On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-312-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
Defendant J.C. appeals from a final restraining order (FRO) entered against him and in favor of plaintiff C.L. based on a finding of the predicate act of assault under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. In part, he challenges the record as insufficient to support the offense and to warrant the issuance of restraints under the Act. We agree and reverse.
The parties have lived together, unmarried, for thirty years. They have three sons together, J.C., Jr. and D.C., who are emancipated, and B.C., who was seventeen at the time. Defendant owns a home in Camden, where the family lived at the time of the events, as well as its adjacent row or twin house.
On July 3, 2011, plaintiff observed defendant at a supermarket in the presence of another woman, angrily approached him regarding suspected infidelity, and a confrontation ensued, continuing at the family residence. That evening plaintiff filed and was granted a temporary restraining order (TRO) based on the offense of assault and the allegation that defendant "grabbed her under her arm and threw her on the floor of their house. She state[d] she ha[d] bruises on arms."
The court convened the final hearing on July 12, 20ll, but dismissed it when plaintiff did not timely appear. The next day the court reopened the proceeding and held a hearing.
Both parties were self-represented. They testified, as did their son D.C. Plaintiff testified that she and D.C. went to a ShopRite in Cinnaminson. While D.C. waited in the car, she went into the store and ran into defendant shopping with another woman. Plaintiff approached and confronted defendant, accusing him of cheating on her. Plaintiff testified that defendant then "grabbed me through my neck, he tightened my arm, he pushed me, he took me all the way out from the ShopRite . . . to . . . the parking lot." She estimated he held her for three to five minutes. Plaintiff testified she called for help and D.C. came out of the car and told defendant to take his hands off her. Plaintiff claimed that at one point, "[she] fell to the ground." Plaintiff testified that defendant kept pushing them away and told D.C. to take them home. Plaintiff and D.C. eventually got in the car and left.
According to plaintiff, when defendant returned to the house shortly afterwards, a dispute broke out between one of their sons and defendant in the living room. Her son was telling his father to leave the house, but he refused. Plaintiff testified she "got inside the middle" of the fight at one point, at which time defendant "grabbed" and "shook" her and "threw [her] against the floor." Plaintiff then ran out of the house and asked a neighbor to call the police.
D.C. testified that his uncle and his young nephew were also present with him and his mother at ShopRite that day. He stayed in the car while the others went into the store. When he heard his mother shouting "help" and calling his name, he got out of the truck and saw his father pushing his mother away from the supermarket after defendant. D.C. testified that his mother told him she found his father cheating on her with another woman and his father asked them to go home because he "[didn't] want any problems." Plaintiff repeated that she could not believe he was cheating on her and she ran back into the supermarket after defendant. D.C. followed her and observed her confronting defendant, who was standing with a woman and children and packing a grocery cart, after which defendant grabbed her and pushed her out of the store. D.C. then confronted defendant about his infidelity, and defendant got into his car with the woman and children.
D.C. explained that they returned to the house, where they met his aunt and his younger brother. D.C. told plaintiff to call the police because she had "marks" on her, but she refused. Defendant then came over, D.C. ordered him to leave, defendant picked up the phone to make a call, and D.C. took the phone from him. Plaintiff then approached defendant, telling him "to be honest." According to D.C., defendant then tightly grabbed plaintiff's hands and pushed her to the floor. Plaintiff got away and ran outside. The police arrived shortly afterwards, and plaintiff and D.C. went to the police station, where plaintiff obtained a TRO. D.C. showed the judge pictures of plaintiff's bruises that were taken on B.C.'s cell phone.
Defendant testified that he was shopping with a woman friend, and later admitted after extensive questioning by the court that he was romantically involved with her. He stated that when plaintiff confronted him he did not grab her, but "put his hands around her, and [he] walked her out through the store" to the parking lot because he "[didn't] want any conflicts." Defendant then saw his son D.C., who had gotten out of the car, and asked him to take plaintiff home and he would talk to her when he got home. Defendant explained that plaintiff followed him back inside the store and confronted the other woman, after which defendant took plaintiff back out to the car. He said D.C. then confronted him and while they were arguing, he realized his nephew was crying in the car so he left and walked back into the store. Defendant observed plaintiff's brother walking out of the store, getting into the car, and the family driving away. Defendant testified he did not see plaintiff fall outside of the ShopRite.
Defendant's explanation of the encounter at his home was also slightly different. When he entered, his oldest son J.C., Jr. was ready to beat him up. Everyone was trying to hold J.C., Jr. back but he broke free and pushed plaintiff, causing her to fall. Defendant testified he tried to reach the phone to call the police, but D.C. knocked it out of his hand and J.C., Jr. punched him in the face. Defendant reported that he grabbed his cell ...