June 19, 2013
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2013.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0500-13.
Howard B. Felcher argued the cause for appellant (Law Offices of Howard B. Felcher, PLLC, attorneys; Mr. Felcher and Alexander M. Warshow, on the briefs).
Matheu D. Nunn argued the cause for respondent (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Mr. Nunn and Mark Wechsler, on the brief).
Before Judges Alvarez and Waugh.
Plaintiff J.G. appeals from the Family Part's denial of the final restraining order (FRO) that she sought against defendant A.G. The judge's decision was rendered from the bench after a trial conducted pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 (the Act), on December 19, 2012. For the reasons that follow, we affirm.
At the time of trial, the parties were in the process of divorcing while continuing to reside together in the marital residence. Plaintiff had sought and was denied a temporary restraining order against defendant as a result of at least two prior alleged incidents.
This particular confrontation occurred late in the night on November 16, 2012, when, after a heated exchange in the kitchen of the marital residence, plaintiff went into her bedroom and shut the door. She heard a thump, and when she opened the door, found a steak knife on the floor. Defendant explained to her that he had accidentally dropped the knife while heading towards the stairs near her bedroom. He then left the marital residence and plaintiff called the police. She obtained a temporary restraining order (TRO) on November 17, 2012.
After hearing extensive testimony from both parties, who were represented, the Family Part judge concluded that although it was probable that defendant threw the knife against the door, he also believed that "what happened was an acting out on the strained feelings . . . amplified by alcohol . . . ." As a result, pursuant to J.D. v. M.D.F., 207 N.J. 458 (2011), he found that defendant lacked the intent to harass. Although the behavior was "perhaps better left undone, " the judge said it did not rise to the level of the predicate conduct required by either section of the harassment statute. Hence he denied plaintiff's application for an FRO.
Plaintiff now appeals, raising several points of error:
I. PUBLIC POLICY DEMANDS THAT APPELLANT BE PROTECTED FROM FURTHER ACTS OF DOMESTIC VIOLENCE BY RESPONDENT
II. THE LOWER COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT RESPONDENT'S THROWING OF A DEADLY WEAPON AT APPELLANT DID NOT RISE TO THE LEVEL OF HARASSMENT
A. The Lower Court's Legal Conclusion is Not Supported by Its Findings of Fact
B. All Requirements Have Been Satisfied To Find that Respondent Harassed Plaintiff, and that a Final Restraining Order Should Have Been Issued
1. Had the proper analysis been conducted, it would have been clear that Defendant had harassed Plaintiff under the meaning of the statute.
2. The second requirement for granting a final restraining order — necessity – has also been met.
III. THE TERM "ACTING OUT" IS UNDEFINED, UNSUPPORTED BY EVIDENCE, AND CONTRARY TO RESPONDENT'S OWN POSITION
IV. THE LOWER COURT WAS ASKED TO CLARIFY ITS POSITION IN TWO SPECIFIC RESPECTS, AND FAILED TO DO SO
V. NUMEROUS ASSERTIONS ADVANCED IN RESPONDENT'S PRIOR BRIEF OPPOSING A STAY – WHICH WILL PRESUMABLY BE ADVANCED AGAIN HERE – ARE ERRONEOUS AND MISLEADING
Our standard of review is exceedingly circumscribed. We defer to the trial judge's factual findings unless they are demonstrated to be so "clearly mistaken" or "wide of the mark" that they are not reasonably supported by the record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). We give considerable weight to the trial judge's factual findings in a case such as this, given that the judge is in a unique position of having the opportunity to evaluate the demeanor of the parties. See Cesare v. Cesare, 154 N.J. 394, 412 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord particular deference to the expertise of the Family Part, as those judges regularly make the often difficult decisions about the lives of families. See E.P., supra, 196 N.J. at 104; Cesare, supra, 154 N.J. at 413.
Applying our circumscribed standard of review, we agree with the trial court that plaintiff did not establish a purpose to harass as required by the statute. See also E.M.B. v. R.F.D., 419 N.J.Super. 177, 183 (App. Div. 2011). The parties had been arguing. Defendant had been consuming alcohol and, for reasons not relevant to the issues on appeal, was very upset with plaintiff. The trial judge found he could not even infer a purpose to harass from this record, only an expression of "strained feelings . . . amplified by alcohol." Under appropriate circumstances, such a purpose can be inferred from the proofs. See State v. Hoffman, 149 N.J. 564, 577 (1997). These circumstances do not warrant such an inference.
Even had such an intent been demonstrated, on this record the court could not have found plaintiff's proofs satisfied the second prong of the test for issuance of an FRO. Pursuant to Silver v. Silver, a trial court must also decide "whether a restraining order is necessary." 387 N.J.Super. 112, 127 (App. Div. 2006). Nothing in the record developed before the trial judge indicated an ongoing need to protect plaintiff. See ibid. We do not consider plaintiff's additional points to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).