October 14, 2011
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-000943-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2011
Before Judges Graves and J. N. Harris.
Defendant A.C. appeals from a final restraining order entered on December 15, 2010, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. He contends the trial court erred in failing to allow him to present additional evidence; the record does not support the trial court's determination that he committed acts of harassment as defined in N.J.S.A. 2C:33-4; and there was insufficient evidence to demonstrate that a restraining order was necessary to prevent further abuse. For the reasons that follow, we affirm.
The incident that led to the filing of a domestic violence complaint occurred at the parties' marital home on November 30, 2010, at approximately 8:00 p.m. According to plaintiff, M.C., the parties were "arguing throughout the day and some words were exchanged." Plaintiff also testified as follows:
I had repeatedly asked my husband to please stop yelling, to please back off and we could talk about it later because . . . our children were around. One was in bed and the other, I was trying to prepare for bed, giving him his snack and having . . . some play time with him. And I wished . . . to have been left alone with him without having my husband yelling and screaming at me at that time.
My husband continued to yell at me and make threats against me, "To get out of the house." He kept repeating that, "It wasn't my house. That I had to get out. And that I could get out and he already had paperwork stating that I had to leave and that I only come and see my children three days a week at his house."
At this point, my son came into the living room. My husband then proceeded to make derogatory remarks about my private parts within my son's earshot, in front of him.
THE COURT: Which son?
My eight year old . . . .
THE COURT: Okay.
After . . . he said that to me, I had stood up and I called him a coward and I called him a pig. And after . . . I did that, he took his shoulder and shoved his shoulder into me, knocking me into the coffee table. I became frightened and scared.
I stood up. I ran into the kitchen so that I could call 9-1-1. And my husband had come up behind me, grabbed me and restrained me in order to prevent me from calling . . . the police. I did break away from him. I picked up the phone and he had ripped the phone off the wall and slammed it against the floor.
After he did that, I had run out the back door of the house and ran straight to the neighbor's house and called 9-1-1.
Plaintiff described defendant as "very controlling." She cited incidents where defendant monitored her movements and phone calls, took her cell phone away, attempted to puncture her tire, accused her of having an affair, yanked her hair, threatened to cancel her car insurance, and prevented her from seeing her mother. In addition, plaintiff testified that defendant would openly discuss the parties' sex life in front of the children, and he used "the 'F' word" so much in front of the two-year old "that it is now part of his regular vocabulary."
On the other hand, when defendant testified, he denied monitoring plaintiff's phone calls, threatening to cancel plaintiff's car insurance, ripping the phone off the wall, and pulling plaintiff's hair. However, he admitted plaintiff's mother "[was] no longer allowed in [his] home." In addition, he acknowledged that while he was arguing with his wife on the night of the incident, he "bumped into her and she landed on the coffee table."
The trial court found that plaintiff's testimony was "believable and, in fact, she ran from the home, which tends to support the allegation that she . . . wasn't allowed to use the phone . . . to call for help." In addition, the court found there was "a history of verbal abuse"; defendant purposely "banged into [plaintiff] with his shoulder and knocked her on to a coffee table"; and defendant engaged in a pattern of controlling behavior. The court also concluded that it was "necessary to issue a final restraining order."
Defendant argues on appeal that the court erred in denying him the right to present additional evidence in his defense. We do not agree.
Evidence is probative if it tends "to prove or disprove any fact or consequence to the determination of the action." N.J.R.E. 401. "[I]n making relevance and admissibility determinations," the trial court's exercise of its "broad discretion" "will not [be] disturb[ed], absent a manifest denial of justice." Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied sub nom., Lydon v. Silverman, 196 N.J. 466 (2008). Here, after viewing five photographs of the "phone and table," the court determined there was no need to view a videotape of the telephone and to hear additional testimony that the telephone "has always worked." We agree that the excluded evidence was only remotely relevant, and we find no basis for concluding that defendant was substantially prejudiced by the trial court's evidentiary rulings. As the trial court indicated, additional evidence regarding the status of the telephone was not necessary because it was not "central" to the court's ultimate determination. See N.J.R.E. 403.
Defendant also argues the evidence was insufficient to establish that he committed an act of harassment and that a restraining order was necessary for plaintiff's protection. "A finding that defendant acted with a purpose or intent to harass another is integral to a determination of harassment." State v. Duncan, 376 N.J. Super. 253, 261 (App. Div. 2005). In this case, the court accepted plaintiff's testimony and found a restraining order was necessary because defendant subjected plaintiff to an offensive touching and engaged in a pattern of controlling and abusive behavior with the purpose to harass her. See Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006) (stating that the guiding standard is whether a restraining order is necessary "to protect the victim from an immediate danger or prevent further abuse").
The scope of our review is limited. A trial court's findings are binding on appeal when supported by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[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 (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Such deference is particularly appropriate when the evidence is mostly testimonial and involves questions of credibility. Ibid. "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (alteration in original) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Guided by these principles, we discern no basis to intervene.
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