On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-002434-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Kennedy.
Plaintiff appeals from an order entered April 1, 2011, vacating a temporary restraining order (TRO) and dismissing her complaint against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The trial judge, after several days of hearings, found that plaintiff had not proven by a preponderance of the credible evidence that acts of domestic violence had occurred. The trial judge also had "significant difficulty with the credibility of the plaintiff" and cited several inconsistencies in her proofs. For reasons expressed hereinafter, we affirm the order of the trial court.
Plaintiff contends the order dismissing the domestic violence complaint and vacating the TRO must be reversed because the trial judge imposed an "onerous standard of proof" upon her at the hearing and relied upon "legally discredited assumptions and stereotypes regarding domestic violence" in assessing the evidence. She adds that the trial judge also relied upon an "unauthenticated text message" in reaching his conclusions.
To put this matter in perspective, we briefly review the family relationship of the parties and the actions that preceded the filing of the domestic violence civil complaint by plaintiff on March 14, 2011. We will then review the evidence presented by the parties at the hearings on the complaint, as well as the trial judge's findings of fact and conclusions of law.
Plaintiff and defendant are unmarried adults and met in the Dominican Republic. They have three children, who were four, three and two years of age, respectively, at the time of the alleged incidents of domestic violence. At that time, plaintiff was twenty-one and defendant was forty years of age and lived with their children in Newark.
On December 12, 2010, plaintiff and her children left New Jersey and began residing with plaintiff's cousin in New York City. Defendant objected to this arrangement and on December 13, 2010, filed a custody complaint with the Family Part in Essex County. After speaking with plaintiff, he withdrew the complaint ten days later, apparently believing that plaintiff would shortly return to New Jersey.
Plaintiff, however, remained in New York and on January 26, 2011, filed a "Family Offense Petition" with the family court in New York alleging that on December 1, 2010, defendant "harassed . . . and hit [her] repeatedly on the back with a shoe in front of the children" and threatened to "throw [her] down the stairs." She also alleged that in 2007 defendant pulled her hair, causing her to fall, and hit her "on numerous occasions with a belt and telephone wire", adding that he "constantly threatens . . . bodily harm."
Defendant then filed a second custody complaint with the Family Part in Essex County on February 7, 2011, and the trial judge scheduled a hearing date for March 10, 2011. A temporary order of protection was entered by the family court in New York on February 9, 2011, barring defendant from contacting plaintiff. Plaintiff also filed a support petition against defendant in New York on February 22, 2011.
On March 10, 2011, plaintiff failed to appear before the trial judge in New Jersey, and defense counsel informed the trial judge of plaintiff's New York petitions and advised that the New York court had "adjourned both cases" pending a decision by the New Jersey court. The trial judge at first entered a bench warrant against plaintiff for failing to appear, but vacated that order later in the day after plaintiff responded to a telephone call from the judge and then appeared, claiming she had not been apprised of the pending court date or action.
With this procedural background, we turn to the domestic violence civil complaint at issue here and the hearings that followed. We derive the factual allegations from the testimony presented at the hearings.
On March 14, 2011, plaintiff filed a complaint against defendant claiming she had been assaulted, harassed and threatened by defendant on December 1, 2010, at 5:00 p.m. She indicated in the complaint that, "defendant hit her repeatedly on the back of the head with a shoe in front of their three children" and that he threatened to "throw [her] down the stairs." The typed addendum to the complaint listed the same prior acts listed in the New York petition and in a hand-written addition stated she was "hit" in 2009, called "ugly, crazy etc" in 2010, and "throughout 2007 to 2010, def[endant] engaged in several act[s] of forcible sexual conduct."
The trial judge entered a TRO against defendant on March 14, 2011, after hearing brief testimony from plaintiff. When asked if defendant had access to a weapon, plaintiff replied, "I saw him with a gun. He showed it to me, he threatened me with that once." Hearings on a final restraining order were then scheduled ...