Opinion
DOCKET NO. A-5416-11T2
06-02-2014
W.B., Plaintiff-Respondent, v. D.B., Defendant-Appellant.
Helmer, Conley & Kasselman, P.A., attorneys for appellant (Patricia B. Quelch, of counsel and on the briefs). Andrew N. Yurick and Joy A. Pearson-Schneck, attorneys for respondent (Ms. Pearson-Schneck, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Ashrafi.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FV-08-1098-12.
Helmer, Conley & Kasselman, P.A., attorneys for appellant (Patricia B. Quelch, of counsel and on the briefs).
Andrew N. Yurick and Joy A. Pearson-Schneck, attorneys for respondent (Ms. Pearson-Schneck, on the brief). PER CURIAM
Defendant appeals from a final restraining order entered by the trial court on May 21, 2012, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
We briefly summarize the relevant facts, based on the testimony presented in the trial court. The parties were married in 1986 and they have two children. Sometime in 2008, defendant filed for divorce. The parties agreed that, during the divorce proceedings, defendant would have sole possession of the marital home and custody of the children.
The divorce proceedings were later dismissed and the parties tried to reconcile. However, in 2012, the relationship deteriorated. The parties worked out an arrangement where they took turns parenting the children, while living in the same home, but ultimately, defendant again filed for divorce.
In April 2012, plaintiff was served with the summons and complaint for divorce. This event appeared to have exacerbated the parties' already acrimonious relationship. The following day, defendant called the police, who told defendant that she should leave the home for the weekend if she felt her husband was upset.
Defendant followed the advice and left for the weekend. She took the two children with her, thereby violating the agreed-upon parenting schedule. Plaintiff then called the police to report what defendant had done. Defendant and the children returned on Monday. The day ended without further incident.
The following day, defendant planned to meet the children at school and spend time with them until 6:00 p.m., at which time plaintiff was to pick up the children. However, plaintiff removed the children from school early and took them to his family's home. Defendant claimed that plaintiff did not inform her of this change of schedule, and only notified her of the change after he had already taken the children.
Plaintiff said when he returned with the children that evening, he walked with them into the garage where defendant was located. The children were sent inside the house. Plaintiff returned to the garage fifteen minutes later and asked defendant to turn out the lights. It seems that the parties had often argued about turning the lights out in the garage.
According to plaintiff, defendant shouted, "Lights out!" and threw a brick out of the garage, which struck plaintiff in the forehead. Defendant denied throwing any object. She claimed she was carrying items to her car at the time. Plaintiff called 9-1-1 immediately, informing the operator that defendant had thrown a brick and hit him in the head.
The police arrived and arrested defendant. Soon thereafter, plaintiff's sister arrived and called for an ambulance to take plaintiff to the hospital. He was released around midnight that same evening and was interviewed by a police officer. Plaintiff requested the issuance of a temporary domestic violence restraining order against defendant. The officer noted a red mark on plaintiff's forehead. The officer also noted that a brick had been seen, lying in the middle of the yard at the parties' residence, alongside the garage.
After hearing closing arguments by the attorneys for the parties, the judge placed his decision on the record. The judge noted that plaintiff had alleged that defendant had committed a predicate act under the PDVA, specifically assault. The judge said that N.J.S.A. 2C:12-1 provides, among other things, that a person commits a simple assault if he or she "attempts to cause or purposely, knowingly or recklessly causes bodily injury to another."
The judge observed that the parties were the only witnesses to the incident and his decision would turn on his assessment of their credibility. The judge found that aspects of both parties' testimony were credible, but plaintiff's testimony was more credible than defendant's. The judge observed that defendant may have been motivated to hurl the brick at plaintiff after he told her to turn out the lights in the garage.
The judge provided several reasons for crediting plaintiff's testimony. The judge said that the photographs introduced into evidence showed an injury to plaintiff's head. Plaintiff had recounted his version of the incident several times, and while there were some differences in his description of what occurred, those differences were not significant.
The judge rejected defendant's claim that plaintiff had created or concocted the brick-throwing incident. He commented that plaintiff said the brick had "grazed" or "glanced" plaintiff's head. The judge observed that if plaintiff was going to create the story, he would have made the incident more dramatic. The judge said plaintiff was concerned that he had been hit with a brick. It was important to him, but he did not "over sell it."
The judge also considered whether plaintiff had established the need for a final restraining order. The judge noted that he found defendant had "picked up a brick and hurled it at" plaintiff. The judge was concerned "these events may escalate," noting that "[t]hese folks are going through a divorce and unfortunately it's gotten nasty."
The judge found the relationship between the parties had deteriorated to the point where they could not act in a civil manner. The judge said, "The relationship is so deteriorated that [a] domestic violence restraining order is necessary[.]"
The judge entered the final restraining order dated May 21, 2012, and this appeal followed. Defendant argues that plaintiff failed to establish by a preponderance of evidence that a final restraining order was warranted.
The PDVA provides that the court may issue a final restraining order "only after a finding or an admission is made that an act of domestic violence was committed by [the accused] person." N.J.S.A. 2C:25-29(a). The term "domestic violence" is defined in N.J.S.A. 2C:25-19(a)(2) to include "assault" under N.J.S.A. 2C:12-1.
As the trial judge recognized, this matter involved an alleged "simple assault." N.J.S.A. 2C:12-1(a) provides that a person is guilty of such an offense if he or she
(1) Attempts to causes or purposely, knowingly or recklessly cause bodily injury to another; or
(2) Negligently causes bodily injury to another with a deadly weapon; or
(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.
Here, the judge considered the testimony presented at trial and found that defendant hurled a brick at plaintiff. Based on that finding, the judge determined that defendant committed a simple assault, by attempting to cause or purposely causing bodily injury to defendant.
Defendant argues that the judge erred in his assessment of the parties' credibility. She says that, taken as a whole, plaintiff's testimony simply cannot be viewed as credible. We disagree.
The findings of a trial judge, sitting without a jury, are binding on appeal when they are supported by sufficient credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Moreover, deference to the trial court's factual findings is "especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
Here, the trial judge had the opportunity to observe the witnesses. He noted that both parties had provided testimony that was in part credible, but found that plaintiff's version of the incident was more credible than defendant's version. The judge provided specific reasons for his credibility findings. We have no basis to second guess those findings.
Defendant further argues that the trial court erred by determining that a final restraining order was required. She contends that the court erred by failing to consider that the parties have been married for twenty-five years and there were no prior acts of domestic violence. She also contends that the court failed to consider the context of the incident, as well as plaintiff's motivation for "creating" an incident of domestic violence.
We note that a finding that a party committed a predicate act of domestic violence does not automatically require the issuance of a final restraining order. Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006) (citing Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999)). The court must evaluate the factors in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) and determine whether a restraining order is necessary "to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.
Here, the record supports the trial judge's finding that, in view of the contentious divorce proceedings and defendant's assault upon plaintiff, a final restraining order was warranted to prevent further acts of domestic violence. The trial judge appropriately determined that the act of domestic violence was sufficiently serious to warrant entry of a final restraining order, regardless of whether there were any prior incidents of domestic violence. The judge also considered the context in which this incident took place.
Defendant further argues that a remand to the trial court is required to determine her mental state when she hurled the brick at plaintiff. Again, we disagree. It is evident from the record that when defendant threw the brick, she did so either purposely, knowingly or recklessly. The testimony presented at the trial was therefore sufficient for the court's finding that defendant had committed a simple assault contrary to N.J.S.A. 2C:12-1(a). Further proceedings on defendant's mental state are not required.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION