Opinion
DOCKET NO. A-3109-12T2
07-01-2014
M.E.C., Plaintiff-Respondent, v. G.L.C., Defendant-Appellant.
Obermayer Rebmann Maxwell & Hippel LLP, attorneys for appellant (Shari B. Veisblatt, on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Higbee.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-001129-13.
Obermayer Rebmann Maxwell & Hippel LLP, attorneys for appellant (Shari B. Veisblatt, on the brief).
Respondent has not filed a brief. PER CURIAM
In this unopposed matter, defendant appeals from the entry of a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33 (DVA). We affirm.
Plaintiff and defendant were separated and in the process of obtaining a divorce, when, on January 24, 2013, plaintiff filed a Domestic Violence complaint against defendant. The complaint alleged that on January 23, 2013, defendant had urinated on plaintiff's clothes that were hanging in the bathroom. Plaintiff also filled out a theft report alleging that defendant had stolen her jewelry. She was granted a temporary restraining order.
Plaintiff and defendant had been married for fourteen years and had three children. The parties separated in January 2011, but had been living in the marital home together for two years while the divorce action was pending. At the final hearing plaintiff testified that over the last several months defendant's behavior had been escalating and he had become increasingly erratic and hostile, to the point where she no longer felt safe. When asked by the trial court to detail any previous acts of domestic violence, plaintiff stated that her clothing, jewelry and other personal items had gone missing and that she believed defendant took the items. She also testified that despite a court order directing defendant not to make any modifications to the marital home, defendant placed padlocks on his office door and nightstand and splotched plaster all over the dining room walls solely for the purpose of harassing and intimidating her. However, plaintiff later admitted that defendant had also made a number of repairs on the home and only put a padlock on his office door because she had previously gone through his personal papers.
Plaintiff also testified that one weekend when defendant's foot hurt and he was unable to get out of bed, he screamed at the children to help him and bring him things. She stated that he used foul language towards her and that she would close the bedroom door on him so she would not have to hear him screaming. Defendant then removed the door from the hinges so the children could hear him from the bedroom.
Plaintiff also recalled an incident from five years prior in which the parties had a fight and defendant later kicked a hole in the wall. The police were called but no reports were filed.
Following the filing of the Domestic Violence complaint and after defendant had been removed from the home, plaintiff broke into defendant's locked nightstand drawer looking for her jewelry. Plaintiff testified that she found what she described as a "switchblade." At that point, plaintiff called the police and they took the knife for safekeeping.
Plaintiff testified that defendant never told her that he had a knife or threatened her with the knife. Plaintiff also testified that defendant had never become physical towards her or threatened any violence towards her.
In regards to the incident on January 23, 2013, which led to the filing of the Domestic Violence complaint, plaintiff testified that after she discovered her clothes soaked in what she believed to be defendant's urine, she went to work and proceeded with her day as she would normally. She did not engage in any confrontations or arguments with defendant over the clothes. She did not call the police until directed to do so by her divorce attorney. Plaintiff testified that the clothes came clean when she ran them through the washer.
In response, defendant denied ever taking any of plaintiff's personal items and alleged that plaintiff actually stole some of his personal belongings. Defendant testified that plaintiff had gone through his personal papers and belongings in his office, which prompted him to place padlocks on his office and nightstand drawer. He explained that he had the knife, which he described as a pocket knife, in his nightstand to bring with him to rental property in a dangerous neighborhood.
At the conclusion of the hearing the trial court found that defendant's conduct constituted criminal mischief in violation of the DVA and issued the FRO. The trial judge found:
[T]he defendant did knowingly damage the tangible property of the plaintiff.
However, this particular situation is - - it sounds minor and it would be minor if it weren't ensconced in this context of escalating behavior and the location of the knife in the drawer next to the bed.
