Opinion
DOCKET NO. A-3588-12T1
07-14-2014
D.S., Plaintiff-Respondent, v. D.E.K., Defendant-Appellant.
D.E.K., appellant pro se. Respondent D.S. has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Simonelli.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-1239-13.
D.E.K., appellant pro se.
Respondent D.S. has not filed a brief. PER CURIAM
Defendant D.E.K. appeals from the February 11, 2013 final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on assault, N.J.S.A. 2C:12-1a. We affirm.
We derive the following facts from the record. Plaintiff D.S. and defendant are married. Plaintiff testified that on January 10, 2013, defendant punched her in the head, knocked her down, grabbed her by the neck, and held her down. Plaintiff called the police, but the police arrested her for domestic violence. The court dismissed the matter on January 14, 2013. Every day thereafter, defendant would block plaintiff's movements from room to room, strike her body with his, purposely brush and bump her with his body as she tried to pass him, threaten to keep her awake, repeatedly threaten to kill her, and told her to watch her back and that he knew someone in Linden who would rape and hurt her. Defendant also said he knew the police and constantly threatened to call them.
Plaintiff also testified that on January 29, 2013, defendant began arguing with her, called her derogatory names, "flicked [her] nose," grabbed her arm and held it tightly, and threatened to hurt her. On January 30, 2013, defendant told her he was going to hurt her son and that her son had better watch his back. Defendant also pointed to his wedding ring and said, "this gives me the right to do whatever I want. You are my wife, and I can do what I want - anything to you. And don't forget it." Plaintiff took defendant's threats "very seriously, and said, "I'm frightened because I actually believe that he will hurt me."
Defendant denied the parties argued and claimed that plaintiff had a problem with alcohol. The trial judge found plaintiff's testimony believable and defendant's testimony not believable. The judge concluded that plaintiff proved defendant committed the predicate act of simple assault, there was a history of domestic violence, and an FRO was necessary to prevent further abuse. On appeal, defendant contends the evidence did not support entry of an FRO. We disagree.
Our review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A trial court's fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. The trial judge sees witnesses firsthand and has a "feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (citations and internal quotation marks omitted). We give additional deference to the factual findings of family court judges because they have special expertise, ibid., and we do not second-guess their exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Where our review addresses questions of law, however, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002).
When determining whether to grant an FRO pursuant to the PDVA, the trial judge must first determine whether the plaintiff has proven, by a preponderance of the evidence, that the defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-19a, which incorporates assault, N.J.S.A. 2C:12-1, as conduct constituting domestic violence. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). If a predicate offense is proven, the judge must then determine whether a 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); N.J.S.A. 2C:25-29b.
Plaintiff's allegations in this case fell under N.J.S.A. 2C:12-1a. "A person is guilty of assault if he: (1) [a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (2) [n]egligently causes bodily injury to another with a deadly weapon; or (3) [a]ttempts by physical menace to put another in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1a(1)-(3). "'Bodily injury' is defined as 'physical pain, illness or any impairment of physical condition'." State ex rel. S.B., 333 N.J. Super. 236, 242 (App. Div. 2000) (quoting N.J.S.A. 2C:11-1a).
"'Not much is required to show bodily injury. For example, the stinging sensation caused by a slap is adequate to support an assault.'" State v. Stull, 403 N.J. Super. 501, 505 (App. Div. 2008) (quoting N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997)). "[P]hysical discomfort, or a sensation caused by a kick during a physical confrontation, as well as pain, as that word is commonly understood, is sufficient to constitute bodily injury for purposes of a prosecution for simple assault." S.B., supra, 333 N.J. Super. at 244.
Here, defendant intentionally "flicked" plaintiff's nose, grabbed her arm and held it tightly, and threatened to kill her. This sufficiently established bodily injury necessary for a finding of simple assault and that an FRO was necessary to protect plaintiff from further abuse.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION