DIANE M. STINSON v. DRAKE C. STINSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1946-04T11946-04T1

DIANE M. STINSON,

Plaintiff-Respondent,

v.

DRAKE C. STINSON,

Defendant-Appellant.

______________________________________________________________

 

Submitted October 3, 2005 - Decided

Before Judges Parrillo, Holston, Jr. and Gilroy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-0217-05.

Robert B. Cherry, attorney for appellant.

Diane M. Stinson, respondent, pro se has not filed a brief.

PER CURIAM

Defendant, Drake C. Stinson (Drake), appeals the November 4, 2004 final restraining order entered against him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm.

Drake and his wife, Diane Stinson (Diane) have been married since 1990. Diane alleged that Drake assaulted her on October 24, 2004 at 10:30 a.m. during a verbal argument about Drake's elderly mother (Carolyn). After conducting a plenary hearing, Judge Farber found that Drake had committed a simple assault against Diane and thus an act of domestic violence.

The couple occupied a second-floor marital residence at 20 Andover-Mohawk Road in Andover. Carolyn lived downstairs in a first-floor apartment to facilitate her care by Drake and Diane. Carolyn has a multitude of medical conditions, including Alzheimer's disease and diabetes that require medications dispensed on a twice-daily basis.

Drake testified that on Friday, October 22, 2004, he was too tired to drive home from his work site at the end of the day and instead chose to spend the night at a motel. He contends that he left a message on the parties' home telephone answering machine asking Diane to give Carolyn her medicines and that he would see her tomorrow. Diane testified to calling Drake's work telephone and leaving him a message saying, "I fed your mother but I did not give her her meds."

On Saturday morning Diane went downstairs to feed Carolyn breakfast, and she noticed that Carolyn's right hand was turning purple. Diane drove Carolyn to the Newton Memorial Hospital emergency room where Carolyn was treated and admitted for uncontrolled insulin levels. Diane stayed at the hospital with Carolyn for approximately eight to nine hours before returning home.

Saturday evening Drake returned home and confronted Diane in their bedroom about the whereabouts of Carolyn. After a brief screaming match, in which Diane told him where Carolyn was, Drake drove to the hospital. Drake returned home from the hospital that night with Carolyn. He chose to sleep downstairs in Carolyn's apartment rather than upstairs with Diane.

Diane testified that on Sunday morning, "he came up the stairs screaming and yelling at me, calling me a fucking bitch- fat bitch. It's always fat. And he -- he insisted on her medicines and I couldn't understand why because she was in the hospital." Drake next went back downstairs and briefly left the home. Diane stated that when he returned home and reached the top of the stairs

[h]e swung the door open and I was in the hallway there and he just grabbed me and I -- I backed up and he grabbed me and he shook me. He say (sic), "I want her fucking meds." And he just, you know, shook me and I didn't know why he was going ballistic over the meds.

Diane further asserted that she had red marks on both forearms where Drake grabbed her, followed by bruising the next day, with her right arm having been injured more than her left.

Diane also testified to three prior incidents of reported domestic violence by Drake during their marriage. The first incident occurred on June 25, 1990, when after an argument Drake pushed her from behind down approximately seventeen stairs. Diane went to the police and received medical attention for her injuries. Photographs of her injuries, taken by the police, were admitted into evidence.

The second incident on November 11, 1991 involved a fight between Diane and Drake in their car while driving home from an evening out. Testimony regarding the details of that car-ride fight varied greatly with both accusing the other of being drunk and hostile at the time. Diane went to the police, filed a complaint, and obtained a restraint that was later dismissed. Photographs of her injuries were admitted into evidence.

The third incident on April 24, 2004 resulted in a quasi-criminal complaint and a domestic violence temporary restraining order (TRO) that were later dismissed. Drake, who was drunk, pushed through the closed bathroom door, which was locked with a simple eyehook latch, and pinned Diane against the sink by the forearms. Drake claimed that he merely pushed through the bathroom door not realizing the eyehook latch had been hooked.

Drake contends that Judge Farber's finding of domestic violence resulted from testimony regarding the prior incidents, which were not mentioned in the domestic violence complaint. Drake argues that the 1990 and 1991 incidents are irrelevant due to their age and the fact that all of the past-filed complaints by Diane had been dismissed by her. Drake appeals on the basis that Judge Farber based his findings not on the incident of October 24, 2004, but instead on Drake's "course of conduct" throughout his marriage to Diane. We disagree.

"'Domestic violence is a term of art which describes a pattern of abusive and controlling behavior which injures its victim.'" Bittner v. Harleysville Insurance Co., 338 N.J. Super. 447, 454 (App. Div. 2001) (quoting Corrente v. Corrente, 281 N.J. Super. 243, 246 (App. Div. 1995)). "Accordingly, in determining whether an act of domestic violence has been committed, the court shall include in its consideration whether there has been any previous history of domestic violence between the parties, N.J.S.A. 2C:25-29a(1), whether any immediate danger to the victim exists, N.J.S.A. 2C:25-29a(2), and what is in the best interests of the victim, N.J.S.A. 2C:25-29a(4)." Ibid.

"N.J.S.A. 2C:25-29(a) does not mandate that a trial court incorporate all of those factors, . . . [h]owever, the Act does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.'" Cesare v. Cesare, 154 N.J. 394, 401-02 (1998) (quoting Peranio v. Peranio, 280 N.J. Super. 47, 54, (App. Div. 1995); accord Corrente, supra, 281 N.J. Super. at 248).

The holdings above support Judge Farber's decision to admit into evidence the past acts of domestic violence. Each of the three past acts, although the first two were recognized by the judge as remote in time, had been reported to the police, and were relevant to the present charges. Each past act helps create a more complete picture of the relationship between Diane and Drake as a marriage plagued with incidents of verbal, physical, and possible alcohol abuse.

Drake relies on our decision in J.F. v. B.K., 308 N.J. Super. 387 (App. Div. 1998). In J.F., we explained: "It constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint." Id. at 391-92. The facts here are distinguishable from the facts in J.F. In J.F., the trial court rested its finding of harassment not on the incident alleged in the complaint but on events four years prior to those asserted in the complaint. In its decision, the court never mentioned the facts before it, which on their face were not harassing but rather consisted of a very innocuous note placed by the defendant on the plaintiff's windshield asking to talk to her. In reversing the trial court's decision, we stated:

We are satisfied that absent a showing of surrounding circumstances which could support a finding that such ordinarily innocuous conduct constituted an act of harassment within the intent of N.J.S.A. 2C:33-4, such conduct could not establish the predicate crime for a finding of domestic violence.

[Id. at 391.]

In this case, Judge Farber made clear that he found that a simple assault had occurred solely on the testimony concerning the October 24, 2004 complaint before him and that the testimony relating to the prior incidents only corroborated his decision. The judge stated, "The event alone that happened on October 24th is sufficient to find that he has committed an act of domestic violence. I can find all the elements in what he did."

The judge also based his decision on his credibility determinations:

This case comes down to a - - question in great part of credibility. I agree . . . that the defendant has huge gaps of credibility in his testimony.

. . . .

I found her testimony to be credible. In watching her, she relived -- you could tell, relived some of the things that she was describing to the court.

Drake contends that evidence of an American Express credit card bill in Drake's name that Diane obtained from his mail and a letter written by Drake's attorney in 1986 concerning Drake's in-patient stay for alcohol rehabilitation should have been excluded from evidence because they were improperly obtained by Diane and irrelevant. Drake argues that the bill should have been excluded from evidence as a violation of his Fourteenth Amendment right to due process. "[T]he Fourteenth Amendment, which prohibits the states from denying federal constitutional rights and which guarantees due process, applies to acts of the states, not to acts of private persons or entities." Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S. Ct. 2764, 2769, 73 L. Ed. 2d 418, 425 (1982). In this case, Diane's status is that of a private citizen, not a state actor. Therefore, the due process clause did not preclude the admission of Drake's American Express bill.

Drake's also contends that a 1986 letter from his attorney to a judge regarding his admittance into a rehabilitation facility for alcohol abuse should have been excluded because it constituted a confidential communication between lawyer and client, in the course of their professional relationship, thus falling under the protection of the attorney-client privilege. The argument is incorrect. The privilege only proscribes disclosure of confidential "communications" between attorney and client. In this case, the letter clearly was disclosed to a third party, the judge, thus not qualifying as a confidential communication between lawyer and client under N.J.R.E. 504.

Drake further argues that he did not possess the requisite intent to support the judge's finding that he committed a simple assault. Drake asserts that the surrounding circumstances establish that when he grabbed and shook Diane on October 24, 2004, that he did not intend to cause bodily injury to her, but that he was merely reacting to Diane's indifferent attitude towards Carolyn's physical well-being.

A person is guilty of simple assault if he "[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 defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a. Very little evidence is required to show bodily injury. For example, the stinging sensation caused by a slap is adequate to support the findings of an assault. State v. Downey, 242 N.J. Super. 367, 371 (Law Div. 1988).

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." Matter of J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

We are satisfied that Drake's grabbing Diane's arms in a fit of rage and shaking them with sufficient force to leave red marks and bruises, met the requisite mental state and level of bodily injury necessary to constitute a simple assault. We are convinced that the relevant credible evidence supports Judge Farber's finding that on October 24, 2004 Drake committed a simple assault against Diane that constituted an act of domestic violence.

 
Affirmed.

(continued)

(continued)

10

A-1946-04T1

RECORD IMPOUNDED

October 20, 2005