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N.B. v. A.B.

Superior Court of New Jersey, Appellate Division

June 28, 2013

N.B., Plaintiff-Respondent,
v.
A.B., Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 4, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-001979-12.

Law Offices of Jef Henninger, attorneys for appellant (Jef Henninger, on the brief).

The Law Offices of Qadeer and Associates, PC, attorneys for respondent (Omar K. Qadeer, on the brief).

Before Judges Harris and Hayden.

PER CURIAM

Defendant A.B. appeals from a final restraining order entered in favor of plaintiff N.B. pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, based on the Family Part's finding that A.B. assaulted N.B. On February 25, 2012.[1] A.B. argues that there was insufficient evidence to find that an assault had occurred and the issuance of the final restraining order was not necessary for N.B.'s protection. We reject these arguments and affirm.

I.

The parties were married in May 2010. A temporary restraining order under the Act was entered by the Family Part in N.B.'s favor on April 18, 2012. The grounds for the temporary restraining order included alleged assault, sexual assault, and harassment. The complaint charged, among other things, that in addition to "[A.B.] forc[ing] [N.B.] to have sex and sexually assault[ing] [N.B.]" on April 17, 2012, A.B. slapped N.B. on the face "about three months ago, " but "this was never reported."

On the first-scheduled trial date, N.B. filed a handwritten amended complaint, which caused the trial to be adjourned. In her amended pleading N.B. wrote,

[O]n Feb[ruary] 25 of this year, [A.B.] wanted to have sex and then pushed [N.B.] off the bed. Then hit [N.B.] and [A.B.'s] mother came out of the room supporting her son in beating [N.B.]. His father just watched. [A.B.] hit [N.B.] again and then pushed [N.B.] down the stairs. [A.B.] then threw [N.B.] out of the home, told her to "go die, " and then locked [N.B.] out. [N.B.] had no shoes or coat and was crying outside for over [thirty] minutes. [A.B.] opened the door, yelled at [N.B.] again and told her to get back inside. [A.B.] pushed [N.B.] on the floor as she walked in.

The temporary restraints were continued to the new trial date.

At trial on May 14, 2012, the parties testified. In addition to the April 16, 2012 incident and other encounters, N.B. described the events of February 25, 2012, in a fashion consistent with the version of events that she had written in the amended complaint. She also testified that on the Monday following the assault, she sought medical attention for her bruises and back pain.

A.B. did not testify about, or refute in any way, N.B.'s version of events concerning February 25, 2012.[2] Instead, he concentrated his testimony on challenging N.B.'s testimony about an alleged sexual assault that supposedly occurred on April 16, 2012.

After canvassing the evidence and considering the arguments of counsel for both sides, the trial court concluded that "there is no finding that the court can make that there was, in fact, a sexual assault on April 16th." However, in finding that "[N.B.]'s testimony with regard to the . . . February 25th incident is really left uncontroverted by [A.B.], " and concluding that "the credibility of [N.B.] is found by the Court to be true, " the court declared, "I find that, in fact, that the —— a slapping incident and pushing incident did in fact occur on February 25th."

The court determined that this was "assaultive behavior . . . which gives rise to an assault." After reviewing what it found to be N.B.'s credible history of domestic violence, the court held that the "domestic violence toward [N.B.] during the course of the marriage, the slapping incidents, do give rise to the protection necessary for her for the issuance of a [f]inal [r]estraining [o]rder." Accordingly, such an order was entered on May 14, 2012. This appeal followed.

II.

A final restraining order may issue only if the Family Part finds that: the plaintiff and the defendant have a relationship bringing the conduct within the Act, N.J.S.A. 2C:25-19(d); defendant committed an act designated as domestic violence, N.J.S.A. 2C:25-19(a); 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)).

A Family Part judge's factual findings are entitled to considerable deference. D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing I 154 N.J. 394, 413 (1998)). However, we do not pay special deference to such judge's interpretation of the law. Ibid. (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010)).

Our review of the record confirms that the Family Part acted entirely consistent with law and rendered a fair judgment based upon competent evidence derived from the record. The court observed the parties first-hand and its explanation for finding the February 25, 2012 assault, together with the need for a final restraining order, was unremarkable. Its credibility findings were explained, and even if the court might have erred in its understanding of the timing of one of N.B.'s medical conditions, the court's overall analysis of the trial record reveals that a proper result was reached.

In our analysis, we recognize that we may not disturb a trial court's factual findings unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The findings in this case do not offend the interests of justice.

As noted, once the court determines that a defendant has committed a predicate act, it then must decide whether to issue a restraining order to protect the victim. Silver, supra, 387 N.J.Super. at 126. The commission of a predicate act does not automatically require that a restraining order be issued. Id. at 126-27. Rather, the court will only issue a restraining order if it is "necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.

We conclude that the totality of the circumstances supports the Family Part's finding that issuance of a final restraining order was justified. N.J.S.A. 2C:25-29(a)(1) directs consideration of evidence of prior history of domestic violence between the parties, Pazienza v. Camarata, 381 N.J.Super. 173, 183 (App. Div. 2005), "regardless of whether those acts have been the subject of a domestic violence adjudication." Cesare, supra, 154 N.J. at 405. In Cesare, the Court stated that "[b]ecause a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard." Ibid.

A.B.'s conduct on February 25, 2012, coupled with what the trial court viewed as an on-going, tumultuous relationship that existed since the inception of the marriage, was sufficient to engender the conclusion that a final restraining order was necessary and appropriate. The court was free to treat A.B.'s "blanket assertion that he never struck his wife" as not credible. We are in no position to second-guess that eminently supportable conclusion.

Affirmed.


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