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R.I v. J.I

October 17, 2012

R.I., PLAINTIFF-RESPONDENT,
v.
J.I., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-2472-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 20, 2012

Before Judges Fuentes, Grall and Ashrafi.

Defendant J.I. appeals from a final restraining order on a complaint her husband, plaintiff R.I., filed pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Plaintiff alleged simple assault, N.J.S.A. 2C:12-1(a)(1), harassment, N.J.S.A. 2C:33-4, and terroristic threats, N.J.S.A. 2C:12-3.

A final restraining order may issue only if the judge finds that: the plaintiff and the defendant have a relationship bringing the conduct within the Act, N.J.S.A. 2C:25-19a, -19d; defendant committed an act designated as domestic violence, N.J.S.A. 2C:25-19a; and the "'restraining order is necessary . . . to protect the victim from an immediate danger or to prevent further abuse,'" J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006) and discussing N.J.S.A. 2C:25--29b).

The judge determined that J.I. assaulted her husband but did not clearly articulate the factual basis for that determination or address the need for the restraining order. For that reason, we remand so the judge may amplify and clarify the findings of fact and legal conclusions in conformity with Rule 1:7-4 and this decision.

Plaintiff and J.I. married in 2001, and they have three children, who were eight, seven and four years old when plaintiff filed a complaint for divorce in May 2011. Although they had discussed divorce, plaintiff did not tell J.I. he filed the complaint until the Monday following Father's Day 2011.

Plaintiff took off from work that Monday, went to McDonald's and brought home iced-coffee for defendant. Their youngest child was home, but the older two were at school. He put a digital audio recorder in his pants pocket and asked J.I. to come outside with him. After a lengthy conversation, plaintiff told J.I. that he had filed a complaint for divorce a month earlier. During the episode that followed, plaintiff activated and deactivated the recorder.*fn1

Plaintiff gave the following account of J.I.'s reactions to his announcement. She became irate, called him coarse names, and grabbed their four year old from the steps leading from the lawn and three foot patio to the kitchen door. Plaintiff tried to follow, but J.I. "slammed the door on [him]," and he fell back a couple of steps. J.I. then grabbed a "whisk" from the kitchen, causing him to back down, stumble and ultimately slip on the dewy grass. As he got up from the grass, J.I. threw her iced-coffee at him. She then hurled plastic bottles containing lawn-care products and a flower pot in his direction. He knocked the flower pot down, but it hit him in the legs. The other items passed by. Next, J.I. took a sponge mop near the kitchen door, swung it like an axe and hit plaintiff in the arm, bending its aluminum staff. As J.I. left and walked toward the house, plaintiff called 911. One of the two responding officers noticed a broken mop in the yard.

Although plaintiff's arm showed no sign of injury when the police arrived and plaintiff told them that he was not in pain, a bruise was visible the following day. Plaintiff produced a photograph of that bruise.

Plaintiff's testimony also included an account of prior marital discord that led him to fear J.I. and for her safety and that of their children. On Father's Day, the parties had argued about his smoking, and during that conversation, J.I. told him she was contemplating a car accident that would take her own life. In May, plaintiff returned home after spending several hours with J.I.'s father. They argued, and J.I. dumped a bottle of ginger ale on him. While he cleaned up the soda, she went to the kitchen to cut up strawberries for one of their children. The argument continued, however, and J.I. followed plaintiff around pointing "the small paring knife at [him]."

Plaintiff explained that he called the police after the Father's Day incident - but not before it - because this was the first time that J.I. "actually did physically hit [him]." He further explained that he delayed telling J.I. he had filed for divorce because she had lost her grandmother and ...


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