Opinion
DOCKET NO. A-3146-11T1
02-19-2013
C.G., Plaintiff-Respondent, v. G.G., JR., Defendant-Appellant.
Donna T. Tamayne, attorney for appellant. Ellen Jo Gold, attorney for respondent.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Lisa.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-001252-12.
Donna T. Tamayne, attorney for appellant.
Ellen Jo Gold, attorney for respondent. PER CURIAM
Defendant, G.G., appeals from a final restraining order (FRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, on behalf of plaintiff, C.G., his wife. We affirm.
The record reveals that on December 22, 2011, plaintiff obtained a temporary restraining order (TRO) against defendant. On January 3, 2012, she obtained an amended TRO.
At the FRO trial, plaintiff testified that on December 22, 2011, she came home from work and defendant told her to pack her belongings and get out with the children. Plaintiff went into the dining room and defendant followed, calling her vulgar names like "whore" and "bitch." Then, according to plaintiff, he came toward her and said he was going to punch her in her face. Plaintiff stated that she became afraid, ran into the kitchen, picked up her phone and dialed 911. Plaintiff related that defendant followed her, grabbed her phone, then got a hammer from a cabinet and angrily told her he was going to smash the phone. He went out on the patio, telling her to come to watch him smash the phone. At that time the police arrived. After speaking to both parties, the officers arrested defendant and took plaintiff to the police station to obtain a TRO.
Additionally, plaintiff testified that there was a history of domestic violence by defendant. Plaintiff acknowledged that the parties had been having marital difficulties for some time. She reported that she had been subjected to insulting and humiliating epithets on a daily basis, often in front of the children. Plaintiff related, as an example, that on December 21, 2011, she was getting the three children ready for school while he called her highly insulting and offensive names in front of them and said that she was going to hotel rooms and having sex with different men.
Additionally, on November 21, 2011, plaintiff ran a fund raising event for her children's school at a popular restaurant. Because she kept defendant waiting while the committee counted the money, he went into a rage in front of the committee and others in the restaurant, again loudly calling her insulting names and using foul language. When they arrived home in separate cars, defendant told plaintiff to go to her bedroom. After plaintiff said she wanted to relax a few minutes in the living room, he upended the chaise lounge she was reclining on, forcing her off of it.
Further, on June 28, 2011, plaintiff reported that after she came home from work and was giving the children showers, defendant began to call her offensive names and make accusations of infidelity. When she closed and locked the bathroom door to get away from his insults, he punched the door open, causing it to fall on her. Plaintiff testified that defendant's behavior made her afraid and upset, particularly his continuous barrage of insults and accusations in front of the children.
In his testimony, defendant denied most of plaintiff's allegations. He acknowledged that the parties argue frequently but claimed that the arguments and insults were mutual. He reported that plaintiff often called him insulting names and told the children he was mean to her. He stated that on December 22, he and plaintiff had been arguing all day by text and phone. He denied threatening plaintiff but admitted that after he saw her make a phone call to someone, he grabbed the phone and told her, "I am going to break your phone." Defendant felt he had a right to take it from her because he paid the phone bill. However, he did not intend to destroy it because he could not afford to replace it.
Defendant conceded that he forced open the bathroom door when plaintiff locked it while she was giving the children showers but denied that the door flew off the hinges. He also acknowledged that he yelled at plaintiff in the middle of the restaurant but explained that he was upset because he had waited so long and plaintiff failed to thank him. He stated that when they returned home he told her to go to her room but she refused and they continued to argue.
Plaintiff provided a witness who corroborated her testimony concerning defendant yelling at her in the restaurant. The police officer who came to the home on December 22 testified that, when the police arrived, plaintiff seemed calm and credible and defendant was belligerent.
