November 10, 2010
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-2416-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2010
Before Judges Grall and LeWinn.
Plaintiff S.W. appeals from an order dismissing a complaint she filed under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. In that complaint, plaintiff alleged that defendant P.S.P., the father of her child and a member of her household, assaulted her. Although the judge found that defendant assaulted plaintiff, he determined that a restraining order was not necessary to prevent further domestic violence. See N.J.S.A. 2C:25-29b (authorizing a grant of "relief necessary to prevent further abuse"); Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006) (holding that a plaintiff must establish an act of domestic violence and that a restraining order is necessary to prevent further abuse). Accordingly, the judge denied relief. Because the judge's "discretional determination" is supported by "sufficient, credible evidence" in the record as a whole, we defer to it and affirm. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
On June 2, 2009, defendant returned with groceries to the home he shares with plaintiff and their six-year-old son. Plaintiff was in the bathroom and did not respond to his request for help. By plaintiff's account, defendant entered the bathroom with grocery bags in both hands. Still holding the bags, he punched her with closed fists. She raised her arms to ward off the blows but sustained "minor" injuries that were photographed by the officers who responded to a 911 call. She did not require medical attention.
Plaintiff and defendant testified about the history of their relationship. They have lived together since plaintiff learned that she was expecting a child. According to plaintiff, defendant is controlling. He does not allow her to leave the home or drive; keeps her immigration papers; reports paying her a salary from his business but does not give her the money and makes her pay the income tax; and has lied to her about her visa having expired. According to defendant, plaintiff is free to come and go as she pleases and does not know how to drive. From his perspective, he is nothing but "nice" to plaintiff. He does the shopping and has even hired a person to clean their house and another to take their son to school.
Plaintiff asserted that the June 2, 2009 incident was the second time defendant assaulted her. She also called 911 in August 2004. One of the officers who responded to the June 2 911 call, had responded to that first call. According to the officer, the dispute in 2004 was verbal and assault was not alleged. The night of the incident, defendant left the home to stay with a neighbor and allow things to cool off.
The judge found that defendant assaulted plaintiff on June 2, 2009, but did not find that defendant assaulted plaintiff in 2004. In compliance with our decision in Silver, the judge considered whether plaintiff established that a restraining order is necessary to prevent further abuse. 387 N.J. Super. at 126-27. He concluded that she had not made that showing. Although the judge found that the evidence suggested "some controlling behavior" on defendant's part, he determined that there was insufficient evidence that a final restraining order was necessary to protect plaintiff from further acts of domestic violence.
On appeal, plaintiff contends that Silver should not be applied in a case where the parties live together. Silver's holding, however, is based on an interpretation of the PDVA. Ibid. There is no statutory basis for dispensing with the plaintiff's obligation to show a need for a restraining order in a case involving cohabitants; the PDVA does not make that distinction. Obviously, the parties' status as cohabitants may be relevant to the necessity for restraints, but it is not determinative.
Plaintiff also argues that the judge erred in applying Silver by "searching for a pattern of abuse rather than focusing on the one [e]gregious act at hand." (capitalization omitted). In Silver, we recognized "that a pattern of abusive and controlling behavior is a classic characteristic of domestic violence," but we stressed that a predicate act of domestic violence, as "defined in N.J.S.A. 2C:25-19a, may arise even in the absence of such a pattern where there is 'one sufficiently egregious action[.]'" 387 N.J. Super. at 128 (quoting Cesare, supra, 154 N.J. at 402). In Silver, we vacated an order dismissing a case in which the judge had found an assault resulting in injuries that required medical attention, and remanded for reconsideration of the need for a restraining order. 387 N.J. Super. at 126, 128. We directed the judge, who had found that the parties had "an acrimonious relationship, manifested by volatility and rage," to consider prior acts of domestic violence in assessing the need for a restraining order. Id. at 128. But we did not hold that a judge faced with an egregious act of domestic violence should enter a final restraining order without considering whether one is necessary to prevent further abuse.
In this case, which involved injuries less serious than those in Silver, the judge considered the single alleged incident of prior violence and found the evidence inconclusive. The record fully supports that determination, and the members of this panel, who did not have the opportunity to observe the testimony about the prior incident, should not second guess.
See Cesare, supra, 154 N.J. at 412-13. With respect to the judge's assessment of the need for a restraining order, the judges of the Family Part, who have the expertise, are entrusted with that responsibility. Id. at 413. Having determined that the judge applied the controlling legal principles to facts supported by the record, we defer to his balancing of the interests implicated. See ibid.
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