence. I'm satisfied that there was more than this shouting match going on here.

I am satisfied that even the witness statement that found her on the ground -- I don't think either of the potential eye witnesses really said they saw the plaintiff -- when she came there -- only -- I may have been looking out the window, I came out after I heard something.

What they saw or didn't see, I don't think is necessarily relevant to what happened, since I don't think they were there for the entire time. And I'm not satisfied that their testimony is credible, as far as actually witnessing what took place.

I have heard the testimony of the plaintiff; I think her testimony was credible. I believe her testimony that there has been a history in this case of physical acts of abuse.

And in this particular case, the defendant became upset with the fact that she came to his house when his new girlfriend was there. Obviously, tried to keep her from coming in, and then pushed her to keep her away, trying to separate her from the fact that he had another -- either -- that he didn't want her to know that he had a girlfriend there.

I understand that her coming to the house may look somewhat incongruous, but I can't explain [the] love/hate relationship that goes on between these parties. They broke up a month and a half ago, there seems like a lot of contact going back and forth. But . . . that's what happens in love/hate relationships that go on and on.

I am satisfied, however, that there were acts of domestic violence here and I will issue the restraining order.

On appeal, defendant raises the following issues for our consideration:

I. PLAINTIFF'S APPLICATION FOR A FRO SHOULD HAVE BEEN DISMISSED AT THE CLOSE OF HER CASE IN CHIEF BECAUSE THERE WAS NO EVIDENCE OF THE ACTS COMPLAINED OF IN PLAINTIFF'S TRO.

II. THE TRIAL COURT'S HOLDING IS INSUFFICIENT AS A MATTER OF LAW TO JUSTIFY THE ENTRY OF THE FRO BECAUSE THERE WAS NO FINDING OF A PREDICATE OFFENSE UNDER THE PREVENTION OF DOMESTIC VIOLENCE ACT AND THERE WAS NO FINDING OF AN ON-GOING IMMEDIATE THREAT OF DANGER TO PLAINTIFF IN THE ABSENCE OF THE FRO.

III. THIS COURT SHOULD VACATE THE FRO BECAUSE THE TRIAL COURT'S ENTRY OF THE FRO WAS AGAINST THE WEIGHT OF THE EVIDENCE AND IMPROPERLY RELIED UPON N.J.R.E. 404(b) EVIDENCE OF ALLEGED PRIOR BAD ACTS TO SUPPORT ITS DECISION TO ENTER THE FRO.

We have considered these contentions in light of the record and the controlling legal principles. Although we concur with defendant that the trial judge's factfinding in his final decision could have been more thorough-going, we are satisfied that the evidence supports the entry of the FRO at issue. Therefore, we affirm.

In her complaint, plaintiff had stated that she went to def[endant's] home to talk to him and found def[endant] with another woman. Def[endant] became irate and pushed and shoved victim then threatened to kill her if she ever showed up at his home again. Victim feared for her safety and returned to Newark to file a police report. Victim claims prior physical assaults and threats by Def[endant] in the past but did not report incident to police.

The criminal offenses checked on the TRO are terroristic threats and assault. In the section relating to any prior history of domestic violence, the TRO states: "Victim claims several incidents of physical and threatening behavior by Def[endant] but did not report incidents to police."

The disorderly persons offense of simple assault is defined as "[a]ttempt[ing] to cause or purposely, knowingly or recklessly caus[ing] bodily injury to another; or . . .

[a]ttempt[ing] by physical menace to put another in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1(a)(1), (3). "Bodily injury is defined as 'physical pain, illness or any impairment of physical condition.' N.J.S.A. 2C:11-1(a). Not much is required to show bodily injury." N.B v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997) (quoting New Jersey v. Bazin, 912 F. Supp. 106, 115 (D.N.J. 1995)). "'Even the slightest physical contact, if done intentionally, is considered a simple assault under New Jersey law.'" Ibid.

Plaintiff testified that on November 4, 2009, defendant "physically pushed [her] and tried to shove [her] into the car." She also testified that defendant had pushed and choked her in the past. This testimony established the offense of assault on defendant's part, both on the night of November 4 and in the parties' past history.

