Opinion
DOCKET NO. A-6051-10T3
01-23-2013
R.I., Plaintiff-Respondent, v. J.I., Defendant-Appellant.
Joseph V. Maceri argued the cause for appellant (Damiano Law Offices, attorneys; Mr. Maceri, of counsel and on the brief). Jessica Ragno Sprague argued the cause for respondent (Weinberger Law Group, LLC, attorneys; Ms. Sprague, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Grall and Ashrafi.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-2472-11.
Joseph V. Maceri argued the cause for appellant (Damiano Law Offices, attorneys; Mr. Maceri, of counsel and on the brief).
Jessica Ragno Sprague argued the cause for respondent (Weinberger Law Group, LLC, attorneys; Ms. Sprague, on the brief). PER CURIAM
Defendant J.I.'s appeal from a final restraining order entered on a complaint her husband, plaintiff R.I., filed pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, returns following a remand to permit the judge to amplify his decision, R.I. v. J.I., No. A-6051-10 (App. Div. Oct. 17, 2012).
Plaintiff alleged simple assault, N.J.S.A. 2C:12-1(a)(1), harassment, N.J.S.A. 2C:33-4, and terroristic threats, N.J.S.A. 2C:12-3. A final restraining order (FRO) may issue only if the judge finds that: the plaintiff and the defendant have a relationship bringing the conduct within the Act, N.J.S.A. 2C:25-19a, -19d; defendant committed an act designated as domestic violence, N.J.S.A. 2C:25-19a; and the "'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) (quoting Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006) which discusses N.J.S.A. 2C:25-29b).
In his initial decision, the judge determined that J.I. assaulted her husband but did not clearly articulate the factual basis for that determination or address the need for the FRO. Accordingly, we remanded so the judge might consider the record developed at the hearing on the FRO and amplify and clarify his findings of fact and legal conclusions in conformity with Rule 1:7-4 and our decision. The parties were given fifteen days from the filing of the judge's supplemental decision to submit supplemental briefs. Plaintiff filed a supplemental brief on November 29, 2012. As of January 11, 2013, defendant had not filed an additional brief. Accordingly, the appeal was resubmitted to us for decision following remand.
The evidence presented at the hearing on the final restraining order is summarized in our prior decision. R.I., supra, slip op. at 2-6. We incorporate that recitation of the facts by reference here.
The judge has now provided these findings and conclusions with respect to assault:
On June 20th 2011 the defendant purposely attempted to cause and did cause bodily injury to the plaintiff by[:] throwing iced coffee at plaintiff which hit him on his left side; throwing and attempting to hit the plaintiff with spray bottles; throwing and striking the plaintiff with a clay pot which hit the plaintiff in his legs and; finally, swinging a blue handled mop at the plaintiff and striking him on his arm as he tried to defend himself. Plaintiff's arm was bruised as a result of being struck by the mop. I find that the plaintiff suffered bodily injury as a result of the deliberate actions of the defendant. Defendant's actions in this regard were in violation of N.J.S.[A.] 2C:12-1a(1). I find that plaintiff has proven by a preponderance of the evidence, that defendant committed the predicate act of assault on that date.
In addition, the judge made these supplemental findings on the need for a retraining order:
This [c]ourt additionally finds that the defendant followed the plaintiff about the house with a knife pointed at him on or about May 9th 2011. Plaintiff additionally testified to the defendant's history of drug abuse and emotional problems. Considering all of these circumstances, this [c]ourt finds that the defendant poses an immediate danger to the person or property of the plaintiff.
In reviewing a judge's decision to issue a final restraining order, we must affirm if there is sufficient evidence to establish an act of domestic violence and the need for a restraining order. See J.D., supra, 207 N.J. at 488; Cesare v. Cesare, 154 N.J. 394, 413-16 (1998). Moreover, because judges of the Family Part "have been specially trained to detect the difference between domestic violence and more ordinary differences that arise between couples," their determinations on the need for a restraining order are also entitled to deference. J.D., supra, 207 N.J. at 482.
The judge, who has expertise in such matters and had the opportunity to evaluate the testimony and resolve the disputed facts, has now found all of the elements of simple assault. Specifically, the judge has found that plaintiff established that defendant purposely attempted to and succeeded in injuring plaintiff by striking and bruising him with a mop and striking him with a clay flower pot that hit him in the leg. See N.J.S.A. 2C:12-1a(1) (defining simple assault as attempting to or purposely, knowingly or recklessly causing bodily injury to another); N.J.S.A. 2C:11-1a (defining bodily injury to include physical pain).
The conclusion that defendant's conduct amounted to simple assault is adequately supported by the record. The unstated inferences underlying that determination are that defendant acted with purpose to and actually did cause plaintiff pain. Those inferences are available from evidence that the blow defendant landed with a mop left a bruise and the clay flower pot she threw at his leg struck him. See generally State v. Stull, 403 N.J. Super. 501, 506 (App. Div. 2008) (noting that even where there is no direct testimony establishing the pain experienced by a victim, pain may be inferred based on evidence of the nature of the aggressive acts).
The judge also articulated a permissible basis for his determination that a restraining order was necessary to avoid an immediate danger to plaintiff. The findings underlying that determination are also supported by the record. In this respect, the judge credited plaintiff's version of a prior argument and rejected defendant's account of that incident. The judge found that during the argument defendant had followed plaintiff around their house pointing a knife at him. While we may have reached a different conclusion about the relevance of that conduct to present danger, we cannot conclude that the judge's determination was so wide of the mark that intervention is warranted to correct an injustice. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); Cesare, supra, 154 N.J. at 413.
Because the judge's determinations are "based on findings of fact which are adequately supported by the record," we affirm the FRO. R. 2:11-3(e)(1)(A).
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION