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S.K v. K.K

March 9, 2012

S.K., PLAINTIFF-APPELLANT,
v.
K.K., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-000957-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 15, 2012 -

Before Judges Payne and Accurso.

Plaintiff appeals from a final judgment denying entry of a restraining order she sought against her husband pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.

Plaintiff and defendant were married in 1990. They have four teenage children. Plaintiff filed her first domestic violence complaint on November 5, 2009, alleging that defendant verbally harassed her after she confronted him about driving drunk with their daughter and her friends in the car. In that complaint, plaintiff alleged that defendant had been verbally abusive in the past, told her that he wished she would die in a car accident and had, on one occasion, punched a hole in a wall. Plaintiff testified that she dismissed the ensuing temporary restraining order, before defendant was even served, in the hope that defendant would get the help he needed and they could salvage their marriage.

Several weeks later, on December 11, 2009, plaintiff obtained another temporary restraining order against her husband arising out of a significantly more serious incident. Plaintiff testified that she had been out late with friends on the evening of December 10, 2009 and had returned home to find defendant already asleep in their bed. After plaintiff changed clothes and got into bed, defendant suddenly threw himself on top of her. Plaintiff wrested free and told defendant, "I'm never going to be with you again. It's over." Defendant then attacked her, straddling her to hold her down while covering her mouth with one hand and pulling off her clothes with the other.

Plaintiff suffered a bloody nose in the struggle. The couple's children were awakened by plaintiff's crying and discovered their parents in their bathroom, their mother bruised and crying with a bloody nose and their father trying to clean up the blood on the floor.

Plaintiff received a temporary restraining order against defendant the following day. Defendant was also criminally charged with second degree attempted sexual assault, third degree criminal restraint and simple assault. Defendant pled guilty to simple assault and was sentenced to one year of probation. A complaint for divorce was filed on January 26, 2010, and the parties entered into a consent order for civil restraints the same day. The consent order provided plaintiff with exclusive possession of the marital residence. Defendant was entitled to access at mutually convenient times to retrieve his belongings and make any necessary home repairs. The parties also agreed that the children would remain with their mother with defendant to be accorded reasonable and liberal parenting time. Upon entry of the consent order for civil restraints, plaintiff dismissed the temporary restraining order.

The events giving rise to this appeal occurred fourteen months later. On April 5, 2011, defendant picked up the parties' son at his SAT class at 9:15 p.m. and drove him to plaintiff's home, the former marital residence. Defendant had been late picking up the boy and testified that his son had been angry and upset on the drive home. When they pulled into the driveway, there was a pickup truck parked there. The truck belonged to a male contractor friend of plaintiff's who was doing some work inside the house. The boy got out of the car and slammed into the house, ignoring his father who wanted to continue their discussion. Defendant testified that he remained in the driveway attempting to contact his son on his cell phone.

When some time later, plaintiff started to walk her contractor friend out through the door opening into the garage, she was startled to find defendant there. Defendant screamed loudly at the two of them and they quickly shut the door. Plaintiff testified that defendant was "ranting and raving like a lunatic," yelling "[y]eah. I'm fucking here. Yeah. I'm fucking in here. Come out. . . . I'm going to fucking kick your ass." The parties' son finally went out into the garage and convinced his father to leave. Plaintiff testified that she was afraid and that the altercation left her crying and shaking and ready to pass out from chest pains. When the contractor left shortly thereafter, he noticed defendant driving back toward the house. Defendant remained on the street but finally sped off without returning to the house.

Plaintiff filed a domestic violence complaint the following day alleging criminal trespass and harassment, which was later amended to include stalking. The court entered a temporary restraining order and the matter was set down for final hearing. After hearing three days of testimony, Judge Critchley dismissed the criminal trespass and stalking allegations, reasoning that the civil restraining order allowed defendant to come to the property to pick up and drop off the children, which was what defendant was doing when the altercation ...


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