On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-923-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2012
Before Judges Simonelli, Accurso and Lisa.
The opinion of the court was delivered by ACCURSO, J.S.C. (temporarily assigned).
Plaintiff, J.D., appeals that portion of a domestic violence final restraining order entered on her application against her husband, defendant M.A.D., granting him exclusive possession of their marital home and temporary custody of their two children. Because that order denied the victim of domestic violence temporary custody of her children, contrary to the statutory presumption contained in N.J.S.A. 2C:25-29b(11), and restrained her from her home without statutory authorization, we reverse.
These are the facts found by the trial judge. The parties had been married for nine years when these events occurred and had two children, an eight-year-old boy and a four-year-old girl. In 2005, defendant was diagnosed with a very serious illness for which he received extensive treatment. At that time, plaintiff, who had been at home with the children, went back to work, taking a job with the Post Office as a letter carrier to help support the family. By 2010, defendant had largely recovered from his illness. Although he was unable to work and was receiving Social Security disability benefits, he was able to care for the children, oversee their activities and coach their athletic teams.
On February 6, 2011, defendant learned that his wife was having an extra-marital affair. She was in the shower on a Sunday morning when defendant found a message from a man on her cell phone. Defendant angrily confronted her and demanded to know the identity of the man. The couple's children were present. As plaintiff struggled to hold onto the towel that she had wrapped around her, defendant pushed her against a wall in their bedroom and put his hands around her throat, demanding to be told the man's name. When the parties' eight-year-old son saw his father screaming at his mother and trying to choke her, he called 911.
The police arrived shortly thereafter. After learning what had transpired, they persuaded defendant to leave the residence to cool off. Plaintiff later left with the children for a family birthday party. She was called back home several hours later, however, by defendant's mother. When she returned, she found the dresser in her bedroom overturned and the drawers empty. Her closet was also empty and the mattress had been pulled off the bed. Defendant had taken her clothes, pictures, and jewelry and burned them in the backyard. After being discovered, he had gone willingly with the police to a crisis center for evaluation. He was released from the crisis center the following day and returned home a few days later.
When defendant returned to the residence, the parties discussed their future. Plaintiff expressed remorse over the affair and said that she did not want to leave, but wanted to stay and work through their problems. Defendant said that he needed space in order to try to forgive her and asked her to leave. On February 21, 2011, the couple signed a one-page agreement, whereby plaintiff agreed to leave and have the children stay with defendant as the primary custodial parent. Plaintiff would have the children every weekend and on her day off once a week. Plaintiff left the following day.
The parties disputed when plaintiff returned home and whether it was permanent or intermittent. Based on the testimony of both parties, the court found that plaintiff remained away for at least a month before returning to join the family for dinner or their son's baseball games, and that she eventually resumed relations with her husband and was living with him in their home on a more or less constant basis as they made efforts to reconcile.
In July, the parties attended a professional baseball game with their children. On the way there, the parties engaged in what the court characterized as "verbal sparring," which started when defendant spotted a motel where he believed his wife had conducted her affair and directed her to look at it. Although the court did not credit plaintiff's testimony that her husband grabbed her hair, and squeezed and held her hand next to his leg, defendant testified that he lifted her chin and pushed it towards the window in an effort to get her to acknowledge that she had stayed there. He further testified that he reached over and grabbed her hand and held it, explaining that he "wanted her to realize how much it hurts me. I wanted her to acknowledge it."
Although the judge did not include this incident among his findings of prior acts of domestic violence, because it did not rise to the level of an assault or harassment, we mention it here because it occurred in front of the parties' children. While the four-year-old was asleep, the couple's eight-year-old son was fully present and aware of the ...