On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-0239-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 1, 2011 -
Before Judges Espinosa and Kennedy.
Plaintiff sought a restraining order against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, alleging that he had committed the predicate acts of sexual assault, N.J.S.A. 2C: 14-2(c)(1), by penetrating her anally and vaginally; assault, N.J.S.A. 2C:12-1(a)(1), by bruising her arm; and harassment, N.J.S.A. 2C:33-4. The trial judge credited defendant's testimony that the parties engaged in consensual sex. However, after finding that defendant committed the predicate act of assault by "recklessly" penetrating plaintiff anally and by bruising her arm, the judge entered a final restraining order (FRO). Defendant appeals from the entry that order. For the reasons that follow, we reverse.
On November 16, 2010, plaintiff filed a domestic violence complaint against defendant, stating that the two had a dating relationship and alleging that he had committed the predicate acts of sexual assault and harassment. Plaintiff described the sexual assault as follows:
On Saturday November 13, 2010 at around 10:00 PM the defendant while watching TV on a downstairs couch with the defendant Victim was grabbed and forced on her back on the couch. Victim resisted. Defendant held her down by the wrists. He then forcefully penatrated [sic] her vaginal area. Due to victim having a tampin [sic] applicord [sic] the defendant stopped. Victim then tried to run but was caught on her stairs near the front door. He then forced himself on victim again and penatrated [sic] her anus.
He then took victim to bedroom where incident ended.
Plaintiff also stated that there had been a prior act of domestic violence one year earlier, "Forced Sex - Aggressive Sex." A temporary restraining order was issued. The matter was scheduled for a hearing, which was adjourned so defendant could obtain counsel.
On December 20, 2010, plaintiff amended her complaint to include additional allegations. She stated that in the predicate act of domestic violence described in the original complaint, she had suffered an injury, "specifically a bruise to my right arm between the shoulder and the elbow," and therefore the criminal offense of assault, which was not initially alleged, had occurred. In addition, she amended the complaint to include the following in the history of domestic violence:
A. In the summer of 2010 I became pregnant by D.S. When I told D.S. that I was pregnant and wanted to keep the baby, he became angry and insisted that I get an abortion. Sometime either at the very end of July or in early August 2010 there was an incident where D.S. was pressuring me to get the abortion, and I was refusing. When I turned to walk away D.S. grabbed my arm in anger, causing bruises on it.
The hearing was conducted over the course of four days. In a detailed oral opinion, the trial court noted that the parties' versions of the predicate acts and prior history were "diametrically opposed," making its determination as to credibility a threshold issue.
The parties had an on-again, off-again dating relationship that began in October 2009. Plaintiff resided in Flemington with her children. Defendant moved to Connecticut in April 2010 but frequently returned to Flemington for business. The court described their relationship as "highly sexual in all respects."
Plaintiff testified that the last time she was physically intimate with defendant was October 31, 2010. She sent him a text message on October 31 at 4:04 a.m., accompanied by a photograph that defendant testified depicted the two of them having sexual intercourse. On the following day, plaintiff texted defendant a photograph of female genitalia, accompanied by graphic, sexually explicit commentary. Plaintiff sent a second photograph of an anus and female genitalia to defendant on that date.
Plaintiff advised defendant by text message on November 4 that she was ending their relationship. She testified that she wanted a more meaningful relationship.
Nevertheless, during the period between November 4 and 13, plaintiff continued to text defendant and to send him graphic sexual photos. She testified that in one text, she told him that Chris, a woman she "had recently become reacquainted with was proposing sexual relationship with myself and possibly [D.S.]" She stated defendant did not believe her so she told him she had "a picture that will prove what [she's] saying." Then, on November 10, she sent defendant a picture of her friend's face and "rear end." Plaintiff testified that it was not unusual for the parties to send each other things of a sexual nature.
During this same period, plaintiff wished defendant a happy birthday and also told him she was concerned she was pregnant but that he did not need to worry because she did not want him involved.
On November 13, there was a series of text messages between the parties. Bluntly summarizing their content, defendant wanted to have sex with plaintiff and plaintiff declined. She agreed to let him sleep at her house "but that's it." She followed that up with a text message asking him to bring a salad and a bottle of chardonnay.
Defendant arrived at plaintiff's home at approximately 7:30 p.m. with the salad and wine. The two were in the family room, watching television and "hanging out." Defendant had been sick for about a week and had a bad cough. Plaintiff got some Vick's from the bathroom and asked him if he would like her to put it on his chest. Plaintiff was wearing a tank top and flannel pajama bottoms. In her testimony, she volunteered that she was not wearing underwear.
At approximately 10:00 p.m., defendant patted the couch next to him and asked plaintiff to come sit beside him. She did so. Plaintiff stated, "then[,] the next thing, [she] was on [her] back" and defendant was on top of her. He grabbed her arms and put them over her head, holding them with one hand while he used his right hand to pull her pajama bottoms down. She said he was trying to kiss her; she told him to stop and started crying. Plaintiff said defendant pulled his pants down and used his right knee to spread her legs apart. She stated "he penetrated [her], vaginally." She went to the bathroom and decided to run up the stairs to get away from defendant. Plaintiff testified that defendant grabbed her by her leg as she went up the stairs and pulled her back down. She stated that defendant penetrated her anally and she screamed.
Plaintiff interrupted her testimony to return to that part of the assault that occurred on the couch. She added that defendant had grabbed her biceps and squeezed her, shook her and told her to stop crying, causing her arm to bruise. On cross-examination she testified that she was seeking a restraining order for everything that occurred but ...