December 3, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-3372-09. William F. Henning, attorney for appellant. Helfand & Associates, attorneys for respondent (Jacqueline F. Pivawer and Tracy Ann Luciano, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2010 - Decided Before Judges Kestin and Coburn.
Defendant appeals from a final restraining order entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). The order, among its other terms, also provided that defendant was to have supervised visitation with the parties' son, subject to a risk assessment to be conducted.
On appeal, defendant argues:
THE ENTRY OF THE FINAL RESTRAINING ORDER LACKED LEGAL SUFFICIENCY, AND WAS NOT ESTABLISHED BY CREDIBLE EVIDENCE [OF]
EVEN IF A PREDICATE OFFENSE WAS PROPERLY FOUND BY THE COURT, THE ACT DID NOT JUSTIFY THE ENTRY OF A FINAL RESTRAINING ORDER.
THE COURT ERRONEOUSLY FELT CONSTRAINED TO ORDER A RISK ASSESSMENT OF AN INDIVIDUAL SUBJECTED TO A RESTRAINING ORDER PRIOR TO ENTRY OF AN ORDER OF UNSUPERVISED PARENTING TIME.
Judge Katz made his findings and set forth his conclusions in an oral opinion at the close of the trial in the matter. The judge found plaintiff's testimony concerning the facts of the matter and the conduct of the parties to be credible, and he disbelieved defendant's contradictions. Accordingly, he determined that three predicate bases of the Act had occurred: assault, stalking and harassment; and that plaintiff and her property were in "immediate danger" if a restraining order did not issue.
As a matter of general policy, given the findings that had been made, the court provided for supervised visitation by defendant with the parties' child pending the completion of a visitation risk assessment. The judge noted that he would "set the matter down for [review in] two months and . . . would resolve at that point in time all other issues regarding visitation."
Our review of the record in the light of the arguments advanced on appeal discloses that the findings and conclusions are supported by adequate, substantial, and credible evidence. Therefore, especially because "deference is . . . appropriate 'when the evidence is largely testimonial and involves questions of credibility,'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)), on appeal we are bound by the trial court's determinations. Id. at 411-12. "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We also "accord deference to family court factfinding" because those courts "possess special expertise" in their subject matters areas. Id. at 412-13. It is of no small moment that Cesare, in which these basic principles of appellate review were applied, arose in the context of a domestic violence proceeding.
Mindful of these standards, we affirm substantially on the basis of Judge Katz's thorough and incisive oral opinion.
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