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A.T v. M.V.L

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 15, 2012

A.T., PLAINTIFF-RESPONDENT,
v.
M.V.L., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1373-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 4, 2012

Before Judges Ashrafi and Fasciale.

Defendant M.V.L. appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered on January 5, 2011, after trial. We affirm.

Plaintiff A.T. filed a domestic violence complaint on December 21, 2010, by which she alleged defendant had assaulted and harassed her in the middle of the night on October 3, 2010, causing physical injury to her face and body. Plaintiff also alleged several prior incidents of violence against her as indicating a history of domestic violence in the parties' dating relationship.

Trial began before Judge Mary Thurber on December 28, 2010, and was concluded on January 5, 2011. Plaintiff and defendant were the only witnesses. Both parties were represented by attorneys.

Plaintiff testified that she and defendant worked for the same employer. Defendant was in a management position above her. They had become involved in a dating relationship for several years. On October 2, 2010, plaintiff and defendant spent the day together and consumed alcohol during their activities. After midnight, they were in bed together at defendant's residence about to engage in intimate relations. Defendant became angry and retrieved a shotgun in its case from a closet. Plaintiff testified that defendant pointed the gun case at her and threatened her. She tried to take the shotgun case away to prevent defendant from using the weapon against her. The two fought, and defendant struck her in the face, neck, and chest with the butt of the shotgun still in its case. She testified that he pinned her down on the bed and punched her in the face. She stated her jaw was dislocated, and she suffered bruises on her body.

According to plaintiff, defendant then left the room with the shotgun, also taking her cell phone. When she tried to use the house phone, defendant pulled the cord out of the wall. She got out of the apartment and sought help at the door of a neighbor. Plaintiff testified that defendant grabbed her and tried to drag her away until neighbors and others came outside and rescued her from defendant. The neighbors called the police, who arrested defendant and filed criminal charges of assault. Plaintiff was taken to a hospital and received medical treatment for her injuries.

Plaintiff also testified about prior incidents of violence and harassment by defendant, including throwing and breaking a ceramic bowl, throwing an object through her window on another occasion, and yet a third incident when he was removed from a restaurant because he grabbed her shoulder in anger. She also testified that he would intimidate her when angry by "getting in her face," and that he would terrify her by driving very fast and recklessly to display his displeasure with her. She testified that she was frightened by him and needed a restraining order for protection.

Counsel for defendant cross-examined plaintiff at length both about the circumstances of the underlying incident on October 3, 2010, and about the delay of some eighty days, until December 21, 2010, before she filed a domestic violence complaint against him. Plaintiff admitted that she allowed defendant to come into her home on the evening after his arrest and they ate dinner together. During the following week, they saw each other several times and went out together for dinner and other social activities. Although they agreed to end the relationship on Columbus Day (October 11, 2010), they continued to communicate frequently by email and a few times by text message. Counsel suggested by his cross-examination, and later argued, that plaintiff was not in fear of defendant and filed the domestic violence complaint only out of spite to harm him at their place of employment.

On redirect examination and in rebuttal testimony, plaintiff explained that she declined opportunities to file a domestic violence complaint against defendant immediately after the incident and in the ensuing weeks because she was afraid that he would cause her to lose her job. She stated that the emails between the two concerned her medical expenses for the injuries he had caused, and that defendant agreed to reimburse her for any expenses that were not covered by insurance. She testified that she received domestic violence counseling in the weeks after the incident and eventually gathered sufficient confidence to file the complaint.

Defendant testified and disputed parts of plaintiff's version about the incident of October 3rd. He said that the two had spent the day socializing and drinking heavily. That night, he became angry because she wanted to call a male friend. He took her cell phone into another room to prevent her from calling the friend. When he returned to the bedroom, she was holding the shotgun case. He fought with her to take the gun away, and she may have been struck accidentally during the struggle. He denied pointing the gun at her or punching her. He admitted that he had unplugged the house phone to prevent her from calling the male friend, and he explained his actions outside the apartment as his attempt to prevent her from causing a commotion and waking the neighbors. Defendant also denied that he had any authority over defendant's employment and indicated that he was "petrified" that people at his job had learned of the incident.

In her decision, Judge Thurber stated that she did not believe defendant's version of the incident. She found that defendant had seriously assaulted plaintiff, causing injury to her face and body. She considered the assault and subsequent actions of defendant to be acts of purposeful domestic violence that endangered plaintiff's physical safety. The judge also found that the prior acts of violence, intimidating conduct, and harassment as described by plaintiff contributed to her reasonable fear of defendant and need for a restraining order.

As to the delay in filing the domestic violence complaint, the judge concluded that plaintiff needed time to "extricate herself from this relationship safely," and therefore, she proceeded "cautiously." The judge concluded that the delay did not mean that plaintiff was not afraid of defendant and did not need an order for her protection.

The judge entered a final restraining order on January 5, 2011, prohibiting contact and communication, including at the parties' place of employment, and also requiring that defendant pay $1,500 in attorney's fees to plaintiff and compensate her for medical bills arising from the assault. The court recognized that defendant had already paid $1,600 toward plaintiff's medical bills.

On appeal, defendant argues that the judge erred in her conclusions because plaintiff's conduct after the incident of October 3rd indicated that she had no fear of defendant and did not need a restraining order against him. He argues that she filed the domestic violence complaint only because she was dissatisfied that defendant would receive no greater punishment than a fine as a result of the assault charges being prosecuted in the municipal court, and she was motivated by a desire to harm him by causing him to lose his job.

A judge considering a domestic violence complaint has a "two-fold" task: first, the judge "must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred[,]" and second, "whether the court should enter a restraining order that provides protection for the victim." Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006); see Cesare v. Cesare, 154 N.J. 394, 400 (1998).

In a domestic violence case, the standard of review on appeal is very deferential to the trial judge's findings of fact and the conclusions of law based on those findings. In Cesare, supra, 154 N.J. at 413, 416, the Supreme Court placed trust in the "expertise" of Family Part judges to assess evidence of domestic violence and the need for a restraining order. Regarding the function of the appellate court, the Supreme Court held:

[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] 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.' [Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974))].

Past acts of domestic violence must be considered in determining whether a final restraining order should be entered. N.J.S.A. 2C:25-29a(1); Cesare, supra, 154 N.J. at 401-02. Whether a restraining order should be issued depends on the seriousness of the predicate offense, see Cesare, supra, 154 N.J. at 402, on "the previous history of violence between the plaintiff and defendant including threats, harassment and physical abuse," and on "whether immediate danger to the person or property is present[,]" Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); accord Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995).

Here, the trial judge heard the testimony firsthand and observed the parties. As the Supreme Court said in Cesare, supra, 154 N.J. at 413, 416, the trial judge is in a better position than we are to determine whether the evidence proves the predicate offense and the plaintiff's need for a restraining order. Plaintiff's attorney presented evidence of email communications from defendant to show that he had taken responsibility for causing plaintiff's injuries and thus corroborating plaintiff's version of the assault. The judge made credibility determinations and found without any equivocation that the evidence proved serious acts of assault causing injuries to plaintiff.

The court also accepted plaintiff's explanation for not immediately seek a restraining order and for the contacts she had with defendant after his arrest. Plaintiff testified that she was apprehensive about losing her job and only through counseling gained the resolve to file a complaint against defendant. The judge concluded that plaintiff had ample reason to fear defendant and the delay did not prove otherwise.

We find no basis to disturb the judge's conclusions in accordance with Silver, supra, 387 N.J. Super. at 125-26, that defendant committed an act of domestic violence and that plaintiff was in need of protection.

Affirmed.

20120615

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