The offense of terroristic threats is defined in N.J.S.A. 2C:12-3(a) as "threaten[ing] to commit any crime of violence with the purpose to terrorize another . . . ." Plaintiff testified that, on several occasions, defendant threatened to "break her jaw" if he saw her with another man. She stated that this occurred in the parking lot of the gym a few days before the November 4 incident and when he came to her home previously when her children were present. In rebuttal, plaintiff further testified that defendant had threatened to shoot her "with his unregistered gun," and that, as a result, she was "afraid that he is going to come after [her] . . . ." Although she did not testify that defendant made terroristic threats on November 4, 2009, her testimony was consistent with the prior history reported in her TRO.

"Proof of terroristic threats must be measured by an objective standard. The pertinent requirements are whether: (1) the defendant in fact threatened the plaintiff; (2) the defendant intended to so threaten the plaintiff; and (3) a reasonable person would have believed the threat." Cesare v. Cesare, 154 N.J. 394, 402 (1998) (citations omitted). "[C]courts must . . . consider a plaintiff's individual circumstances and background in determining whether a reasonable person in that situation would have believed the defendant's threat." Id. at 403. Plaintiff's testimony clearly provided evidence of a history of terroristic threats by defendant.

Rule 4:37-2(b) provides that, at the conclusion of the plaintiff's case, the defendant . . . may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. . . . [S]uch motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.

As the trial judge noted here, plaintiff testified to "harassing communications and actions" and "physical assaults . . . of pushing and shoving . . . and . . . choking." On a motion for involuntary dismissal pursuant to Rule 4:37-2(b), the trial court's function "is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). We are satisfied that the trial judge properly exercised this function in denying defendant's motion to dismiss.

Defendant's remaining two arguments relate to the quality of the factual findings made by the trial judge in entering the FRO. As noted at the outset, we are somewhat troubled by the rather cursory factfinding in the judge's final decision. Nonetheless, we are entirely satisfied that the record supports the entry of the FRO.

The trial judge found plaintiff's testimony credible. Moreover he was "not satisfied" that the testimony of defendant's witnesses as to the incident of November 4 was "credible, as far as actually witnessing what took place."

We defer to those findings. "The scope of appellate review of a trial court's fact-finding function is limited. . . .

[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (internal quotations omitted).

In his final decision, the trial judge found that defendant pushed plaintiff on November 4, 2009, and that "there has been a history in this case of physical acts of abuse." He stated that "plaintiff has proven a case by a preponderance of the evidence[,]" and was "satisfied . . . that there were acts of domestic violence here . . . ." The judge had previously found that defendant had made "harassing communications and actions" and had committed "physical assaults" on plaintiff, in denying defendant's motion to dismiss at the conclusion of plaintiff's testimony.

We reject defendant's argument that the judge "improperly relied on evidence of prior bad acts" under N.J.R.E. 404(b),*fn1 "to find that [defendant] had the propensity to commit the offenses charged in the TRO." To the contrary, the judge properly considered this evidence as pertinent to the "previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse . . . ." N.J.S.A. 2C:25-29(a)(1).

Finally, we are satisfied that plaintiff demonstrated her need for the protection of a final restraining order. Once "the plaintiff has established, by a preponderance of the evidence, the commission of one of the enumerated predicate acts[,]" the trial judge must make a "second determination" namely "whether a restraining order is necessary . . . to protect the victim from an immediate danger or to prevent further abuse." Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006).

Here, the judge noted that the parties continued to have "a lot of contact going back and forth" in what he described as a "love/hate relationship[] that go[es] on and on." Moreover, plaintiff testified that, specifically as a result of defendant's threat to shoot her "with his unregistered gun," she is "afraid that he is going to come after [her] . . . ." Under the circumstances, we are satisfied that the record evinces plaintiff's need for the ongoing protection afforded by an FRO.

In sum, we are satisfied that the record is sufficient "to make a meaningful review" of that decision. Ronan v. Adely, 182 N.J. 103, 110 (2004). That review convinces us that the FRO at issue is supported by the record.

Affirmed.


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