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E. M., Plaintiff-Respondent v. G. M.

September 15, 2011

E. M., PLAINTIFF-RESPONDENT,
v.
G. M., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1777-10.

Per curiam.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 5, 2011

Before Judges Fuentes and Gilroy.

Defendant G.M. appeals from a final restraining order (FRO) issued by the Family Part pursuant to a complaint filed by plaintiff E.M. under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. After considering the evidence presented at trial, the court found defendant committed the predicate offense of harassment. The court also found that the issuance of final restraints was necessary to prevent future abuse.

Defendant argues that the evidence presented at trial does not support a finding of harassment under N.J.S.A. 2C:33-4(c). We agree and reverse.

I

The parties are married*fn1 and have two daughters ages five and two. The incident that gave rise to this litigation occurred on January 25, 2010, at approximately eight o'clock in the morning. According to plaintiff, defendant came into the bedroom where she had been sleeping and "snatch[ed] the covers off of [her] and pulled [her] out of bed." Plaintiff described defendant's demeanor as "like he was ready to do [her] in . . . ." Plaintiff testified defendant then "proceeded to push [her] out of the bedroom."*fn2 She prevented defendant from pushing her down the steps by going into the bathroom.

From this point, plaintiff testified she was "holding on for dear life" because defendant allegedly tried to pull her "any way he could, [by her] neck, hair, arms with two hands to get [her] out of the bathroom to tell [her], come on let's go downstairs." When defendant was unable to get plaintiff out of the bathroom, he allegedly pushed her and she "fell back . . . in the bathroom" and "hit" her head against the bathtub. According to plaintiff, at the point when it looked to her as if defendant "was getting ready to strike [her]," one of their daughters came out of the bedroom crying. Defendant immediately went over to comfort the child and ceased his attack on plaintiff.

Plaintiff testified that she and defendant remained in the house together for the entire day without further incident. She kept mostly to herself in the upstairs part of the house, while defendant remained downstairs. Plaintiff did not call the police nor seek a temporary restraining order at the time. The next day, January 26, 2010, plaintiff left her house with the two girls and moved into a "temporary protective shelter," where she remained up to the date this matter came to trial on May 13, 2010.

Plaintiff did not file a domestic violence complaint against defendant until February 18, 2010. The complaint alleged simple assault, N.J.S.A. 2C:12-1(a), and harassment, N.J.S.A. 2C:33-4(c), as the predicate offenses for the relief sought. When her attorney asked why she waited twenty-four days after the incident to seek judicial relief, plaintiff gave the following response:

PLAINTIFF: Well, I finally mustered the courage to go out on my own -- to proceed to do that. Prior to that, I've been getting rides to all my appointments, even court ordered appointments, they schedule . . . persons to pick me and my girls up from DYFS*fn3 to take us to the girls appointments, to my appointments. And they finally . . . indicated that I needed to possibly start driving, you know my own because they knew I was going to file the restraining order. PLAINTIFF'S COUNSEL: Okay. So from . . . January 26th [2010] until actually, now you've been in . . . a shelter?

PLAINTIFF: Yes. I'm still there now. PLAINTIFF'S COUNSEL: And during that time [twenty-four days] what prevented you from going sooner to get a restraining order? PLAINTIFF: Well, the main thing was my girls. I mean because as early as November he indicated he had [an] unregistered gun, he didn't mind going to jail, he's ready to die. And I knew I had to -- as much as possible, although I was -- starting to put me in distress, I knew I had to be there for the girls. I tried to keep a distance but at some point, you know he feels he can do whatever he wants to do and you know, and push boundaries. So, when it came [to] a point where [it trickled] down to my girls, I had to make a move that the emotions really was just overwhelming.

PLAINTIFF'S COUNSEL: Okay. I'm just asking you what prevented you from going sooner? Just a brief answer.

PLAINTIFF: Well, I seen and I've heard of even worse situations but when it came to me having to be a responsible parent, I -- I was even more moved to make a move to -- PLAINTIFF'S COUNSEL: Okay. Listen. PLAINTIFF: To be in a safe environment. PLAINTIFF'S COUNSEL: Okay. So, what took you so long from ...


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