I'll use the defense attorney's earlier comments - - that domestic violence is controlling or abusing. That is what her - - the defendant is attempting to control or abuse this plaintiff by doing that. He has invaded her privacy by going into her room, changing her clothes around. He has - - and his demeanor, the Court relies significantly on the defendant's demeanor in not taking these circumstances seriously.
. . . .
The Court further finds that there's a need to protect the plaintiff against future acts of domestic violence. There have been no physical threats between the parties. However, in this case, his conduct has been escalating. He dismisses any responsibility regarding this. And the plaintiff - - the plaintiff's demeanor shows fear.
Defendant appeals, contending that the evidence did not establish the predicate act of criminal mischief and that there was no basis for entry of a FRO. We disagree.
"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Generally, "[w]e must accept [the trial court's] findings when they are supported by adequate, substantial, credible evidence 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." Kamen, supra, 322 N.J. Super. at 228 (citing Cesare, supra, 154 N.J. at 412).
We find there was sufficient, credible evidence for the trial court to have found that defendant committed an act of domestic violence warranting the issuance of a FRO. Domestic violence is described as "a pattern of abusive and controlling behavior which injures its victim." Corrente v. Corrente, 281 N.J. Super. 243, 246 (App. Div. 1995). The Domestic Violence Act was created to provide the victims of domestic violence with the "maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Before a plaintiff is entitled to relief under the DVA, the plaintiff must prove, by a preponderance of the evidence, that "one or more of the predicate acts [of domestic violence] set forth in N.J.S.A. 2C:25-19a has occurred." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006) (citing N.J.S.A. 2C:25-29a). The DVA also requires "that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of violence between the parties including previous threats, harassment and physical abuse . . . ." Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995).
Here, the trial court found defendant committed an act of criminal mischief when he urinated on plaintiff's clothing. A person is guilty of criminal mischief if he or she purposely or knowingly damages the tangible property of another. N.J.S.A. 2C:17-3a(1). We find that sufficient evidence existed for the trial court to have found that defendant committed criminal mischief.
Credible evidence also existed to support the trial court's finding that a FRO was necessary. The law requires courts to consider the parties previous history in the context of a domestic violence dispute. See Peranio, supra, 280 N.J. Super. at 54; Cesare, supra, 154 N.J. at 405. The trial court reviewed the parties' history, and found that "defendant has gone from little annoyances to an escalating activity of controlling and demeaning this plaintiff." The trial judge was also able to observe the parties and their demeanor during the hearing and found that plaintiff was credible when she said she feared the defendant, stating, "when she described the discovery of this switchblade in the bed next to him, she - - her voice was cracking and she was almost in tears."
Based upon the evidence presented, we find that there was sufficient evidence to support a finding of domestic violence and warranting the entry of a FRO. The decision to issue a FRO requires a two-step analysis as set forth in Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006).
First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred. See N.J.S.A. 2C:25-29a (stating that "the standard for proving the allegations in the complaint shall be by a preponderance of the evidence"). In performing that function, "the Act does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.'" Cesare, supra, 154 N.J. at 402, 713 A.2d 390 (quoting Peranio, supra, 280 N.J. Super. at 54, 654 A.2d 495). Stated differently, when determining whether a restraining order should be issued based on an act of assault or, for that matter, any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property. See N.J.S.A. 2C:25-29a(1) and (2).
Here, the judge was in the best position to decide not only that there was a predicate act of criminal mischief, but to determine if there existed an immediate danger based on the history and the in-person testimony of the parties.
While we understand that entry of a FRO can have harsh and lasting effects, the DVA does provide that
[u]pon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.However, before a court will entertain an application for dismissal of a final restraining order, a movant must demonstrate "substantial changed circumstances." Kanaszka v. Kunen, 313 N.J. Super. 600, 608-09 (App. Div. 1998). Thus, defendant is free to make an application to vacate or modify this domestic violence order to the family part judge if a change in circumstances has occurred.
[N.J.S.A. 2C: 25-29(d).]
Affirm.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION