Opinion
DOCKET NO. A-4747-11T1
06-20-2014
L.D., Plaintiff-Respondent, v. P.F., Defendant-Appellant.
P.F., appellant pro se. Teper Law Firm LLC, attorneys for respondent (Natalia Teper, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Nugent.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-0531-12.
P.F., appellant pro se.
Teper Law Firm LLC, attorneys for respondent (Natalia Teper, on the brief). PER CURIAM
Defendant P.F. (Peter) appeals the Family Part's April 10, 2012 order denying his motion for reconsideration and to vacate a final restraining order (FRO) entered in favor of plaintiff L.D. (Laila) under the provisions of the Prevention of Domestic Violence Act of 1991 (DV Act), N.J.S.A. 2C:25-17 to -35. We affirm.
We use pseudonyms for the parties for the sake of clarity and confidentiality.
I.
We discern the following facts and procedural history from the record on appeal.
Laila and Peter had a long-term dating relationship. They owned a house together, but Laila had established a separate living space within the house because of the deterioration in their relationship.
On October 22, 2011, Laila filed a complaint alleging that Peter took her cellphone and clothing, and made excessive noise to prevent her from sleeping. The municipal judge in East Windsor Township issued a temporary restraining order (TRO) the same day. The hearing on the initial complaint was adjourned several times. Laila filed an amended complaint on January 4, 2012, alleging several predicate acts of domestic violence, including assault, terroristic threats, criminal mischief, harassment, and burglary. She received an amended TRO.
The matter was tried on February 8. Laila was represented by counsel, and Peter represented himself. Both parties testified, as did Laila's mother. The mother testified that the parties had a dating relationship.
Laila testified that, on October 21, 2011, she received threats from Peter on her cellphone, which he then took from her. She also testified that Peter told her he was "going to have his cousin do more than break [her] nose" and that he, Peter, was going to kill her. At one point, Peter forced his way into Laila's section of the house, which caused her to hit her head and back on the doorjamb. Laila also testified that Peter then punched her in the arm. She produced photographs showing a facial bruise and one on her left arm.
Some confusion was caused by the fact that one photograph showed a bruise on the right arm, although Laila testified that she had been punched on the left arm. Laila explained that the picture suggesting a right arm bruise had been taken by her in a mirror. There was another picture showing a different right arm bruise.
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Laila further testified that Peter's verbally abusive behavior continued into the next day. Although they had breakfast together in the morning, she remained fearful for her safety and eventually locked herself in the bathroom at a different location. She sought the restraining order later that day.
Peter testified that he had never been violent toward Laila and had not done any of the things to which she testified. He also characterized their relationship as more of a friendship. Peter further testified that Laila made him "angry many, many times." He conceded that the police had been called to their house in the past.
The trial judge questioned Laila about why her initial complaint did not allege assault. Laila explained to the judge that the police officer who drafted the initial complaint had not put everything she said into the complaint. The judge listened to an audio tape of Laila's telephone hearing before the municipal judge on the day she filed the first complaint and verified that she had alleged at that time that Peter was hitting her.
The judge found Laila's testimony that she was hit by Peter to be credible and entered the FRO on the basis of the assault. He found that burglary was not a predicate act for the purposes of the DV Act and declined to find a sufficient factual basis for the other grounds alleged in the amended complaint. The FRO prohibited Peter from having physical contact with Laila and from going to the residence or Laila's place of work. The judge declined to order any support for Laila.
On February 20, Peter filed a motion for reconsideration through an attorney, seeking to have the FRO vacated and other relief. Laila filed a cross-motion for support, counsel fees, and other relief. The motions were argued on March 30. The judge explained his reasons for denying most of the relief sought. The judge explained that he based the FRO solely on his credibility determination, supported by the photographic evidence, that Peter had assaulted Laila. As to support and issues related to the jointly owned house, the judge declined to exercise any jurisdiction, noting that a partition action had been filed in the General Equity Part. He also ruled that support was not available in the DV action because the parties were not married and had no children together. Finally, he found Laila's counsel fee request appropriate and reasonable, but wanted to review the papers again on that issue.
The judge entered an order disposing of the cross-motions on April 10. The judge denied Peter's applications for (1) vacation of the FRO, (2) deletion of the requirement that he be fingerprinted, and (3) an order requiring Laila to rent her own apartment. He ordered Peter's attorney to confirm that Laila was permitted to remove her clothing from a storage facility in East Windsor. The judge awarded Laila counsel fees in the amount of $3,500, based upon an hourly fee of $200 and the expenditure of seventeen-and-a-half hours. He denied Laila's requests for support, as well as her request for counsel fees for the partition action. This appeal followed.
II.
On appeal, Peter argues that, because he committed no acts of domestic violence, he should be allowed to return to his residence, should not have to be fingerprinted, and should not have to pay Laila's counsel fees.
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
In adjudicating a domestic violence case, the trial judge has a two-fold task. Silver v. Silver, 387 N.J. Super. 112, 125 (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:25-19[(a)] has occurred." Ibid. "The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim." Id. at 126.
The predicate act at issue here is assault. The judge found, by a preponderance of the evidence, that Laila was truthful when she testified that the bruises on her left arm were caused by Peter when he punched her and that the pictures accurately depicted the results of the encounter. Because his finding was based on substantial evidence in the record that the judge found credible, we are bound by that factual determination under our standard of review.
The testimony and pictures support the judge's finding of assault as defined in N.J.S.A. 2C:12-1(a)(1). That statute provides that "[a] person is guilty of [simple] assault if he: (1) attempts to cause or purposefully, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:11-1(a) defines "[b]odily injury" as "physical pain, illness or any impairment of physical condition." There was also sufficient evidence in the record, found credible by the judge, to support his implicit finding that a restraining order was required to protect Laila from further domestic violence.
Peter points to the fact that Laila did not allege assault in her initial complaint. The trial transcript reflects that the trial judge was also quite concerned about that fact. It was for that reason that the judge verified Laila's assertion that she had mentioned assaultive behavior during her telephone call on the day she applied for and received the TRO. That issue was resolved to the judge's satisfaction, again based on substantial credible evidence in the record.
For these reasons, we affirm the entry of the FRO against Peter and the denial of his motion for reconsideration. There was no basis for vacation of the FRO, which we have determined was appropriately entered following a fair hearing.
The relief entered by the trial judge was also appropriate. N.J.S.A. 2C:25-29(b)(2) allowed the trial judge to give Laila exclusive possession of the parties' residence. We find no abuse of the judge's discretion in doing so, especially given her financial situation. The statute makes clear that issues related to the title of jointly owned property is not affected by the grant of the temporary exclusive possession. The trial judge correctly pointed out that the related issues of ownership, access, and payment of expenses must be resolved in their then pending partition action. N.J.S.A. 53:1-15 requires any person against whom an FRO has been entered to be fingerprinted. Finally, N.J.S.A. 2C:25-29(b)(4) allows for an award of "reasonable attorney's fees." We conclude that the judge's modest award of fees was appropriate and supported by the record.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION