NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 4, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-0534-13.
Richard F. Klineburger argued the cause for appellant (Klineburger and Nussey, attorneys; D. Ryan Nussey, on the briefs).
Ted M. Rosenberg, attorney for respondent (Mr. Rosenberg and Robert M. Rosenberg, on the brief).
Before Judges Messano and Lihotz.
At the time this matter, filed pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, was presented to the court, the parties were married, living in the same home with their children, and enmeshed in matrimonial litigation. Plaintiff M.J.T. filed a complaint alleging defendant A.V.B. bit her finger during an argument. Defendant concedes contact occurred during their argument, but contends it was accidental and no need for a restraining order was demonstrated. He maintains the trial court failed to make the required findings to support entry of a final domestic violence restraining order. Following our review, we agree that flaws in the judge's factfinding require reversal.
During the final hearing, held on October 11, 2012, plaintiff and defendant, each represented by counsel, testified regarding the September 23, 2012 altercation. Additionally, Cinnaminson Police Officer Francis Rooney and the parties' nine-year-old son, A.B., Jr. testified.
Officer Rooney explained he and four other officers were dispatched to the parties' residence at 7 p.m. He did not interview either party, explaining other officers took their statements, which he described as "divergent." Plaintiff stated, during the argument defendant grabbed her hand and bit her finger. She had a bite mark on her index finger, which was bleeding, and she declined medical treatment. Defendant concurred the parties were arguing, but asserted plaintiff had "grabbed his face and his mouth" and "her finger may have [gone] in" his mouth. As a result, he may have accidently bit her when he was trying to get her finger out of his mouth. Defendant had a scratch on the inside of his lower lip. Both parties were handcuffed as police were unable to determine who was the victim.
As Officer Rooney was returning to the police station, he was informed A.B., Jr. witnessed his parents' altercation. He returned to the residence to interview the child. He commented A.B., Jr. was "unfazed" by the incident and after listening to the child's comments, charged defendant with simple assault.
Plaintiff next testified, stating before she left for work, the Sunday evening in question, she and defendant had a heated argument. Generally, she worked evenings and defendant worked days. Based on an agreement, the parties shared joint legal and physical custody of their children. They had shared the residence, sleeping in separate bedrooms, for approximately three years.
Plaintiff believed defendant had entered her bedroom earlier that weekend and removed a letter from A.B., Jr.'s teacher. She told defendant to return the letter and he responded by yelling, calling her names, and stating he was entitled to the document because it was a story written by their son. Plaintiff went over to their child J.B., who was in the room. She "put [her] hands on his shoulders and . . . turned him to his father and . . . said . . . this is a perfect example of how never, ever to behave." Defendant was angry and went to the basement, where A.B., Jr. was playing. Plaintiff entered the basement and exchanged more words with defendant. She then kissed A.B., Jr. goodbye and returned upstairs to the kitchen. Defendant followed her up the steps and resumed yelling. As the parties stood approximately one to two feet from each other, plaintiff described the events that followed, stating: "I put my hand up with my finger up and said stop talking to me like that in front of the children. . . . He came closer. . . . He sort of lunged. . . . He grabbed my wrist . . . . He bent forward and bit me." She grabbed her phone and called the police. Plaintiff stated she sought hospital treatment after she left the police station.
Plaintiff also noted she had previously made "domestic violence allegations[.]" She asserted she was afraid of defendant and sought a final restraining order ...