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S.B v. Z.H

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 26, 2012

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-001408-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 19, 2011

Before Judges Cuff and Waugh.

Defendant Z.H. appeals 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. Defendant argues that the FRO must be vacated because plaintiff is not a victim entitled to protection by the PDVA; defendant did not commit an act of domestic violence; a restraining order was not required under the circumstances of the case; plaintiff, not defendant, should have been barred from the residence; and the findings of fact are not supported by the evidence. We disagree and affirm.

By late December 2010, plaintiff had been living in her mother's home for approximately five months. Plaintiff contemplated moving but had made no specific plans to do so. Z.H. and plaintiff's sister also resided at plaintiff's mother's home. They had been living with plaintiff's mother for several years.

On December 26, 2010, plaintiff, her mother, plaintiff's son, plaintiff's adult daughter and her three young children, plaintiff's sister and Z.H. assembled for a holiday dinner. Plaintiff's sister was highly intoxicated, as was Z.H., and a verbal disagreement erupted at the table initiated by a remark about the slovenly manner in which plaintiff's sister ate her food. Plaintiff testified that Z.H. responded by shouting obscenities at plaintiff, and she responded in kind. Z.H. approached plaintiff and the shouted retorts continued. When plaintiff's son stepped between plaintiff and Z.H., plaintiff's daughter called the police. According to plaintiff, Z.H. punched her in the upper left arm.

Z.H. testified that he responded calmly to plaintiff's insulting remarks to his former wife,*fn1 escorted her into their bedroom, and did not punch plaintiff. Plaintiff's mother confirmed that Z.H. shouted at plaintiff at the table and punched her in the arm.

According to plaintiff, following the shouting match between her and Z.H., her sister interceded and took Z.H. to their bedroom. Plaintiff also followed the couple, chiding her sister for her conduct in their mother's house. According to plaintiff, Z.H. and her sister approached her. As before, plaintiff's son pushed Z.H. and plaintiff's sister away from his mother. Plaintiff's sister fell onto the bed; Z.H. fell and struck the nightstand. Z.H. testified that plaintiff was the aggressor at this point and severely scratched his ear.

When the police arrived a few minutes later, plaintiff was in the living room. Based on the bruises on plaintiff's arm, the police arrested Z.H., and plaintiff applied for a temporary restraining order.

Judge Thurber found that the parties were household members and held they were subject to the jurisdiction of the PDVA. She also found that an act of domestic violence occurred on December 26, 2010. She found that the incident was precipitated by plaintiff's sister's behavior at the dinner table, that Z.H. struck plaintiff, and that this assault was an act of domestic violence. The judge also found that Z.H. had previously destroyed computer equipment belonging to plaintiff and this act of criminal mischief was a prior act of domestic violence. Finally, Judge Thurber found that an FRO was necessary because of the level of hostility between these household members and the likelihood of future conflicts.

The threshold inquiry is whether plaintiff falls within the protection of the PDVA. N.J.S.A. 2C:25-19d defines a "victim of domestic violence" as "a person protected under this act and shall include any person who is 18 years of age or older . . . and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member." Although the PDVA does not define "household member," several cases had addressed the meaning of this term. In South v. North, 304 N.J. Super. 104, 116 (Ch. Div. 1997), the father of the plaintiff's grandson was considered a household member. The plaintiff lived with her adult daughter and grandson; the father of the child and the daughter were engaged. Id. at 107. In Storch v. Sauerhoff, 334 N.J. Super. 226, 233, 235 (Ch. Div. 2000), a stepchild and stepfather, who lived on the same block were considered household members, even though they had not resided in the same house for nineteen years. In Hamilton v. Ali, 350 N.J. Super. 479, 480 (Ch. Div. 2001), college students living in a nine-person dormitory suite were considered household members. The court noted that sharing four bedrooms, a bathroom, and a common area constituted a "family-like setting." Id. at 486.

Here, the parties had resided in the same house for five months. Although plaintiff always considered residence in her mother's house temporary, at the time of the incident she had no plans to leave in the near future. This living arrangement was enough to consider plaintiff and Z.H. household members and subject to the protections and remedies of the PDVA.

We are also satisfied that the findings that Z.H. assaulted plaintiff on the evening of December 26, and that this assault was an act of domestic violence is amply supported by the record. Our review of findings of fact by a judge sitting without a jury is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). As long as the factual findings are supported by substantial credible evidence in the record, we must accept those findings. Ibid. Moreover, we also defer to the findings of fact entered by Family Part judges due to their experience and training. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Here, the judge found plaintiff credible. Plaintiff's mother's testimony that she saw Z.H. punch plaintiff corroborated plaintiff's testimony.

Moreover, the record reflects that all of the parties intended to continue to reside in the same house. The judge found that Z.H. had destroyed property belonging to plaintiff and this act should be considered an act of domestic violence. She also found that Z.H. and his former wife were both alcoholics, and their consumption of alcohol influenced their combative behavior. Therefore, future acts of domestic violence were likely to occur as long as the parties resided in the same house. These facts sufficiently support the decision that an FRO was necessary to protect plaintiff from further acts of domestic violence.

It also seems that Z.H.'s argument concerning the need for a restraining order is founded on his long residence in plaintiff's mother's house and his provision of financial support to that household. These facts do not obviate the need for protection of a more recent occupant of the house. Furthermore, plaintiff's mother remains the owner of the house and retains the right to invite or exclude persons who may reside in her home, subject to the terms of the FRO excluding Z.H. as long as plaintiff resides in the house.

Affirmed.


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