At the close of the trial, the judge concluded that defendant had harassed plaintiff in that he had engaged in a course of alarming conduct on December 22 and that his reported behavior of constantly calling plaintiff vulgar names and demeaning her in front of the children was done with the purpose to alarm or seriously annoy her. The judge observed that given the situation of the deteriorating marriage people sometimes behave harshly towards the other spouse. However, viewing defendant's behavior as a whole, the judge found, "The bottom line is the conduct of the defendant in this case stepped over the bounds of the law." The judge also noted that defendant's behavior demonstrated that "defendant can easily lose control." Having found that the predicate act of harassment had occurred, the judge concluded that a restraining order was necessary because of the history of violence and the risk of future violence. This appeal followed.
On appeal, defendant contends that the trial judge erred in finding that defendant's behavior amounted to harassment when it was merely a domestic dispute common in deteriorating marriages. Additionally, defendant claims that the judge erred in finding that defendant acted with a purpose to harass, which is required to conclude that a course of conduct constituted harassment under N.J.S.A. 2C:33-4. Lastly, defendant maintains that the court did not properly find that an FRO was necessary to prevent future abuse. We are not persuaded by these arguments.
Our standard of review in domestic violence matters is exceedingly circumscribed. In particular, we must defer to the trial judge's factual findings unless they are shown to be not reasonably supported by the record and thus "clearly mistaken" or so "wide of the mark" as to result in a denial of justice. C.M.F. v. R.G.F., 418 N.J. Super. 396, 401 (App. Div. 2011) (quoting Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We must accord considerable weight to the trial judge's findings of credibility. Cesare v. Cesare, 154 N.J. 394, 412 (1998). As the Supreme Court has emphasized, we owe special deference to the expertise of the Family Part in making often difficult judgments about the lives of families and children. See E.P., supra, 196 N.J. at 104; Cesare, supra, 154 N.J. at 413.
In adopting the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, the Legislature intended "to assure the victims of domestic violence the maximum protection from abuse the law can provide." Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995) (quoting N.J.S.A. 2C:25-18). The term "victim of domestic violence" refers to persons protected by the Act and includes a person who is a "spouse," as plaintiff is here. N.J.S.A. 2C:25-19d.
"Domestic violence" means an occurrence of one or more of the fourteen specific criminal acts inflicted upon a person protected by the Act. N.J.S.A. 2C:25-19a. Here the judge found the predicate act of harassment, specifically that defendant "with purpose to harass another" engaged in a "course of alarming conduct or repeatedly committed acts with purpose to alarm or seriously annoy [another] person." N.J.S.A. 2C:33-4c. "A finding of a purpose to harass may be inferred from the evidence." State v. Hoffman, 149 N.J. 564, 577 (1997) (citing State v. McDougald, 120 N.J. 523, 566-67 (1990)). A judge may find prohibited conduct from an ambiguous incident based upon the parties' past history of violence. Cesare, supra, 154 N.J. at 402.
However, the commission of one or more of the enumerated acts does not automatically require the issuance of an FRO. Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). The court must also take into account other factors, including the prior history of domestic violence between the parties and the existence of immediate danger. N.J.S.A. 2C:25-29a. See also Peranio, supra, 280 N.J. Super. at 54. Thus, in considering a complaint for domestic violence, a judge has a "two-fold" task: "[f]irst, 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"; and second, "whether a domestic violence restraining order is necessary to protect [a] plaintiff from immediate danger or further acts of domestic violence." Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006).
Here, the trial judge heard the testimony and listened to and observed the witnesses, then thoroughly articulated his findings. We will not second-guess a Family Part judge's fact-findings. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). If adequately supported by the record, we must defer to the findings of the trial judge, who is in a much better position to determine whether the evidence presented proved both the predicate offense and the need for a restraining order. Cesare, supra, 154 N.J. at 413.
Applying the circumscribed review standard here, we accept the trial court's findings, as they are supported by substantial credible evidence in the record. Accordingly, we find no basis to disturb the judge's conclusion in accordance with Silver, supra, 387 N.J. Super. at 125-26, that defendant committed an act of domestic violence and that plaintiff needed the protection of an FRO.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION