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M.V v. K.R


March 22, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1285-11.

Per curiam.



Submitted March 13, 2012

Before Judges Reisner and Simonelli.

Defendant K.R. appeals from a January 24, 2011 final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. After reviewing the record, we conclude that the trial judge's decision was supported by sufficient credible evidence, and we affirm.

On January 18, 2011, plaintiff M.V. applied for a temporary restraining order (TRO) alleging that defendant, her domestic partner, had committed domestic violence on the previous evening, by physically assaulting her, threatening her and harassing her. The application asserted that for the past two years, defendant had been having "episodes of rage" in which she verbally abused plaintiff and physically threatened her. A TRO was entered, and a final hearing was held on January 24, 2011.

According to plaintiff's testimony at the FRO hearing, she and defendant had an eleven-year relationship and had been living together for several years. However, as of January 2011, the relationship was ending and on the evening of January 17, defendant announced that she was moving out of the house. The couple began dividing up their household belongings but got into an argument during which defendant grabbed plaintiff's cell phone and pushed her into the wall, causing plaintiff to fall to the floor and suffer bruises. Plaintiff attempted to call the police from the house telephone, but defendant blocked her way by swinging her cane at plaintiff. Because defendant still had possession of her cell phone, plaintiff, dressed only in pajamas and barefoot, ran to the next door neighbor's house and called 9-1-1. Plaintiff testified that when the police arrived, defendant initially refused to return her cell phone, and then returned it without the battery, until the police insisted that defendant return the battery as well.

Plaintiff also described a past history of jealous and harassing behavior by defendant, including following plaintiff around the house blocking her way, verbally taunting her, locking her out of the house in the winter, throwing her clothes on the floor, and deleting the entire contents of her laptop computer. Plaintiff testified that she had called the police to the house previously, although she had not previously applied for a restraining order. She testified that, as a result of defendant's repeated harassing conduct, she took her house keys with her whenever she went outside. When the two women were home, plaintiff would "retreat[] to . . . one small bedroom" and allow defendant to occupy the rest of the house.

On the other hand, defendant testified that during the January 17 incident, plaintiff was the aggressor. She testified that plaintiff shoved her, causing bruising on her arms. However, she admitted that she did not show the bruises to the police when they arrived on January 17. Defendant also insisted that she did not refuse to give back plaintiff's cell phone and that the battery fell out of the phone during their tussle. Defendant also accused plaintiff of prior harassment, including throwing all of defendant's clothing on the floor.

In rebuttal, plaintiff showed the judge her cell phone, contending that it was constructed in such a way that the battery could not simply fall out if the phone were dropped.

In an oral opinion, the judge found "the plaintiff's testimony to be more credible than that of the defendant." He credited plaintiff's specific description of the incident with the cell phone. He also found that "defendant assaulted the plaintiff." He stated, "I believe that the defendant pushed the plaintiff into the shelving, causing her to fall, causing the pieces from the shelf to fall. I find that the [offense] of . . . simple assault has been [proven] . . . by a preponderance of the evidence." See N.J.S.A. 2C:12-1a. In entering the FRO, he ordered that the police be present when defendant was admitted back into the house for the limited purpose of collecting her belongings and moving out.

On this appeal, it is not our role to decide the case over again from the beginning. Rather, we must defer to the trial judge's factual findings as long as they are supported by sufficient credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe particular deference to the trial judge's credibility findings. Id. at 412.

Defendant argues that the judge's credibility findings were erroneous and his decision is not supported by the evidence. We cannot agree. We have read the trial transcript and we find that it supports the judge's decision. There is nothing in the record that convinces us that the judge's findings were "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of North Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

There was sufficient evidence to establish that defendant committed an act of simple assault on plaintiff. N.J.S.A. 2C:12-1a. Simple assault is one of the predicate acts on which a violation of the Act may be based. N.J.S.A. 2C:25-19a(2). Because the judge found plaintiff's testimony credible, there was also sufficient evidence in the record to support an inference that defendant's conduct on this occasion was part of a pattern of "abusive and controlling behavior," such that a FRO was required to protect plaintiff from future domestic violence. Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995); see Cesare, supra, 154 N.J. at 415-16; N.B. v. T.B., 297 N.J. Super. 35, 40 (App. Div. 1997).



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