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B.B v. M.B

April 4, 2012

B.B., PLAINTIFF-RESPONDENT,
v.
M.B., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FV-21-000475-11. James M. Porfido argued the cause for appellant.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 13, 2012 -

Before Judges Espinosa and Guadagno.

Defendant appeals from a March 17, 2011 final restraining order issued after trial under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (PDVA). For the reasons that follow, we affirm.

I.

The pertinent factual background may be summarized as follows. At the time of the allegations of domestic violence, plaintiff B.B.(Brenda)*fn1 and defendant M.B.(Martin) had been married eleven years and had two children, ages 14 and 12. Brenda testified that on February 21, 2011, after an argument, she told Martin that she wanted a divorce. Martin replied that divorcing him would be the biggest mistake she ever made and he would kill her and dump her body in a well in upstate New York where nobody would find her. He added that, if he used a slug gun, it would not be traceable back to him. Brenda took the threats seriously as Martin had ready access to numerous firearms in the home and had threatened her in the past. She left the home and went directly to the police station, where she obtained a temporary restraining order (TRO).

Brenda also testified that Martin had been obsessed with her for years but in the weeks leading up to the filing of her complaint his obsession had been "getting out of hand." She gave examples of Martin collecting her fingernail clippings and taking her hair out of her hair brush. She said Martin wrote his name on the tags of her clothing and that her underwear was found in his truck along with pictures of her that she described as "sexual" that had been taken without her knowledge.

She also claimed that Martin was "transgender" and that he frequently dressed in women's clothes. She described a recent argument they had over his cross-dressing, where he threatened to blow her head off if she told anyone about his penchant. On cross-examination, Brenda testified that Martin ordered estrogen that was mailed to their home and that "every single night" he would pick out her clothes for her to wear the next day, so he could match his clothing to hers.

Given the number of guns in the home and the nature of the threat, the municipal court judge who signed the TRO also issued a search warrant for the parties' home and vehicles to seize "[a]ny and all weapons belonging to the defendant." Plaintiff called Detective Falcicchio, one of the officers who responded to the parties' home to conduct the search. Falcicchio testified that the police seized twenty-five weapons along with ammunition and magazines.

One weapon, a Kel-Tec handgun, could not be found. Brenda described it as Martin's favorite weapon that he always carried when he left the home. Martin told Falcicchio the Kel-Tec was in a basket by a door, but Falcicchio testified that he and another officer were unable to find the gun. After Martin was arrested, the municipal judge set a bail condition requiring that all of Martin's weapons be returned to the police before he could be released. Falcicchio testified it was not until Martin realized he would not be released until the missing gun was recovered that police received a phone call from Martin's mother informing them the gun was hidden in the garage. The Kel-Tec was then found and seized.

Martin testified and admitted to dressing in women's clothes but maintained he did it at Brenda's urging as part of "kinky sex." He denied ever "physically or verbally" abusing Brenda but did not address the allegations of February 21 with any specificity. He initially testified that he purchased the estrogen for Brenda's use because she had complained of having small breasts but, on cross examination, acknowledged that he wrote to Brenda that the estrogen was for him:

My honest initial thought was that [the estrogen] would give me an idea of what it would be like - - of what it ...


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