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B.B v. M.B


April 4, 2012


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.



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.


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 would feel like to be like you.

Martin's obsession with Brenda was further confirmed in other documents he acknowledged writing.

The trial court found Brenda more credible than Martin in that her testimony was clear, specific and unwavering. As to Martin, the court expressed "serious concerns" as to his credibility because of the false statements he made to Falcicchio about the location of the Kel-Tec. The judge found that Brenda had established harassment and terroristic threats by a preponderance of the evidence and that under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), she was in need of protection to prevent future acts of domestic violence.


On appeal, Martin challenges the sufficiency of the evidence and argues that his conduct did not amount to harassment or terroristic threats as found by the trial judge. As to these issues, our review is a narrow one and the findings of the trial court will not be disturbed unless we are convinced that they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998). We defer to the fact findings of family judges in light of their expertise. Id. If we are satisfied that sufficient credible evidence supported the judge's decision, we will affirm. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Martin also claims for the first time on appeal that the testimony as to his cross-dressing was so prejudicial and inflammatory that he was denied a fair trial. He acknowledges that there was no objection to this line of questioning at trial and for that reason, we review his claim under the plain error standard. R. 2:10-2; State v. Walker, 203 N.J. 73 (2010). As to this issue, the decision below will not be reversed unless the alleged error was "clearly capable of producing an unjust result." Walker, supra, 203 N.J. at 89. We address the plain error question first.

Defendant claims that the cross-dressing evidence was irrelevant, prejudicial and inflammatory and had nothing to do with the charges in the complaint. However, Brenda testified to a prior act of domestic violence that occurred only a few weeks before the February 21 incident that emanated from an argument over Martin's cross-dressing:

But in December we had a very big argument about his cross-dressing and he told me it was just clothes, that I should just accept it and it's not going to go away. And he told me if I told anybody -- because he knew I was looking to get a divorce. And he said if I told anybody he would blow my head off.

And then he shoved me into the door case and he said oh, I'm sorry. I didn't see you there.

Under N.J.S.A. 2C:25-29, the trial court was required to consider any prior history of domestic violence between the parties. Cesare, supra, 154 N.J. at 402 (observing that the PDVA requires court to consider prior history, if any, of domestic violence). Recently, our Supreme Court referred to a trial court's obligation to consider prior acts of domestic violence as a "statutory command." J.D. v. M.D.F., 207 N.J. 458, 479 (2011).

The testimony that Martin had threatened to kill Brenda on a prior occasion, only a few weeks before the charged incident, was clearly relevant and admissible even if it contained salacious details of the parties' relationship or embarrassing revelations as to Martin's proclivities. Moreover, the trial court placed the evidence in proper perspective, noting that while "it's certainly not a crime to cross-dress," the defendant's credibility was "drastically questioned" when his testimony about cross-dressing was contradicted by his own writings.

Nor did the cross-dressing testimony form the primary basis for the trial court's credibility ruling, as claimed by appellant. The judge found that Brenda was "specific" and "unwavering" as to the events of February 21, 2011, and Martin's testimony amounted to a general denial of the allegation without "any specific testimony with regard to the events of February 21." Moreover, the trial court placed more emphasis on Martin's misrepresentations to Falcicchio than any other part of his testimony:

The police officer from Blairstown, Detective Falcicchio testified that he specifically asked the defendant where . . . this Kel Tec pistol was. That they were looking for it. The detective said that the defendant was cooperative and that the defendant told the detective that the gun was in the basket. The gun was not in the basket. The gun was in the garage as the defendant admitted. And the defendant admitted that he removed the gun from the car and he put it in the garage.

He did that before he spoke to the detective and told the detective repeat--I believe on more than one occasion that the gun was in the basket. So to say that the defendant was forthright and honest in telling the detective that the gun was in the car through his mother--I'm sorry, in the garage through his mother relaying that a week later is not clearly how it played out.

He initially said the gun was in the basket.

There's serious concerns with regard to defendant's credibility on that alone.

We discern no abuse of discretion or misapplication of the law by the Family Part judge in this case. The remaining arguments advanced by Martin, including his claims addressed to the sufficiency of the evidence, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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