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C.M.H v. Berardo G. Montez


January 5, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-002007-10.

Per curiam.



Argued December 15, 2010 - Decided Before Judges Fisher, Simonelli and Fasciale.

Following the close of plaintiff's case at trial for a final restraining order (FRO), on defendant Berardo Montez's motion pursuant to Rule 4:37-2(b), the Family Part judge dismissed plaintiff's domestic violence complaint and vacated a temporary restraining order (TRO) entered on May 27, 2010. We reverse and remand for a new trial before a different judge.

We accept as true the following facts presented by plaintiff at the FRO trial and accord her all favorable inferences therefrom. Dolson v. Anastasia, 55 N.J. 2, 5 (1960).

Plaintiff and defendant began dating in June 2009. On May 24, 2010, the parties had an argument in a hotel room in Atlantic City. When plaintiff said she was going to leave, defendant, who was intoxicated, tackled her and put his hand over her nose and mouth in an effort to silence her. Plaintiff could not breathe, got scared, flailed her arms, and struck defendant in the nose, causing it to bleed. Plaintiff tried to leave but defendant blocked and cornered her and slapped her across the face. Defendant stopped after plaintiff kicked him. He then went to sleep. Believing that she and defendant could work things out in the morning when he was sober, plaintiff did not leave.

Three days later, plaintiff was at defendant's apartment. She wanted to leave because she began feeling uncomfortable due to the incident in Atlantic City. The parties began arguing over plaintiff's desire to leave and over a tape of an intimate encounter between them, which plaintiff asked defendant to return to her. Defendant threatened that if plaintiff left, "I'll put that [tape] all over the internet, and I'll murder --I'll hunt you down and I'll kill you and your whole family." Defendant then grabbed plaintiff's arm as she attempted to leave. Plaintiff eventually left, went to the police station, and obtained a TRO. Plaintiff's complaint indicates that he owns three handguns.

Despite finding plaintiff's testimony credible, the trial judge granted defendant's motion for dismissal at the close of plaintiff's case without affording plaintiff an opportunity to oppose the motion. The judge concluded that plaintiff failed to establish a predicate act of domestic violence or that she was in immediate danger and a FRO was necessary to prevent further abuse. This appeal followed.

In reviewing a trial court's grant of a motion for an involuntary dismissal pursuant to Rule 4:37-2(b), our task is to determine whether the evidence, along with its legitimate inferences, could have sustained a judgment in favor of the party opposing the motion. Dolson, supra, 55 N.J. at 5; Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:37-2(b) (2011). Neither the trial judge nor we, as a reviewing court, are "concerned with the weight, worth, nature or extent of evidence, but must accept as true all [of] the evidence supporting the party opposing the motion, and accord him [or her] the benefit of all favorable inferences. Then, if reasonable minds could differ, the motion must be denied." Dolson, supra, 55 N.J. at 5. "A motion for involuntary dismissal only should be granted where no rational [factfinder] could conclude that the plaintiff marshaled sufficient evidence to satisfy each prima facie element of a cause of action." Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008).

Applying these standards, we conclude that the dismissal was improper. The judge was required to accept as true and give plaintiff all legitimate inferences from her testimony that defendant assaulted her, harassed her by threatening to disseminate the tape on the internet, and threatened to murder her and her family. The judge should have inferred that the threat to murder plaintiff and her family, and the threat to release the tape, sufficiently posed an immediate danger to plaintiff and her family and a need to protect plaintiff from further abuse.

Reversed and remanded for a new trial. Because we are concerned that the judge would have a commitment to her previous view of the evidence, in fairness to her, we direct that the new trial occur before a different judge.


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