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S.M. v. G.M.

Superior Court of New Jersey, Appellate Division

May 14, 2013

S.M., Plaintiff-Respondent,
G.M., Defendant-Appellant.


Submitted October 29, 2012

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-2345-11.

James N. Butler, Jr., attorney for appellant.

S.M., appellant pro se.

Before Judges Graves and Guadagno.


Defendant G.M. appeals from a final restraining order (FRO) entered on July 7, 2011, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. For the reasons that follow, we affirm.

Based on an incident that occurred on June 15, 2011, plaintiff S.M. filed a domestic violence complaint and received a temporary restraining order.[1] At trial on July 7, 2011, plaintiff testified she and defendant had been married for six years and had two young children. Plaintiff also testified they were "arguing all the time, " and on June 15, 2011, defendant began yelling and calling her names after he found money in her pocketbook that plaintiff's family had given her "for emergency situations."

According to plaintiff, defendant wanted to know where the money came from, because he had not given her any money, and he started calling her names and "lunging" towards her as if to "punch [her] on the face." Plaintiff testified:

[E]very time when he [did] that, you know, by reflex you go backwards. And then when I was doing that, he was calling me like, "You get scared, bitch, " and, "You are a sissy. Now you get scared, " this and that, all these names and stuff, and I'm a scumbag, that I'm not working and he is taking care of me, he is giving me money, this and that. Anyway, he was asking me all the time where I got the money. I told him . . . I got it from my family for emergency purposes . . . . So I was really, really scared when he is trying to punch me in the face, but he wasn't touching me until this point that he punched the refrigerator and broke the refrigerator's egg shelf with the eggs on it and everything was spilled on the floor. And when I see him doing this, you know, he is actually physically giving harm to the things around, I just . . . took off from the house, went to my neighbor to get her help to, you know, take the children out of the house because it's a very, very dangerous environment for me and for my children.

Plaintiff also described other acts of domestic violence and explained that she had dismissed a prior FRO, because defendant was attending an anger management program and she "wanted to give him another chance."

On the other hand, defendant denied he lunged towards plaintiff, threatened to punch her, or damaged the refrigerator. According to defendant, plaintiff called him "every name underneath the sun"; she threatened to call the police to get him "out of the house"; and she told him that she got the money "from her boyfriend." Defendant testified he "[n]ever ever put [his] hand on [plaintiff]."

The trial court found there was "a history of domestic violence" between the parties and concluded a FRO was necessary to prevent further abuse. The court's findings and conclusions included the following:

It is the court's finding that the plaintiff is credible and more forthcoming in this testimony. And I am satisfied that she has testified credibly that on June 15th there was a confrontation between the parties. Unquestionably the relationship here is volatile. She's admitted exchanging profanity one on one. There appears to be no question about that, but during these exchanges which degenerate into profanities according to the neighbor, it escalates. And the court finds as a matter of fact that it escalates where [G.M.] becomes physical . . . and I am satisfied that he lunged at her and in a threatening and gesturing manner attempting to punch or taunt her although not making physical contact. But that would be a violation of [N.J.S.A.] 2C:12-1 in that it was an attempt to cause bodily harm.
. . . .
The court had an opportunity to observe [G.M.] during the course of this trial who strikes the court as an individual who becomes easily agitated, anxious to prove his own position. And, in fact, the court observed during many instances he had to be restrained by his attorney or cautioned to exercise restraint. These are things that the court has had an opportunity to observe.

Defendant argues on appeal that there was insufficient evidence to support the trial court's decision. We do not agree.

The scope of our review is limited. A trial court's findings are binding on appeal when supported by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id . at 412 (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Such deference is particularly appropriate when the evidence is mostly testimonial and involves questions of credibility. Ibid. "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify, ' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (alteration in original) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id . at 413. Guided by these principles, we discern no basis to intervene.


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