On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1612-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2012
Before Judges Grall and Alvarez.
Defendant J.J.O. appeals from a final restraining order entered in favor of his wife, D.L.J.-O., under the authority of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Plaintiff has not filed a brief in response.
In her domestic violence complaint, plaintiff alleged that defendant committed an act of harassment, N.J.S.A. 2C:33-4, by kicking her in the leg and throwing a bag at her, "almost" causing her to fall down the basement stairs. Recognizing that we must accept factual findings of a judge of the family part that are supported by the record and defer to the judge's expertise, Cesare v. Cesare, 154 N.J. 394, 411-13 (1998), we reverse because the judge did not find that plaintiff proved harassment and because the record, viewed in the light most favorable to plaintiff and giving her the benefit of all reasonable inferences, does not permit a finding that defendant harassed plaintiff.
Plaintiff, defendant and one of the two officers who responded to plaintiff's call for assistance testified at the hearing on the final restraining order. One of the parties had filed a complaint for divorce when the judge conducted the hearing, but on this record it is not clear who filed that complaint or when that was done. Except as indicated in the following recitation of the evidence developed at the hearing, the facts are not disputed.
Plaintiff and defendant are married and have two children, ages three and five. When this incident occurred, the parties had been separated for a little more than a month after about six years of marriage.
At that time, defendant was living with his mother and worked nights, and plaintiff was living with the children and worked days. While plaintiff worked, defendant and his mother cared for the youngest child all day and for the older child when he was not at school. There is no evidence or allegation of any prior domestic violence, reported or unreported, in this family, and plaintiff admits that before this incident she did not have any reason to be concerned about her safety or the safety of the children in defendant's presence.
The incident took place on a Sunday evening. As arranged, defendant had picked up the children on Saturday morning and they stayed with him that night at his mother's home. That evening defendant called plaintiff and asked her to meet with him to talk about their marriage. Although she declined, she offered to have the conversation over the phone. He said, "never mind" and ended the call.
The following morning, defendant called to let plaintiff know that one of the children had a cough and suggested she pick the children up later than planned. Plaintiff agreed and said she would be there between 4:00 and 4:30 p.m. on Sunday; defendant thought she said between 3:00 and 4:00 p.m.
In any event, on Sunday plaintiff went to see her aunt, who was in the hospital, and she got caught in traffic on her way to get the children. At about 4:45 p.m., defendant called her and inquired about why she was late. According to plaintiff, he told her she could "f-around" with him but not their children, and he cursed at her, calling her particularly coarse names. When he placed a second call to apologize, she reports that she "called him an animal" and told him to "get off [her] back." He responded by calling her another foul name and ended that call.
Defendant later threw his cell phone and broke it. He was in his bedroom when he threw the phone, and there is no evidence that anyone else was present.
When plaintiff arrived at her mother-in-law's house and went to the side door, which opens to the kitchen, she heard one of the children screaming and defendant cursing and directing the children to get out of his house. By defendant's account, he was telling the children to go outside to their mother, and when she came to the door he was ...