Opinion
DOCKET NO. A- 4688-12T2
09-15-2014
J.C.R., Plaintiff-Respondent, v. M.R., Defendant-Appellant.
Hoffman DiMuzio, attorneys for appellant (James M. Carter, on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Nugent. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FV-17-429-13. Hoffman DiMuzio, attorneys for appellant (James M. Carter, on the brief). Respondent has not filed a brief. PER CURIAM
After a trial at which both parties testified, Judge Kevin T. Smith rendered an oral opinion and entered, in plaintiff J.C.R.'s favor, a final restraining order (FRO) against her husband, defendant M.R., pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Defendant appeals, arguing in a single point that the judge's factual findings are not supported by the evidence, that plaintiff's six-month delay in commencing the action counseled against the relief sought, and that the judge failed to determine whether plaintiff had a present need for the FRO, pursuant to Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
After hearing the parties' testimony, the judge concluded that defendant assaulted plaintiff in their home and that the FRO was needed for her future protection. Plaintiff, whom the judge found credible, testified that, during an argument on October 13, 2012, defendant became "extremely irate," "trapped" her in a bedroom, and yelled and cursed at her. Defendant then "charged" at plaintiff and "got [her] down to the floor." After she extricated herself, plaintiff entered a bathroom to take a shower, locking the door behind her. Defendant "busted through the bathroom door, breaking the door, ripped down the shower curtain," and again yelled and cursed at plaintiff. He "got [plaintiff] by the throat," forcing her to the floor. And, with one hand on her throat and the other fist raised "as if to hit" her, defendant continued to scream at plaintiff.
Defendant admitted they had an argument, but he denied that he physically attacked plaintiff or that he did the damage depicted in the photographs plaintiff presented at trial. The judge found plaintiff more credible than defendant. He concluded that the event described by plaintiff did in fact occur and that it constituted an assault, N.J.S.A. 2C:12-1(a). The judge's findings are well-grounded in the evidence and are entitled to our deference. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Defendant argues the FRO was unwarranted because of plaintiff's delay in commencing this action. The record reveals, however, that a few days after the assault, plaintiff discovered five or six pictures of her teenage daughter, standing naked in the shower, in defendant's cellphone. Plaintiff reported this to police, who came to the house and arrested defendant. Defendant was charged with endangering the welfare of a child, incarcerated and unable to make bail. When defendant was released from incarceration approximately six months later, plaintiff immediately commenced this action. We reject the argument that plaintiff's six-month delay in these circumstances precludes her right to relief under the Act. Plaintiff was entitled to assume she was adequately protected by defendant's incarceration and was justified in waiting to seek relief pursuant to the Act until defendant was released.
Although not explicitly stated in the record, the parties' testimony establishes that defendant was not the father of plaintiff's three children.
Lastly, defendant argues, citing only Silver, that the judge failed to make a finding that plaintiff was in need of a restraining order. Defendant misconstrues Silver as requiring such an express finding in all cases. Indeed, we observed in Silver that this question is "often perfunctory and self-evident." 387 N.J. Super. at 127. Only those matters in which the defendant has engaged in verbal harassment or other conduct unaccompanied by actual physical violence, or the threat of physical violence, generate an acute interest in the judge's findings on this point. Here, the judge found that defendant physically assaulted plaintiff; it was not, therefore, necessary for the judge to actually express or deeply explore plaintiff's need for the FRO. Having said that, we nevertheless observe that the judge did make findings on this factor. He observed that the FRO was necessary in light of the nature of the predicate act (a physical assault), defendant's demeanor, and the past history of domestic violence. These findings fulfill the concerns expressed in Silver and are grounded in the evidence; they are entitled to this court's deference. Cesare, supra, 154 N.J. at 111-12.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION