On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-685-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 17, 2012 -
Before Judges Axelrad and Haas.
Plaintiff appeals from denial of a final restraining order (FRO) that she sought against her former boyfriend under the Prevention of Domestic Violence Act of l99l (Act), N.J.S.A. 2C:25-17 to -35. The court concluded plaintiff satisfied the predicate domestic violence act of harassment, N.J.S.A. 2C:33- 4c, but found she failed to satisfy the second prong of Silver v. Silver, 387 N.J. Super. 112, 125, 128 (App. Div. 2006), i.e., that a restraining order was necessary for her protection. Plaintiff challenges the court's failure to make any credibility assessments and specific findings on the second prong in light of her testimony regarding numerous physical assaults by defendant, and argues the record overwhelmingly supports a finding in her favor on that prong and the entry of an FRO. We agree and reverse and remand for entry of an FRO.
The parties were dating at the time of the assaults. Plaintiff obtained a temporary restraining order (TRO) against defendant on November 9, 2011, based on the predicate offenses of criminal mischief and harassment. The complaint alleged a prior history of domestic violence, stating that during the parties' three-year relationship, defendant assaulted her about six times causing various injuries. The complaint also listed a prior domestic violence proceeding -- "FV 01-1197-11 10/17/ll DISMISSED."
At the final hearing on January 11 and 31, 2012, both parties were represented by counsel. The parties testified. They also presented witnesses who testified about the predicate offense found by the court, which is not challenged on appeal. Plaintiff testified she met defendant in November 2008, and they began dating in early 2009. Plaintiff moved next door to defendant in Somers Point in February 2009. Their relationship became exclusive around March 2009, and ended in early 2011. Plaintiff testified at length about how during their relationship she was physically assaulted by defendant. The first assault occurred in June 2009. That day, the parties had entertained friends in their back yards. Later that night plaintiff was taking a shower at her house when she was startled by defendant. He forcibly pulled her out of the shower, down the stairs, twisted her arm, and screamed at her, demanding to know the location of her cellular telephone. During the assault, plaintiff was "totally nude, totally wet." The assault only ended when plaintiff was able to grab a telephone and dial 9-l-l for emergency police assistance. However, even as she was calling the police for help, defendant continued to assault her and knocked the telephone out of her hand.
When the police arrived, plaintiff refused to press charges or pursue a TRO. Instead, she rationalized that the assault was not representative of defendant as he had consumed prescription pain medication and mixed it with alcohol prior to the incident. Although plaintiff had endured pain and had a twisted knee, she chose to continue the relationship with defendant.
The second assault occurred in August 2009 at plaintiff's father's residence in Maryland. Defendant had objected to her taking his car to Starbucks. He tackled her, pushed her down, twisted her wrists, knocked the wind out of her, got her in a wrestling-type hold, and forcibly removed the car keys from her hand. Defendant had not been drinking that day but had been drinking the night before. Again, plaintiff attributed defendant's violent behavior to alcohol issues and did not call the police or seek a TRO.
The third assault occurred later in August 2009, when the parties were again visiting plaintiff's father in Maryland. Plaintiff related that the night before, defendant drank about thirty cans of beer and had given her elderly father a large amount of vodka. Plaintiff confronted him about the incident and an argument ensued, during which defendant shoved plaintiff and pushed her down. Plaintiff again suffered pain and injuries to her wrists and knee but did not call the police or seek a TRO. Rather, she remained in the relationship with defendant.
The fourth assault occurred in January 2010. Plaintiff had been paying for defendant's cable service, and she decided to stop. She went next door and asked him to return the two cable boxes to her. He handed her the first box without incident, which she took to her house. When she returned for the second box, he placed it on the stairs, and when she bent to pick it up, he picked her up and threw her out the door like a "bag of garbage[.]" Plaintiff landed on her instep on the top stair of the deck, and "rolled." She explained, "Oh, boy did it hurt." At the hospital, plaintiff learned she had "ripped the main supporting ligament of [her] left foot" and had a "lisfranc fracture." Her injury required surgery. As of trial, plaintiff was still "having issues with [her] foot." Plaintiff called the police and they got her cable box back. However, she did not file criminal charges or seek a TRO, and remained in the abusive relationship.
The fifth assault occurred in June 2010. Plaintiff was still wearing a boot on her foot as a result of the previous assault. As she was walking over the carpet in defendant's house she almost tripped, and when she pulled up the carpet she found a large sum of cash, precipitating an argument. Plaintiff testified that defendant shoved her to the ground and pushed her around.
The sixth assault occurred in December 2010. Plaintiff had agreed to pay for a cable box for defendant and his daughters over the summer. Since it was three months later than the agreed-upon period, plaintiff asked defendant to return the box to her and he told her to go over and "undo the box, [but] to be careful with the wires." While she was leaving with the box, defendant knocked it out of her hands, pulled her backwards, and pushed her down to the ground. Defendant then dragged plaintiff on the floor and pulled her back to a standing position. Defendant next shoved plaintiff against the door jamb, causing her to have trouble breathing, and then dragged and shoved her through the kitchen and family room to the front porch, continuously ...