Opinion
DOCKET NO. A-1290-13T2 DOCKET NO. A-1959-13T2
11-18-2014
J.B., Plaintiff-Respondent/Cross-Appellant, v. R.V., Defendant-Appellant/Cross-Respondent. R.V., Plaintiff-Appellant, v. J.B., Defendant-Respondent.
Howard P. Lesnik argued the cause for appellant/cross-respondent in A-1290-13 and appellant in A-1959-13 (Triarsi, Betancourt, Wukovits & Dugan, LLC, attorneys; William P. Lemega, on the briefs). Brian McFadden-DiNicola argued the cause for respondent/cross-appellant in A-1290-13 and respondent in A-1959-13 (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. McFadden-DiNicola, on the briefs).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket Nos. FV-12-386-14 and FV-12-396-14. Howard P. Lesnik argued the cause for appellant/cross-respondent in A-1290-13 and appellant in A-1959-13 (Triarsi, Betancourt, Wukovits & Dugan, LLC, attorneys; William P. Lemega, on the briefs). Brian McFadden-DiNicola argued the cause for respondent/cross-appellant in A-1290-13 and respondent in A-1959-13 (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. McFadden-DiNicola, on the briefs). PER CURIAM
In these appeals, calendared back-to-back and consolidated for purposes of this opinion, appellant R.V. appeals from a September 23, 2013 final restraining order (FRO) entered in favor of respondent J.B. pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. R.V. also appeals the Family Part's separate September 23, 2013 order, denying his application for a FRO against respondent J.B. We affirm both orders.
J.B. filed a cross-appeal challenging the portion of the FRO that granted R.V. parenting time with the parties' children, without first requiring him to undergo a "risk assessment." At oral argument, however, J.B.'s attorney asked that the cross-appeal be deemed withdrawn, and we hereby grant that request.
We derive the following facts from the record. In 2003, R.V. and J.B. were married in India. They have two children, who were both under the age of ten at the time of trial. In 2011, the parties began living in separate bedrooms in the same house.
Both parties were represented by counsel at trial.
On the evening of August 17, 2013, J.B. and her children went to a birthday party for her employer's child. During the course of the evening, J.B. testified she looked at her cell phone and found ten missed calls from R.V. and eight text messages. In at least one of the text messages, R.V. called J.B. an "asshole" and informed her that she could not "be with my kids and that I am abusive to my kids." He also stated he was going to go to India and "fight . . . for the kids." One text stated that J.B. needed "to run back to India, if I think life is important." J.B. interpreted that statement as a "threat" because R.V. "keeps telling me he's hired someone in Delhi to kill my dad. He keeps telling me, also, that I'm going to die soon and see what's going to happen to you. So, I mean, by life is important, that means that."
J.B. and the children returned home around midnight. J.B. went into the kitchen and found some papers concerning a divorce action R.V. told her he had filed against her in India earlier in the year. J.B. took the papers upstairs to her bedroom. As she entered the room, J.B. saw "it was messed up" and that "all the clothes [were] rolled and thrown [i]n one corner." The contents of her dresser drawers had also been disturbed. The parties' son came into the room and told J.B. that his clothes had been taken out of his closet and "thrown all over."
J.B. testified she went into R.V.'s room and found him sleeping in bed. She "pat[ted] him on his back" to wake him. When R.V. awoke, "he was angry" and J.B. asked him, "what do you think you were doing in my room[?]" J.B. stated R.V. called her a "prostitute . . . and then he started hitting me. He slapped me twice and pushed me on the floor . . . ." J.B. testified that, once she got up off the floor, R.V. "started hitting me again and he pushed me again on the floor." As he did so, R.V. yelled, "Prostitute, fuck you, you asshole."
J.B. called the police. After the police arrived, they spoke to R.V. J.B. testified that R.V. "was telling the cops that he's going to kill himself and his wife, me, and the cops are responsible for that."
Officer Fama testified on J.B.'s behalf. The officer stated that, when he arrived at the house, J.B. was "[v]ery distraught and just scared. She . . . feared for . . . her safety and her children's safety." Officer Fama observed that J.B. had "scrape marks. She was kind of swollen red behind . . . the left side of her face and ear." The officer did not observe "any signs of injury on" R.V.
Officer Fama stated that R.V. provided inconsistent accounts of the incident:
At first . . . as [R.V.] explained how he was woken up by his wife[, he stated] he was on one side of the bed and then he was off the bed but then he was up already, and he wasn't up already, and then -- everything was just inconsistent and then finally he
stuck with -- with the one part that he was sleeping and she came in and just started striking him as he was sleeping and that's when he woke up and in self-defense he ended up, you know, pushing her down.R.V. also told the officer that J.B. had tried to "choke him[.]" R.V. told the officer he was drinking on the night of the incident. The police arrested R.V. and removed him from the home.
Later that morning, J.B. obtained a temporary restraining order (TRO) against R.V. based on assault, N.J.S.A. 2C:12-1a(1), and terroristic threats, N.J.S.A. 2C:12-3b. She stated she sought protection because "I feel [R.V.] is going to -- he always tells me he's going to kill my parents, he's going to kill me and somewhere back of my mind I'm scared, also." With regard to prior incidents of domestic violence, J.B. testified that R.V. hit her in 2011 because she "didn't put the trash outside on time."
R.V. testified and denied J.B.'s allegations. He stated he called the police earlier in the evening on August 17, 2013 because he did not know where J.B. was and he was concerned that "probably she's taken the kids forever[.]" He denied sending any text messages to J.B. and stated he only tried to call her once that evening. R.V. admitted he was drinking that night and later went to bed in his bedroom.
While he was asleep, R.V. testified he had a feeling "I was choked by somebody, okay. I was having discomfort, all right, I was having discomfort sleeping." He described the feeling as "[p]ressing like, you know, somebody trying to press with a pillow" on his neck. When he awoke, R.V. stated he "was trying to get the person away from me" and he then realized it was J.B., who was "trying to beat me." As she "again approached" him, R.V. stated, "I kind of, like, you know, pushed her . . . shoulder." He then pushed her a second time. He denied injuring J.B. When the police arrived, R.V. told them he was injured, but "[t]hey said they couldn't see it." He denied threatening to kill J.B.
On August 21, 2013, R.V. obtained a TRO against J.B., alleging she tried to "strangl[e]" him three days earlier. He also asserted that J.B. "put bleach in his soup about" four months before the August 17 incident, and had been throwing out his food and medicine for the past four years. R.V. admitted he had never reported these alleged past acts of domestic violence to the police. He also testified he was "[n]ot really" concerned about his "physical safety . . . but more of, you know, it's more of what me and my kids are going through. I just want to lead a peaceful life, that's all it is."
At trial, R.V. stated that J.B. had been harassing him because he filed for divorce in India in an attempt to "reconcile" with J.B. He also stated he filed an additional pleading in India asserting that J.B. and one of her relatives were harassing him. R.V. did not seek to introduce any of these pleadings into evidence, but he did testify concerning them, as did J.B.
R.V. called Officer Burdick as a witness. The officer testified that, on August 16, 2013, R.V. called the police and asked them to come to the office where J.B. worked. When Officer Burdick arrived, R.V. told him that J.B. refused to give him the keys to a car. When the officer questioned him, R.V. admitted that he "hadn't actually spoken" to J.B. about obtaining the keys and that "there was no dispute like was reported on the 911 call." J.B. testified that, over the two weeks preceding this incident, R.V. repeatedly told her, "I'm going to come to your office and create a scene and embarrass you, see what I'm going to do."
In an oral decision, the trial judge made detailed credibility findings. He found J.B. and Officer Fama to be credible, and that R.V.'s testimony was not credible. The judge noted that R.V.'s account of what occurred was inconsistent. Although R.V. claimed J.B. choked him, the police found no sign of injury that evening. In addition, R.V. never told the police that J.B. had allegedly tried to poison him or throw away his medicine. On the other hand, J.B.'s testimony was consistent with the injuries she sustained.
The judge concluded that J.B. proved both alleged acts of domestic violence by a preponderance of the evidence and that there was a need for a FRO because J.B. "feared for her safety, feared for her children's safety" and was "afraid of and fears [R.V., who] has said that he will kill her." Thus, he granted a FRO to J.B. The judge denied R.V.'s request for a FRO, finding he failed to prove that J.B. assaulted him or that, if she had, there was a need for a restraining order in light of R.V.'s testimony that "he has no fear [for] his own physical safety." This appeal followed.
On appeal, R.V. first contends the judge erred by granting J.B. a FRO. R.V. asserts the evidence does not support the judge's finding that he assaulted J.B. or made any terroristic threats to her. We disagree.
Our review of a trial judge's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A judge's fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. The 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 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 a FRO pursuant to the PDVA, the 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, and terroristic threats, N.J.S.A. 2C:12-3, as conduct constituting domestic violence. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). The judge must construe any such acts in light of the parties' history to better "understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim's continued fear of the perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); N.J.S.A. 2C:25-29a(1). If a predicate offense is proven, the judge must then assess "whether a restraining order is necessary, upon an evaluation of the facts set forth in N.J.S.A. 2C:29a(1) to -29a(6), 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, supra, 387 N.J. Super. at 127).
Applying these standards to our review of R.V.'s first argument, we discern no basis for disturbing the trial judge's decision to grant a FRO to J.B. The judge specifically found that J.B.'s account of the August 17, 2013 incident was credible and there is substantial credible evidence in the record to support that finding.
The predicate act of assault is committed when a person "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]" N.J.S.A. 2C:12-1a(1). "Bodily injury" is "physical pain, illness or any impairment of physical condition[.]" N.J.S.A. 2C:11-1a. See also State v. Stull, 403 N.J. Super. 501, 505 (App. Div. 2008). The trial judge, after making credibility findings, properly applied the statute in concluding that J.B. was the victim of R.V.'s assault. J.B. testified R.V. struck her and pushed her down twice after she woke him up to question him about disturbing her personal belongings. She sustained an injury to her ear, which was plainly visible to Officer Fama when he arrived at the scene.
Similarly, there was ample evidence to support the judge's conclusion that R.V. made terroristic threats against J.B. within the intendment of N.J.S.A. 2C:12-3b. "The crime of terroristic threats . . . is committed when a person 'threatens to kill another with [the] purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.'" Cesare, supra, 154 N.J. at 402 (quoting N.J.S.A. 2C:12-3b). "The pertinent requirements are whether: (1) the defendant in fact threatened the plaintiff; (2) the defendant intended to threaten the plaintiff; and (3) a reasonable person would have believed the threat." Ibid.
Here, J.B. credibly testified R.V. told the police "that he's going to kill himself and his wife, me," and that she believed the threat because R.V. "always tells me he's going to kill my parents, he's going to kill me and somewhere back of my mind I'm scared, also." In view of the assault that occurred on August 17, 2013, and the prior assault two years earlier, the record amply supports the judge's finding that J.B. reasonably believed R.V. would carry out his threats.
With regard to the second prong of Silver, supra, the judge properly found that, due to the prior history between the parties and J.B.'s fear for her safety, a FRO was necessary. Silver, supra, 387 N.J. Super. at 128. We perceive no basis to depart from the judge's findings. Therefore, we affirm the judge's order granting J.B. a FRO against R.V.
We also affirm the judge's decision denying R.V.'s request for a FRO against J.B. As discussed above, the judge found R.V. was not a credible witness and that he failed to prove that J.B. was the aggressor on the night he assaulted her or that he was acting in self-defense when he struck her. There is ample evidence in the record, including J.B.'s credible account of the incident and Officer Fama's testimony that R.V. changed his story several times during his conversation with the police, to support the judge's determination that J.B. did not assault R.V. In addition, R.V. did not meet the second prong of Silver, supra, because he admitted he was not afraid of J.B. and did not fear for his physical safety.
For the first time on appeal, R.V. argues "there were violations of procedural and substantive due process by the trial court when [R.V.] was not afforded the ability to call his [nine-year-old] son as a witness to the entire incident and put forth testimony." However, at trial, R.V. never attempted to call his son as a witness. R.V.'s attorney called only R.V. and Officer Burdick as witnesses, and made no request that the parties' young son testify against his mother. "Because [this] issue never was raised before the trial court, because its factual antecedents never were subjected to the rigors of an adversary hearing, and because its legal propriety never was ruled on by the trial court, the issue was not properly preserved for appellate review." State v. Robinson, 200 N.J. 1, 18-19 (2009). Therefore, we reject R.V.'s contention.
On October 15, 2013, R.V. filed a motion for reconsideration with the trial court in which he sought to reopen the denial of his request for a FRO. In a certification in support of the motion, R.V. alleged his son told him sometime after the trial that J.B. "threw a suitcase on me while I was sleeping" on the night of the incident. On November 19, 2013, the judge denied R.V.'s motion, finding that he lacked jurisdiction to consider it because R.V. had already filed a notice of appeal to this court. R.V.'s notices of appeal do not reference the November 19, 2013 order denying his motion for reconsideration and he never filed an amended notice of appeal. "It is a fundamental [principle] of appellate practice that we only have jurisdiction to review orders that have been appealed to us." State v. Rambo, 401 N.J. Super. 506, 520 (App. Div.), certif. denied, 197 N.J. 258 (2008), cert. denied, 556 U.S. 1225, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009). "[O]nly the judgment or orders designated in the notice of appeal . . . are subject to the appeal process and review[.]" 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004). Therefore, to the extent that R.V.'s argument on this point may actually be directed to the judge's denial of his motion for reconsideration, we decline to consider it.
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In both of his appeals, R.V. also argues the trial judge "refused to recognize, consider and enforce [R.V.'s] [r]estraining [o]rder that was obtained in India in July 2013" and "refused to recognize and consider the contents of the pending divorce before the [f]amily [c]ourt in Chennai, India[.]" Again, we disagree.
R.V. testified he filed for divorce in India in an attempt to "reconcile" with J.B., rather than to actually divorce her. He also stated that, in July 2013, he filed a supplemental pleading alleging that J.B. and a relative were harassing him. R.V.'s attorney did not submit any of the pleadings filed in India into evidence at trial. J.B. testified R.V. told her he was filing for divorce in India, but she had not yet filed an appearance in that matter. The judge considered the parties' testimony concerning the proceedings R.V. initiated in India, but found they had no bearing on, or relevance to, either party's request for a FRO.
In the appendices accompanying his appellate briefs, R.V. has included a "petition for divorce" and what appears to be a request for an injunction against J.B., that he allegedly filed in India. Contrary to R.V.'s contentions on appeal, however, neither document is a "restraining order." Therefore, there is simply no factual basis in the record for R.V.'s contention that the judge failed to "recognize and consider" the pending divorce proceeding in India or to "enforce" a restraining order he "obtained in India" against J.B. Moreover, R.V. never explains how the filing of these proceedings in India would bar J.B. from seeking protection in New Jersey under the PDVA. Therefore, we also reject R.V.'s contention on this point.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION