Opinion
DOCKET NO. A-3147-10T3
11-23-2011
J. C. S., Plaintiff-Respondent, v. M. A. S., Defendant-Appellant.
Annmarie Jensen argued the cause for appellant (Law Offices of Robert N. Agre, attorneys; Robert N. Agre, on the brief; Ms. Jensen, of counsel and on the brief). Thomas J. Hurley argued the cause for respondent.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Camden County, Docket No. FV-04-1664-11.
Annmarie Jensen argued the cause for
appellant (Law Offices of Robert N. Agre,
attorneys; Robert N. Agre, on the brief; Ms.
Jensen, of counsel and on the brief).
Thomas J. Hurley argued the cause for
respondent.
PER CURIAM
After a trial at which both parties testified and were represented by counsel, the Family Part issued a final restraining order ("FRO") under the Prevention of Domestic Violence Act (the "PDVA"), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff, J.C.S., on January 12, 2011. Defendant, M.A.S., now appeals the FRO, arguing that the proofs were insufficient and that the trial judge misapplied the law. We affirm.
The parties were divorced on December 1, 2010. As part of the terms of their divorce agreement, defendant was obligated to pay plaintiff the net sum of $20,555.75 on or before December 8, 2010. Defendant obtained the required funds from a relative and kept the money in a safe in his dwelling.
At about 4:00 p.m. on December 8, the last day when the payment was due, plaintiff came to defendant's residence in response to a text message from him earlier that day informing her that he was ready to give her the payment. Plaintiff testified that upon her arrival, she was surprised to discover that defendant was making the payment in cash and not by check. Defendant asked plaintiff to sign a receipt for the cash, which plaintiff was reluctant to do.
The parties agree that plaintiff subsequently left the residence temporarily, but diverged in their testimony about the timing. Plaintiff testified that she left the residence after defendant told her that he was paying her in cash, in order to ponder whether to accept the funds in cash form, and then went back inside. In contrast, defendant testified that plaintiff did not leave until after their physical confrontation occurred, and that she then came back inside to retrieve the money.
According to plaintiff's testimony, as defendant was counting the cash in the dining room, he began "mocking" her by calling her "such a baby," and asking "[w]hy do you have to make things so difficult?" When defendant finished counting the cash, plaintiff picked up the money from the dining room table. She walked towards the front door without having signed a receipt. At this point, according to plaintiff's testimony, defendant ran after her "shouting, you're not going to steal my money." In his own testimony, defendant admitted that he was trying to retrieve the cash from plaintiff and that his attempt to do so was "stupid."
The parties' descriptions of the ensuing physical confrontation were slightly different. Plaintiff testified that defendant "slammed the door shut, not allowing [her] to leave, . . . knocked [her] into the door, [and] pinned [her] down[.]" She also testified that her "head smashed into the door" and her "shoulder into the door frame," before she landed on the staircase and "screamed for [her] daughter who was in the house to call 9-1-1."
Photographs of bruising and plaintiff's left shoulder, covering an area approximately two-and-a-half inches in diameter, were admitted into evidence. The photographs were taken within five days after the incident.
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According to defendant's version of the confrontation, the two parties struggled over the envelopes of money in plaintiff's hands, after which she tripped over her feet or otherwise fell backwards onto the staircase of her own accord. Defendant denied having bumped or pushed plaintiff with his chest. He claimed that he accidentally fell on top of her. He further alleged that plaintiff punched him in the face and head three times while she was on the ground, but he offered no photographs of his face to corroborate those alleged blows.
As a result of the physical encounter, defendant successfully retrieved the money. Plaintiff testified that defendant would not allow her to leave the premises without signing the receipt, so she signed it. Defendant gave her the counted cash, and she departed.
After leaving the house, plaintiff drove to the Cherry Hill Police Department, approximately five minutes away. Apparently her daughter had not called 9-1-1 as plaintiff had requested. Plaintiff stated that she cried as she sat in her car in the police station parking lot. She testified that she was scared because she had over $20,000 in cash, had left the children at the house, and was in "disbelief and fear" after the incident. Plaintiff then went inside the police station and filed a complaint against defendant. She sought a temporary restraining order ("TRO") against him, and a municipal judge issued one later that evening.
After the TRO was issued on December 8, 2010, the parties encountered one another at a grocery store and also at their synagogue. According to plaintiff's testimony, on one particular occasion at the synagogue on January 8, 2011, plaintiff approached the pew behind where defendant and their two daughters were sitting, kissed each of the daughters, and then took a seat in a separate place.
At the ensuing FRO trial, plaintiff testified about the defendant's prior history of verbal harassment, including an incident in November 2009 during the two-week period in which the parties had agreed to divorce but plaintiff had not yet moved out of their marital home. On that occasion, plaintiff locked herself in the bathroom to take a shower. Plaintiff had brought her cell phone into the bathroom because she did not feel safe in the house. Plaintiff testified that the couple was alone because the children had not returned from school yet. Defendant knocked on the bathroom door but plaintiff refused to let him in. According to plaintiff, defendant "mock[ed]" her after she threatened to call the police. After plaintiff took a brief shower, defendant picked the lock on the door and entered the bathroom naked. As a result, plaintiff called the police. In his own testimony, defendant could not recall the specifics of the November 2009 episode, except that it happened in the morning when the children were still asleep.
Upon considering this evidence, Judge Anthony Pugliese granted plaintiff's request for an FRO on January 12, 2011. In his bench ruling, the judge expressed doubts about defendant's credibility, particularly defendant's claim that he had let plaintiff back into the house following their physical altercation, and after plaintiff had already yelled to her daughter to call the police.
The judge characterized defendant's conduct, in counting the large amount of cash in plaintiff's presence and mocking her as he counted, as a "final power play." The judge found that defendant had committed a predicate offense of assault under the statute by recklessly pursuing plaintiff after counting the funds and causing the physical contact that produced her injuries. The judge also specifically found that plaintiff was "in need of having the restraints."
The trial court denied defendant's motion for reconsideration on February 25, 2011 after hearing further oral argument. In his oral ruling, Judge Pugliese amplified his assessment of the proofs. The judge noted that defendant had acted in a "manipulative" manner towards plaintiff, that it was clear from the evidence that he assaulted her and caused her bodily injury, and that the FRO was justified to prevent defendant from committing similar acts in the future. The judge also noted that the FRO would protect plaintiff and the children in future interactions, and that a third party could act as an intermediary for the parties on parenting time matters.
Defendant now appeals. He argues that the trial proofs were insufficient to support the judge's finding of a predicate act of assault. He also argues that the proofs were insufficient to establish that plaintiff was in fear of him and needed the court's protection. We reject those contentions.
To obtain an FRO under the PDVA, a plaintiff must establish two key elements by a preponderance of the evidence. First, a plaintiff must prove that defendant committed one of the predicate offenses, as enumerated in N.J.S.A. 2C:25-19(a). One of those enumerated offenses under N.J.S.A. 2C:25-19(a) is assault, N.J.S.A. 2C:12-1. Second, if a predicate offense is shown, plaintiff must also show that a restraining order is necessary for the protection of the victim. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006); see also J.D. v. M.D.F., 207 N.J. 458, 475-76, 488 (2011); L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 536 (App. Div. 2011).
In reviewing the FRO issued by the Family Part following the contested trial, our scope of review is limited. The Family Part's findings are binding on appeal, "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is particularly appropriate in cases like this, where the evidence is largely testimonial in nature and hinges upon a court's ability to make assessments of credibility and veracity based on its observation of testifying witnesses. Id. at 412. A trial judge, rather than an appellate court, has a better opportunity to evaluate credibility. Ibid. ; see also S.D. v. M.J.R., 415 N.J. Super. 417, 429 (App. Div. 2010). We also bear in mind the expertise of Family Part judges, who routinely hear many domestic violence cases. Cesare, supra, 154 N.J. at 413. We therefore will not disturb the "factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." S.D., supra, 415 N.J. Super. at 425 (quoting Rova Farms Resort, Inc., v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
Applying due deference to the Family Part's factual findings in this case, we are satisfied that they are amply supported by credible evidence in the trial record. Moreover, we are equally satisfied that the trial court's application of the statutory factors was legally sound.
Defendant contends that his conduct was insufficient, as a matter of law, to comprise a simple assault, as that offense is defined under N.J.S.A. 2C:12-1. We disagree. His aggressive conduct in deliberately pursuing plaintiff to retrieve the cash after it was counted, and then in causing her bodily injury when they collided, fulfills the elements of N.J.S.A. 2C:12-1. The judge reasonably concluded that defendant had acted recklessly, i.e., by "consciously disregarding a substantial and unjustifiable risk" of harming plaintiff. See N.J.S.A. 2C:2-2b(3) (defining reckless conduct). We appreciate that defendant admitted, in retrospect, that his conduct was "stupid," and that the court took note of that admission in its ruling. However, the admission does not vitiate the legal conclusion that defendant's reckless and injurious behavior was not only foolish, but that it sufficed to comprise a simple assault within the definition in N.J.S.A. 2C:12-1.
In addition, the trial judge's finding that restraints were necessary for plaintiff's protection were amply supported by the record, particularly in light of the parties' past history and the November 2009 shower incident. Plaintiff specifically and unambiguously testified three times during her examination that she was in fear of defendant. The judge accepted her testimony as credible. The fact that after the TRO was issued plaintiff briefly drew near to defendant to greet her children, in the confines of a house of worship, does not mean that she felt safe from defendant in a less controlled environment. The record sufficiently reflects that the risk of harm to plaintiff from further potential abuse justified restraints for her protection. J.D., supra, 207 N.J. at 488 (noting the necessity of an ongoing "risk of harm").
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION