LISA PAMULA v. ANTHONY G. TORELLI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6567-03T26567-03T2

LISA PAMULA,

Plaintiff-Respondent,

v.

ANTHONY G. TORELLI,

Defendant-Appellant.

_____________________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Law Division, Morris County,

FV-14-1566-04.

Robert J. De Groot, attorney for appellant.

Haber & Silver, attorneys for respondent

(Karin Duchin Haber, of counsel and on the

brief; Carol Matula, on the brief).

PER CURIAM

Defendant Anthony Torelli appeals from the entry of a final restraining order (FRO) entered in favor of his ex-wife, plaintiff Lisa Pamula, pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -33. We reverse.

The incident giving rise to the FRO took place on June 18, 2004 in the parking lot of the Minuteman Restaurant in Harding Township during an exchange of the parties' five-year-old son, Matthew, for weekend visitation with his father. Defendant arrived at the location with his fiancée Leanne Bucci, and her seventeen-year-old daughter, Jenna Bucci. Matthew was resistant to going with his father. This was not the first time that the child had displayed such behavior. Indeed, it had just happened two days earlier, resulting in defendant leaving without Matthew. In any event, Matthew was crying and kicking when defendant took him from plaintiff's car. The child, who was described as distraught, was placed in the back seat of defendant's car along with Jenna. Leanne was in the front passenger seat. Defendant got into the driver's seat of his car. However, Matthew apparently was not securely buckled into his car seat and attempted to open the door to get out. Plaintiff saw what was happening and ran to defendant's car, screaming. In the meantime, Jenna was trying to restrain Matthew, and Leanne also tried to assist by climbing over the front seat into the back.

At that point, testimony from the participants, as well as an unrelated eyewitness, diverged in some significant respects. As a result, we refer to the trial judge's findings. The rear door was opened slightly by Matthew and remained open as the child continued to try to get out of the car. Defendant had reason to know that the door was still open, but chose to start moving, despite plaintiff going around the front of the car to the open rear door, yelling for him to stop. As the judge said:

defendant should have clearly known that the plaintiff was around the side of the vehicle; the door was still open; the child was not secure. And the -- it appears and I make a finding that this defendant was upset, he was aggravated from the problems that had come about. And I would say that a lot of the problems were not totally caused by him. The child's upset. He's suggesting the child's -- the upset level of the child is being encouraged by the plaintiff. And I can't make that finding. The child clearly has issues that need to be professionally dealt with. But the child was upset. They got him upset. He just wanted to get out of there.

The judge did not find, as plaintiff had testified, that she was actually leaning into the car when defendant began to move the vehicle. However, it seems clear that she was at least holding onto the vehicle and fell or stumbled to the ground. In the process, the car ran over her foot.

The day after the incident, plaintiff sought and was granted a temporary restraining order which alleged assault as the designated act of domestic violence. See N.J.S.A. 2C:25-19a(2). After trial in the Family Part, the FRO was entered on July 7, 2004. Defendant appeals, arguing that the trial judge: 1) applied the wrong standard of recklessness; and 2) erred in awarding plaintiff counsel fees. We agree with defendant's first contention and therefore have no need to address the second.

At the outset, the judge found that defendant's action was not intentional, that is, he did not intend to strike plaintiff. Accordingly, the judge saw the question before him as being whether defendant acted "in a reckless way." The judge's finding on that issue was as follows:

The Court looked at some of the case law. And, of course, we have willful, wanton are words that are used in our statutes, particularly under reckless driving. That's not what he's necessarily being charged with here. I'm to make a determination, I believe, as to whether the conduct was reckless here. He drove in a willful or wanton manner, disregard of the

-- as the statute reads under 39:4-96, reckless driving, you drive a vehicle heedlessly or in willful -- willful or wanton disregard of the rights or safety of others in a manner so as to endanger or to -- or be likely to endanger a person or property.

I find listening to the testimony today the door was opened; the child was unsecured; there was a lot of yelling going on. The defendant knew full well that the plaintiff was around the side of the car. He had already been told by her, I find, don't move this car until he's secured. And I find as a fact that he went forward, knowing all of those factors to still be in existence. I find today that that is recklessness. That this plaintiff could very well have been run over by the vehicle. He didn't want to wait -- I don't find him credible to tell me today that he didn't know either where she was or what was going on. He wasn't waiting for the door to be secured. He wasn't waiting for his son to be settled down. He just wanted to get of there. And I find he did it in such a way that it endangered the safety of the plaintiff. And, as a matter of fact, ran over the foot of the plaintiff.

The Court finds, therefore, that an assault did occur today. I won't go to say whether it was an aggravated or simple. I would tend to say it was more on the simple assault. The aggravated, I believe, would cause some additional details that I don't believe are before me. And I'm not asked to make a finding under the criminal laws. I'm asked to find did we have any type of an assault. And I find there's at least a simple that occurred today.

The judge was mistaken in stating that he was "not asked to make a finding under the criminal laws." In fact, that is the very finding that the Family Part must make, albeit by a civil preponderance standard. Cesare v. Cesare, 302 N.J. Super. 57, 66-67 (App. Div. 1997), rev'd on other grounds, 154 N.J. 394, 400-01 (1998). Thus, in this case the judge had to determine if an assault, as defined in the Penal Code, had been committed by defendant. Since the judge concluded, justifiably, that the evidence did not support an aggravated assault, it was necessary to find a simple assault. That offense, as defined in N.J.S.A. 2C:12-1a(1), would require that defendant attempted to cause or purposely, knowingly, or recklessly caused bodily injury to plaintiff. In so doing, the judge focused on recklessly. Up to that point, the judge's analysis was sound. However, in deciding whether defendant had acted recklessly, the judge sought guidance in the motor vehicle statutes, specifically, reckless driving. N.J.S.A. 39:4-96. That statute penalizes one who drives a vehicle, "heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person. . . ." Ibid. However, that is not the correct source for a definition of recklessly under the Penal Code. The applicable definition is found in N.J.S.A. 2C:2-2b(3). We have no way of knowing whether the judge would have found that defendant committed a simple assault if he had applied the correct mental state. Accordingly, the matter must be remanded. On remand, we see no reason why any additional testimony must be taken. As noted, we have accepted the judge's fact findings, as we must. Cesare, supra, 154 N.J. at 411-13. It is only the legal conclusion flowing from those facts that must be reconsidered. The judge may, if he deems appropriate, permit oral argument on the issue we have identified.

Reversed and remanded. We do not retain jurisdiction.

 

The judge did not consider, and we do not address, whether N.J.S.A. 2C:12-1a(2) was applicable in this circumstance.

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A-6567-03T2

RECORD IMPOUNDED

October 12, 2005