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B.J v. H.S

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 22, 2011

B.J., PLAINTIFF-RESPONDENT,
v.
H.S., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-2636-10. H.S., appellant pro se. Respondent has not filed a brief.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 6, 2011

Before Judges Alvarez and Nugent.

Defendant H.S. appeals pro se from a final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, on April 1, 2010.*fn1

We affirm.

The following facts, developed at trial, are relevant to our decision. Defendant and plaintiff B.J. had a dating relationship "[o]ff and on for five years." On March 25, 2010, the date of the incident that triggered plaintiff's request for a temporary restraining order (TRO), defendant brought a floor jack, which her brother had borrowed, back to plaintiff's home. C.S. was visiting plaintiff at the time and was seated in plaintiff's living room.

It is undisputed that when defendant arrived, she and plaintiff spoke outside briefly regarding the item she was returning. Plaintiff shut the front door to his house behind him as he walked to defendant's car to remove the jack from the back seat. The parties had ceased dating approximately four to six weeks prior.

While plaintiff was retrieving the jack from defendant's vehicle, defendant peered through his front windows and saw C.S. seated inside. Subsequent events are disputed.

Defendant testified that she demanded that plaintiff tell her the woman's name, and after he refused, she let herself into the house, explaining she just "want[ed] answers." Plaintiff testified that defendant entered his home immediately upon seeing C.S. inside, then ran back outside to question plaintiff about who she was.

C.S. testified that when defendant "storm[ed] in the house," she demanded that C.S. identify herself. Defendant told C.S. that she was the "ex," and ran back onto the front porch. Defendant threatened to tear out C.S.'s hair, was yelling and crying, and told plaintiff that nothing he did would keep her away.

Both plaintiff and C.S. said that defendant threatened to ruin any future relationship that plaintiff might develop. Plaintiff testified that defendant actually told him he could obtain as many restraining orders as he wanted, but that it would not keep her away or keep her from destroying any possibility he might have of another relationship. When plaintiff told defendant he was calling the police, defendant left.

Plaintiff also testified that on at least two prior occasions, defendant had assaulted him. On March 28, 2008, defendant came to his workplace, and during the course of a confrontation, kicked and hit him. On November 7, 2009, plaintiff went to defendant's home, to return her key and, in response, she kicked and hit him until her brother physically pulled her off plaintiff. On the latter occasion, after plaintiff returned to his home, defendant walked in and refused to leave until the police were called.

Defendant played down the 2009 incident, claiming that she did not strike plaintiff other than incidentally in the process of trying to pull him out of her home so that they did not argue about personal issues in her family's presence. She did not deny that on March 28, 2008, she went uninvited to plaintiff's place of work. Defendant also acknowledged calling and texting C.S. in order to find out "what her intentions were."

Judge John Kelley found plaintiff and C.S. credible in light of their "appearance and demeanor and the manner in which they testified, their ability to reason, observe and recall and the reasonableness of their testimony." Furthermore, he indicated that he was struck by defendant's perception that she was entitled to explanations from plaintiff as to why the relationship had ended. He expressed concern that if no FRO issued, further contact would inevitably lead to more acts of domestic violence. Judge Kelley noted that defendant did not completely deny the substance of plaintiff's claims, but rather, proffered justifications for, and minimized the impact of, her conduct.

The trial judge relied upon the analysis set forth in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), in reaching his conclusion that an FRO was necessary for plaintiff's protection. He concluded by a preponderance of the credible evidence that a predicate act had occurred. See N.J.S.A. 2C:25-19(a); see id. at 125. He did not find that terroristic threats or harassment had taken place but did find that defendant committed an act of criminal trespass, N.J.S.A. 2C:25-19(a)(12), by walking into plaintiff's home to confront C.S. Having made the threshold determination that a predicate act occurred, the judge then concluded that the second prong of Silver was met, as a restraining order was necessary to protect plaintiff. See id. at 126.

On June 4, 2010, defendant's application for reconsideration of the issuance of the FRO was heard and denied. This appeal followed.

Defendant asserts the following points of error:

I. THE PLAINTIFF CLAIMED NO THREAT OF VIOLENCE AGAINST HIM OR ANY FEAR OF VIOLENCE. THE PLAINTIFF'S ALLEGATIONS, EVEN IF ACCEPTED AS TRUE (AND IN VIEW OF THE FACT THAT THE SAME ARE REFUTED) DO NOT RISE TO THE LEVEL OF CONDUCT CONTEMPLATED BY THE DOMESTIC VIOLENCE ACT. THE PRIOR ORDERS OF THE COURT MUST THEREFORE BE VACATED AND THE RESTRAINTS DISMISSED.

II. IF THE COURT FINDS THAT A PLAINTIFF IS NOT AT RISK, THEN THE FINAL RESTRAINING ORDER AND PRIOR ORDERS OF THE COURT MUST BE VACATED.

III. THE COURT DID NOT PERMIT DEFENDANT THE OPPORTUNITY TO COMPLETELY ANSWER QUESTIONS AND/OR TO ENGAGE IN CROSS-EXAMINATION OF RENEWED TESTIMONY OF THE WITNESSES, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL.

The findings made by the judge in this case, as is true in every Family Part case, are entitled to particular deference because of his "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Such findings will be rejected if not based on adequate, complete evidence in the record. Peterson v. Peterson, 374 N.J. Super. 116, 121 (App. Div. 2005). Where conflicting testimony is presented at a domestic violence hearing, it is "incumbent" on the trial court to make credibility determinations in order to decide whether the circumstances warrant issuance of the relief sought by the plaintiff. Id. at 122. Such credibility determinations were made in this case, and given our review of the record, we are inclined to defer to those findings based upon the judge's "feel for the case," and opportunity to see and hear the witnesses. See Cesare, supra, 154 N.J. at 411-12.

Defendant's assertions of error all assume that plaintiff was not the victim of any act of domestic violence, was not under the threat of any actual violence, and was not otherwise at risk from her conduct. This is not a fair characterization of the record.

The trial judge opined that plaintiff credibly testified to at least two actual assaults by defendant, in 2008 and 2009. On at least one prior occasion, defendant left plaintiff's home only when police were called. Defendant has threatened to sabotage plaintiff's future dating relationships. On the most recent occasion, defendant entered plaintiff's home uninvited and created a scene requiring plaintiff to call police in order to convince defendant to leave.

In the judge's view, plaintiff reasonably feared for his future safety, given defendant's conduct on this occasion placed in the context of past encounters. Therefore he issued the FRO in order to protect plaintiff "from an immediate danger or to prevent further abuse." Id. at 127. The Supreme Court has recently underscored the importance of this step of the analysis - consideration of whether "entry of restraints is 'necessary' to protect plaintiff from harm." J.D. v. M.D.F., ___ N.J. ___, ___ (2011) (slip op. at 37). We find no error in the trial court's decision that restraints were necessary in this case.

Defendant also asserts that she was not permitted the opportunity to completely answer questions or engage in cross-examination of "renewed testimony of the witnesses." We have scoured the record and cannot find any support for these assertions. Defendant testified at some length and in narrative form. Occasionally the trial judge asked a question if he was unclear as to the meaning of defendant's statements, but nothing in the transcript of the trial indicates that defendant's due process rights were violated in any manner.

After our independent review of the record, we conclude it does not support defendant's claims of error. The judge's credibility determinations were supported by the testimony, and his conclusions in every respect are entitled to the deference we accord them.

Affirmed.


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