On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-249-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued on November 15, 2010
Before Judges Grall, C.L. Miniman and LeWinn.
Defendant appeals from the August 4, 2009 domestic violence final restraining order (FRO) entered against him in favor of plaintiff; he also appeals from the March 16, 2010 order denying his motion for a new trial. We reverse and remand for a new trial.
The parties, who are not married, have known each other since 2006; they had an intimate relationship and, in April 2009, had a daughter. At some point their relationship deteriorated and on July 30, 2009, plaintiff obtained a temporary restraining order (TRO) against defendant. We summarize the factual background from the transcript of the August 4, 2009 FRO hearing.
Both parties were represented by counsel. At the outset, plaintiff sought to amend the date of the predicate offense from April 30, 2009, the date set forth in the TRO, to June 19, 2009. Defendant objected that plaintiff had amended the TRO the day before to include additional prior incidents, and contended that there was "absolutely no reason why when [she] amended the complaint on August [third], the amended complaint [could] not reflect a correction on the initial date of the alleged incident." The judge allowed the amendment and "noted" defendant's objection.
Plaintiff testified that on June 19, 2009, she brought the baby, who was then six weeks old, to defendant's house for a visit. She did not want to leave defendant alone with the baby because "it was obvious to [her] that he was high."
Plaintiff stated that defendant "hit [her] pocketbook and it flew about [twenty] feet. . . . Then he grabbed [the baby] out of [her] arms while he was yelling at [her] that [she] needed to get out. . . . He pulled [her] down onto the ground. And [he] began to slam his bike on top of [her]." Defendant then "took his finger and jammed it all the way up into [her] nose[, which] . . . then . . . started to bleed[;] . . . he kept trying to pull [her] out of the house, but [she] wouldn't leave without the baby. . . . [She] was covered with . . . bleeding scratches and had a big bruise on [her] rear." She "began post partum bleeding," which lasted "for another two weeks."
After that incident, plaintiff testified that defendant told her she was "dumb" and "shouldn't make decisions. He hit [her] on the head when [she] tried to talk to him about it." Plaintiff also described past incidents when defendant handled the baby improperly, putting her at risk of injury; this would occur when he was "high." A few days after the June 19 incident, plaintiff stated that defendant took a picture of the baby naked and then "went downstairs into the basement and was masturbating."
Plaintiff also has a nine-year-old daughter and testified that defendant wanted the daughter to spend the night at his house. When plaintiff refused, defendant "said he was going to come over and kill [her]."
Plaintiff played a message defendant left on her cell phone on July 29, in which he said she was "stupid," "worthless" and "a piece of s--t." Plaintiff did not respond to the message. She obtained a TRO the next day.
Plaintiff testified that defendant has threatened to kill her on other occasions; he has "heavy, heavy drug involvement." He "cusses profusely" and has "hit [her] on the head quite a bit and call[ed her] stupid."
Plaintiff stated that she "realize[d] that [defendant is] going to hurt" her if she refuses to leave the baby with him. He has a large spear in his back yard and "carries a handgun, a big large black gun" and has two rifles. She fears for her safety and that of her children.
Defendant testified; he denied ever hitting or threatening to kill plaintiff. He visited the baby and plaintiff and showed videos and photos of the three of them together. He introduced his cell phone bills from November 2008 to March 2009 and from May 11 to July 10, 2009, which showed "many calls" from plaintiff. He introduced a card plaintiff sent him shortly after the baby was born, expressing her love for him and saying he was "a perfect father."
Defendant described the parties' relationship as plaintiff "pursuing" him and him "not being interested in having an intimate relationship with her. . . . [He] just had a friendship in order to be . . . with the baby." Plaintiff told him that "she was going to make it her life's mission to keep the baby away from [him]."
On cross-examination, plaintiff's counsel asked defendant whether he was currently on bail. When he responded that he was, for possession of weapons, counsel asked whether he was on bail "for a cocaine arrest in January[.]" The judge overruled his attorney's objection and plaintiff's counsel asked defendant if he had "ever been arrested for a drug charge," which he denied. He also denied using drugs.
Defendant presented two witnesses who testified that they have seen him with plaintiff and the baby on various occasions and never observed any problems between the parties. Steve Johnson, defendant's neighbor, testified that ...