LINDA LITTON v. YEHUDA LITTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2054-04T22054-04T2

LINDA LITTON,

Plaintiff-Appellant,

v.

YEHUDA LITTON,

Defendant-Respondent.

 

Submitted: September 14, 2005 - Decided:

Before Judges Fall and Grall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket Number FV-13-879-05A.

Jacobowitz, Grabelle, DeFino, Latimer, Fradkin, Comer & O'Toole, attorneys for appellant (Edward Fradkin, of counsel and on the brief).

Paras, Apy & Reiss, attorneys for respondent (Bonnie M.S. Reiss, on the brief).

PER CURIAM

This is a domestic violence case. Plaintiff Linda Litton appeals from an order entered on December 10, 2004, dismissing her complaint filed against defendant Yehuda Litton pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The following factual and procedural history is relevant to our consideration of the arguments advanced by the parties on appeal.

The parties are married and have two children. The same trial judge who issued the December 10, 2004 order under appeal had dismissed a prior domestic violence complaint that plaintiff had filed against defendant, after conducting a final hearing on February 2, 2004. In August 2004, the parties agreed to submit to binding arbitration of all claims between them before a Rabbinical Court.

However, on November 1, 2004, plaintiff filed a complaint in municipal court against defendant under the PDVA, alleging that he had committed acts of harassment, assault and false imprisonment, stating:

Defendant grabbed victim by arms and threw her into a wall. Defendant also kept victim from leaving the house. Defendant harassed and verbally abused victim.

Based on that complaint, the Millstone Township Municipal Court Judge issued a temporary restraining order (TRO) against defendant, and scheduled the matter for a final hearing in the Family Part on November 9, 2004. On that date, the Family Part issued an amended TRO, and rescheduled the matter for a final hearing on December 8, 2004.

On November 12, 2004, plaintiff filed a complaint for divorce against defendant in the Family Part.

An evidentiary hearing was conducted in the Family Part on plaintiff's domestic violence complaint on December 8, 9, and 10, 2004. After considering the testimony, the judge made the following findings:

Let me say this, . . . I believe I know what happened on November the first. . . .

I'll tell you right from the get go, I believe that [defendant] grabbed [plaintiff's] arms. I believe that [defendant] caused bruising to her arms. I believe that to have happened. I believe that that occurred. The question is, will that rise to the level of the issuance of a restraining order.

I believe that [plaintiff] did not tell [defendant], despite their very specific directives that they give notice to each other. I believe that she did not tell him that she was taking Layvi to a Bris on Monday morning November the first. And I believe that she was trying to leave the house with him very early without having [defendant] know what was going on.

She went out. She started her car, she put her pocketbook in the car. She had Layvi's clothes all packed in the car. The car was ready to go. She was all ready to take him and run out the door.

She wanted to leave with him that day. And she didn't want [defendant] to know because she knew he would be angry. She knew he would not consent. She new he'd rather Layvi be in school. She knew that this was something he would never have agreed to.

And so, the question I have to answer in my mind is, does that rise to the level of domestic violence. I believe that she went down just as she said, and I believe that she made her coffee, and she got everything ready to go, and she had Layvi dressed in a way, whether he was in his night clothes or in his street clothes, it really doesn't matter. She had no intention of having him, you know, get ready in any fashion in the home. She was going to pick him up, put [him] in the car, and take off and go. And she knew [defendant] wouldn't consent to that.

And [defendant], I believe, is in his night clothes. He comes out because he hears over the intercom that [plaintiff] is in the room getting Layvi, and they have a situation. And I believe [plaintiff] when she said that he stood in the doorway. I believe he was asking where are you going. And I believe that she was not responding directly to him, and I get that from her own testimony. She didn't turn to him and say, there's a Bris. You overheard me say it.

She's talking to Layvi trying to go around the whole issue. And it's something I don't understand. I don't understand the relationship these two parties have. I don't. I've tried. I've struggled with it.

I don't understand how someone in January could tell me, Judge, I am scared to death of him, I've been scared of him for five years. And then a week or so, two weeks after I dismiss the last restraining order, she moves back in and is sleeping next to him. I've struggled to try to understand that.

* * * *

And [plaintiff] has been here. I find her to be extremely intelligent and articulate. She says what she means. And that's why I do believe her. I believe that [defendant] grabbed her by the arms. I believe that that happened.

* * * *

I believe that there was an encounter in the bedroom early that morning. I believe that [plaintiff] did not respond directly to [defendant].

I believe that [defendant] was frustrated. And I believe that he grabbed her arms and once Layvi was getting upset, I believe Layvi was getting upset, that he realized the situation was escalating and let them go. Even though he walked out to the car, I do not find that he did anything to stop them from leaving.

After making those findings, the trial judge permitted counsel to present additional argument. After briefly recessing, the trial judge placed the following conclusions on the record:

All right, we're back on the record. There were some cases that I wanted to review, since I've already made may findings of fact. And I spoke of this case before and it's really the case that came to mind as I was hearing this case, because I do believe that it was terribly wrong of [defendant] to have, as I found, grabbed [plaintiff's] arms, and caused marks, bruising on her arms.

* * * *

Now, do I think both of these parties have done things in the past several months that are incredibly wrong, such as removing things from the home. Each of them [has] taken actions that are contrary to a family-type interest.

* * * *

So again, even though I find that [defendant] did grab [plaintiff], when I think about domestic violence and I think about the significance of it, there is no doubt in my mind, I have witnessed these parties before me now, I think this is my sixth occasion. Not all the occasions have been long occasions, but this is my sixth occasion when they're before me.

And the one thing I've learned in sitting in this exclusive case type for the last year and a half, is I can sense when somebody's genuinely afraid. I can. Do I believe that [defendant] is going to come over to your home or to your mother's home in Lakewood and harm you? No. I do not. Do I believe that [defendant] is going to take some action to physically harm you that would require the issuance of a final restraining order in favor of you? I do not believe that.

I believe that what occurred on November the first was very wrong that he grabbed you. I believe you, I believe it was wrong that he grabbed you. But there are things that I have to think about and whether or not to impose a final restraining order.

Again, my thoughts were brought to the case of Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995), . . . that was drafted by now Supreme Court Justice Virginia Long. And there Justice Long said, "[d]omestic violence is a term of art which describes a pattern of abusive and controlling behavior which injures its victim. . . . The Prevention of Domestic Violence Act was New Jersey's response to this problem." [Id. at 246-47.] And then the court went through the legislative findings. And Justice Long went on to write: "These findings indicate that the focus of the Legislature was regular serious abuse between spouses. That this is so is underscored by the references to torture, battery, beatings, and killing in the findings." [Id. at 247.]

* * * *

And Justice Long wrote: "However, it is clear that the drafters of the law did not intend that the commission of any one of these acts automatically would warrant the issuance of a domestic violence order. The law mandates that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present. . . . This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened." [Id. at 248.]

That is an extremely compelling quote. And the reason it's extremely compelling is because I believe that this was an isolated incident. I do not believe that [defendant] is an abuser. These parties have been married for over 20 years. They have now a six-year-old son. And I find that it seems, from the testimony from this hearing and the last hearing, that these parties have essentially been unhappy since Layvi's birth. They've been unhappy that many years.

But is [defendant] a domestic violence abuser? No. He might not be a good husband. That I think could be safely said. He's not a good husband to [plaintiff]. . . . But that doesn't make him a domestic violence abuser. . . .

* * * *

But the question is, does this event on November first rise to the level of domestic violence. I do not believe it does. I do not believe that there is any immediate threat to [plaintiff's] safety. I do not believe that [defendant] poses a threat to her safety. I believe that this was an unfortunate incident on November the first.

I'll go back to Justice Long's decision in Corrente v. Corrente, [supra,] and she says: "What occurred between these parties . . . was a conflict over finances and possession of the marital premises[,]" [281 N.J. Super. at 250,] in that particular case. And she went on to say that: "The domestic violence law was intended to address matters of consequence, not ordinary domestic contretemps such as this." [Ibid.]

The trial judge then issued an order dismissing plaintiff's domestic violence complaint. On appeal, plaintiff argues that the trial court erred by failing to issue a FRO against defendant after repeatedly finding that defendant had assaulted plaintiff.

After analyzing the record in the light of the written arguments presented by the parties, we affirm substantially for the reasons expressed by Judge O'Brien Kilgallen in her oral decision delivered on December 10, 2004. We add the following.

Our review of the fact-finding function of a trial judge is limited to a determination as to whether the findings of the court are supported by adequate, substantial, credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Generally, we do not disturb the factual findings and legal conclusions of a trial judge "unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484. Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Cesare, supra, 154 N.J. at 413.

Here, although the trial judge concluded that defendant acted inappropriately, she found that his isolated actions on November 1, 2004 did not endanger plaintiff's life, health or well-being, nor pose a danger of domestic violence. Applying these standards, we are satisfied that the factual findings and legal conclusions of the trial judge are supported by adequate, substantial, credible evidence contained in the record on appeal and do not offend the interests of justice.

 
Affirmed.

(continued)

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10

A-2054-04T2

RECORD IMPOUNDED

October 6, 2005