Opinion
DOCKET NO. A-3727-13T1
04-29-2015
D.G., Plaintiff-Respondent, v. S.G., Defendant-Appellant.
Evan F. Nappen, P.C., attorneys for appellant (Louis P. Nappen, on the brief). Costa Vetra LaRosa & Costa, attorneys for respondent (Kimberly Garrigues, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-1596-14. Evan F. Nappen, P.C., attorneys for appellant (Louis P. Nappen, on the brief). Costa Vetra LaRosa & Costa, attorneys for respondent (Kimberly Garrigues, on the brief). PER CURIAM
Defendant S.G. appeals from a February 28, 2014 final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
These are the most pertinent facts. On December 20, 2013, plaintiff D.G. applied for and obtained a temporary restraining order (TRO), based on her assertion that during the course of an argument defendant threw a dumbbell weight, causing her to be fearful. She also asserted that there had been previous, unreported acts of domestic violence. The complaint further indicated that defendant had undergone "a drastic change in mental status" due to a traumatic brain injury and that plaintiff was "in constant fear."
On February 20, 2014, the local police department charged defendant with purposely or knowingly violating the TRO by stalking plaintiff. A Superior Court judge approved the issuance of a complaint warrant based on information provided by the police.
On February 28, 2014, plaintiff and defendant, both of whom were represented by counsel, appeared before a Family Part judge for a hearing on an application for a FRO. Defendant's attorney explained to Judge Linda G. Baxter that after the entry of the TRO there had been "a couple of adjournments." The attorney further advised the judge that in the interim, "some criminal charges" had been filed against defendant for violating the TRO. He told the judge that he had several conversations with the Prosecutor's Office in an attempt to resolve the charges and that "the Prosecutor's Office is satisfied that if . . . a final restraining order is entered today by [way] of consent, . . . the Prosecutor will not be proceeding on the criminal charges. So, that's why we're moving forward the way we are."
However, Judge Baxter did not permit the parties to simply consent to entry of the FRO. Instead, she required testimony concerning the elements of the domestic violence complaint. Plaintiff testified that after defendant suffered traumatic brain injury in a motorcycle accident, he exhibited frustration and anger, leading to episodes of "threats and violence and throwing things, to the point that my children and myself were very afraid [for] our safety."
Plaintiff testified that the most recent violent incident occurred on December 20, 2013, when she obtained the TRO. Plaintiff testified that during that incident, defendant threw a dumbbell weight at her. In answer to the judge's questions, plaintiff also confirmed that as of the time of the FRO hearing, she was frightened and believed that a restraining order was necessary for her protection. Plaintiff also stated that she was "concerned about the safety of [her] children." Through his attorney, defendant waived the opportunity to cross-examine plaintiff or to present any rebuttal evidence.
In an oral opinion, Judge Baxter found that defendant
has had some personality change due to . . . brain injury, to the point where he becomes angered and threatening and throws things, and most recently on December 20th threw a barbell weight at Plaintiff.
Fortunately, he didn't hit her, but that is certainly the type of behavior that justifies and requires the issuance of a final restraining order. That constitutes an assault, it constitutes harassment. So, I find that a final restraining order should be and hereby is issued.
The judge also noted for the record that neither the court nor plaintiff had any control over whether the Prosecutor's Office would dismiss the criminal charges. "[T]hat is purely up to the discretion of the Prosecutor's Office." Both counsel, however, stated on the record that they had each spoken to the assigned Assistant Prosecutor and understood that she intended to dismiss the charges.
On this appeal, defendant raises three arguments, none of which were presented to the trial court:
POINT 1: THE HEARING BELOW VIOLATED PROFESSIONAL ETHICS BY USING THE THREAT OF CRIMINAL SANCTIONS TO GAIN A CIVIL ADVANTAGE.
POINT 2: THE COURT BELOW ERRED BY ENTERING THE FINAL RESTRAINING ORDER WITHOUT AN ADMISSION BY THE DEFENDANT AND BASED ON FOUNDATIONS THAT WERE NOT IN THE DOMESTIC VIOLENCE COMPLAINT.
POINT 3: THE COURT BELOW ERRED BY NOT ANALYZING WHETHER THE
PLAINTIFF REQUIRES CONTINUED PROTECTION, PER SILVER, AND THE PLAINTIFF DOES NOT REQUIRE CONTINUED PROTECTION.
We conclude that defendant waived those arguments when he failed to present them to the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, even considering them we find that they are without merit, and warrant no discussion beyond the following comments. R. 2:11-3(e)(1)(E).
Defendant first argues that the domestic violence proceedings violated RPC 3.4(g) (formerly DR 7-105), which precludes an attorney from presenting or threatening to present criminal charges to obtain an improper advantage in a civil matter. There is no evidence to support that assertion. In particular, there is no evidence that plaintiff's attorney participated in filing the criminal charges against defendant. Those charges were filed by the Atco Police Department, with a judge's approval. The fact that defendant's attorney was able to negotiate an agreement with the Prosecutor's Office, resulting in a resolution of those criminal charges, does not prove or even suggest that plaintiff's attorney engaged in any wrongdoing.
Defendant's second point is equally without merit. Contrary to his assertion, there is no requirement that a defendant admit to committing an act of domestic violence before the court can enter a FRO. See N.J.S.A. 2C:25-29(a). Defendant's reliance on Chernesky v. Fedorczyk, 346 N.J. Super. 34, 39 (App. Div. 2001), is misplaced, because in that case defendant chose to admit that he committed domestic violence. In this case, Judge Baxter did not accept defendant's consent to the entry of the FRO, nor did she base her findings on any admissions from defendant. Instead she required testimony from plaintiff, which defendant then chose not to rebut. Moreover, unlike Chernesky, in this case the evidence established an ample factual basis for the judge's findings. See id. at 41.
Plaintiff's testimony, to which defendant did not object, established that defendant assaulted her by throwing a dumbbell weight at her. Assault is one of the predicate acts under the PDVA, N.J.S.A. 2C:25-19(a)(2). Further, plaintiff testified, consistent with the allegations in the TRO application, that this was only the most recent in a series of similar incidents, and that she was in fear for her safety and that of her children. We find no basis to conclude that defendant lacked notice of her allegations. Further, the undisputed evidence satisfied the prerequisites for entry of a FRO, including the need to protect plaintiff from future acts of domestic violence. See Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION