MARTA IELLIMO v. NICHOLAS IELLIMO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1138-07T31138-07T3

MARTA IELLIMO,

Plaintiff-Respondent,

v.

NICHOLAS IELLIMO,

Defendant-Appellant.

__________________________

 

Argued November 18, 2008 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-304-08.

Salvatore A. Simeone argued the cause for appellant (Cutler, Simeone, Townsend, Tomaio & Newmark, L.L.C. attorneys; Laura A. Steinberg, on the brief).

Michael David Lichtenstein argued the cause for respondent (Lowenstein Sandler, P.C., attorneys; Mr. Lichtenstein and Priya R. Masilamani, of counsel and on the brief).

PER CURIAM

Defendant, Nicholas Iellimo, appeals from the final restraining order (FRO) entered against him on September 24, 2007, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm.

The parties were married in 2001 and have one daughter who was born on October 4, 2002. On July 19, 2007, plaintiff, Marta Iellimo, obtained a domestic violence temporary restraining order (TRO) against defendant claiming that,

in the past several months, [defendant] has assaulted her several times by elbowing her in the eye, attempting to push her down stairs and pushed her against a wall. Plaintiff stated that defendant forced her to have sex, threatening that he was going to get her pregnant. Plaintiff stated that defendant tapes her telephone calls and restrains her in their house by hiding the keys to the house. Plaintiff stated that defendant feels that she may be close to reporting incidents to police or leaving him, so [he] threatens that he will keep the child.

Judge Thomas R. Vena conducted a five-day hearing between September 5 and September 24, 2007. The judge heard extensive testimony from both parties, as well as two police officers and two other witnesses.

Plaintiff testified to a series of marital problems commencing in January 2007. For example, plaintiff testified that in late January 2007, defendant elbowed her in the eye. Plaintiff's sister, Magdalena Castro, testified that she observed a "greyish-blue mark" and redness around plaintiff's eye at that time. Plaintiff further testified that in late February or early March, she got into a dispute with defendant during which he attempted to throw a computer at her; the computer ended up hitting her feet. Plaintiff fled but defendant followed her, grabbed her arms and twice attempted to push her down the stairs. When she tried to call the police, defendant disconnected the phone.

On July 10, 2007, following defendant's return from a business trip, plaintiff and defendant had an argument over use of the phone. In response, defendant threw his suitcase on the ground and began kicking and hitting the walls. When plaintiff attempted to call the police, defendant grabbed the phone from her, spit on her and pushed her up against the wall. Plaintiff testified that defendant told her if she left the house she "would never see the child again," and that he would "kick [her] out as a bitch to the streets."

On or about July 11, 2007, defendant called the Division of Youth and Family Services (DYFS) and two caseworkers came to the parties' residence. Defendant had told the caseworkers that he thought that plaintiff was "brainwash[ing]" their daughter. Because plaintiff could not understand the caseworkers, she called the police and asked for an interpreter. Officer Julio Lopez responded; he testified that plaintiff informed the DYFS caseworkers that she did not want to cooperate. Officer Lopez was present during plaintiff's entire conversation with the DYFS caseworkers on this occasion.

The DYFS caseworkers returned the following day with a Spanish interpreter. Plaintiff's sister, Castro, was present during this visit. Castro testified that defendant became upset during the visit and one of the caseworkers had to tell him to "calm down."

Plaintiff testified that between July 11 and July 16, 2007, defendant would not permit her to leave the house and even accompanied her to the bathroom. On July 16, 2007, after both parties visited the DYFS office, defendant became upset at plaintiff, removed her shorts and forcibly had sexual intercourse with her. When plaintiff attempted to push defendant off and told him that he was hurting her, defendant covered her mouth with his hand and told her that she was going to become pregnant that night. Defendant told plaintiff that, if she called the police, she would not be permitted to see their child again. Plaintiff testified that her body physically ached and that she had bruises on her legs.

On the following day, both parties visited plaintiff's sister, who stated that defendant "was constantly holding [plaintiff] by the hand" and following her around, and that plaintiff appeared "frightened and nervous." At one point, the two women went to the bathroom and Castro observed that plaintiff was "shaking and her eyes were filled with tears." Plaintiff told her sister that defendant had "forced [her] to have sex."

Plaintiff reported the July 16 incident to Police Officer Edward Clark on July 19, 2007. She also obtained her TRO on that date.

Defendant adamantly denied all of plaintiff's allegations. He testified that he believed plaintiff was attempting to alienate his daughter's affection for him, and that plaintiff was withdrawing from the marital relationship.

Defendant spoke to plaintiff by telephone on August 9, 2007, and had a friend, Enrico Paolucci, listen to the conversation. Paolucci testified that he first heard defendant have a "sweet" conversation with his daughter, but then the conversation changed when the child asked defendant why he would not give money to her mother. Plaintiff then took the phone and spoke in a "superior" and "arrogant" tone, asking defendant for money, according to Paolucci. Defendant responded, "let me see what I can do." Paolucci testified that plaintiff told defendant that if he did not give her money, she would not permit him to see his daughter. She then accused defendant of seeing another woman. Plaintiff acknowledged that this telephone conversation occurred, but denied asking defendant for money or threatening to keep him from his daughter.

During the trial, defendant sought a court order to compel the DYFS caseworker to testify about her conversations with plaintiff in July 2007. Judge Vena denied that application.

In his decision, Judge Vena stated initially that credibility was the critical factor in weighing the evidence. The judge stated:

My observation[] with regard to credibility, then, is that I found that the witnesses that were presented to support Mr. Iellimo's, the defendant's version of the events, did not contribute that much in terms of the Court's ability to reach a conclusion as to what occurred with regard to the relationship between these two parties.

I found that they were all . . . honest and truthful and attempted . . . , as to the best of their ability, to advise the Court, assist the Court in reaching its conclusions.

I found the plaintiff, Ms. Iellimo, to be distracted, confused, inconsistent, all of the things that they teach us to look out for when reaching credibility determinations, and I found that the defendant, Mr. Iellimo, was . . . certain with regard to his perspective as to the events in question.

I have to reach a conclusion with regard to those credibility determinations. I think it's possible in this case to reach a conclusion that does not depend solely on a he said/she [said] determination. . . . I can reach a conclusion in this case without finding that anyone got on the witness stand and perjured themselves. And the reason I can say that is that I believe, and while by no means am I a psychologist or a psychiatrist, but I do believe that the defendant, Mr. Iellimo, may very well have deluded himself into believing that his behavior either didn't occur, or it occurred out of a sense of right, and that the things that occurred between these two parties may have occurred, in his view, because that is what he is entitled to do because of his marriage to the plaintiff.

I find that, therefore, his blatant denials with regard to obvious facts, such as his denial that the plaintiff was unhappy, I find not credible and not worthy of resulting in credibility to others. Mr. Iellimo, on cross-examination, testified that his family was and is a happy family, even up until today. I don't think anybody else in the room -- he may have believed that. I doubt it, but he may have believed that, but no one else in the room did.

I find that . . . his conduct was objectionable and violates the provisions of the Domestic Violence Act. I find that Mr. Iellimo did, in fact, on July the 10th, assault the plaintiff by causing her to have contact with the wall, that, in fact, it was for the purpose of intimidating, controlling and/or injuring the plaintiff.

I find that the defendant, . . . on the other days, both subsequent and prior to that date, acted in such a way so as to manifest his control over the plaintiff. I think up until the time of the filing of the preliminary interim restraining order, that the plaintiff was falling into that cycle that the defendant was promoting. I think that the plaintiff was working under the delusion, as well, that perhaps she was behaving in some kind of way . . . which entitled defendant to behave the way in which he had behaved.

I think it very well may be, and I don't have to reach this conclusion, beyond a reasonable doubt, I think it . . . very well may be that Mr. Iellimo was under the delusion that he had sexual relations with -- although he denied having sexual relations at all, but that he had sexual relations with the plaintiff on July 16th, 2007, and that that was somehow his privilege and her protestations to the contrary were not protestations that were reasonable or rational and it was, therefore, his right, I believe, that he, nevertheless, had sexual relations with the plaintiff without her consent on July the 16th, and I find that that constitutes sexual assault.

I find that the previous acts, including the events that occurred in January of 2007, did, in fact, occur. I find [defendant's] protestations to the contrary to be without credibility, and I believe, therefore, there w[ere] not only previous acts of domestic violence, but that there was domestic violence in the past that, in and of itself, might not have been a specific violation of a criminal statute or one of the elements set forth, but it's enough of a pattern that throughout the latest part of the relationship between the parties, that it entitles the plaintiff to believe that she was in a dangerous position and finally reached a point where she decided to take specific steps, steps that included seeking and securing a temporary restraining order and filing a domestic violence complaint.

I therefore find, under those circumstances, that the plaintiff honestly and legitimately believes that she is in danger and that she has the right to fear the defendant. I, therefore, find a final restraining order is necessary to protect the plaintiff from immediate danger o[f] further acts of domestic violence.

On appeal, defendant argues that the trial judge erred in: (1) curtailing his cross-examination of plaintiff; (2) failing to order the DYFS caseworker to testify; (3) finding that defendant committed the act of sexual assault where the complaint alleged only assault; (4) permitting plaintiff to "go beyond the four corners of her complaint"; (5) making findings of fact contrary to the weight of the evidence; (6) "ruling in favor of . . . plaintiff after determining her testimony was not credibile"; (7) "ruling in favor of . . . plaintiff where it found the defendant's testimony . . . credible"; and (8) "making a determination that . . . defendant suffered from a pathology with no expert testimony presented[.]" We conclude that defendant has substantially mischaracterized the trial proceedings and the judge's rulings. Therefore, we consider his arguments to be "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E). We add only the following comments.

"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). We regard "findings by the trial courts . . . binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where, as here, "'the evidence is largely testimonial and involves questions of credibility[,]'" deference to the trial court is "especially appropriate[.]" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).

Regarding defendant's first contention that he was hampered in his ability to cross-examine plaintiff, the record reveals that his counsel was permitted to and did engage in extensive cross-examination and re-cross-examination of plaintiff over the course of several days of trial. The judge made no effort to limit defense counsel's cross-examination until counsel engaged in what the court considered to be repetitive questions. "The scope of cross-examination . . . rests within the sound discretion of the trial court." State v. Harvey, 151 N.J. 117, 188 (1997). We will not intervene in the exercise of that discretion "'unless clear error and prejudice are shown.'" State v. Gaikwad, 349 N.J. Super. 62, 86-87 (App. Div. 2002) (quoting State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990)). No such showing has been made here.

Regarding production of the DYFS caseworker, while plaintiff testified that she had told a DYFS caseworker that defendant had abused her, three individuals who were present during some or all of plaintiff's meetings with the DYFS caseworkers testified that they never heard plaintiff make any such statement either to the DYFS workers or to the police. Those witnesses included defendant himself, Officer Julio Lopez (defendant's witness) and plaintiff's sister Magdalena Castro. Moreover, the DYFS caseworker's July 12, 2007 report was introduced into evidence at trial; that report contained no allegation by plaintiff that defendant had abused her.

Under these circumstances, we reject defendant's argument that the trial judge's refusal to compel the DYFS caseworker's testimony constituted a denial of his due process rights. The trial in this matter is distinguishable from that in Peterson v. Peterson, 374 N.J. Super. 116 (App. Div. 2005), upon which defendant relies. In Peterson, we vacated an FRO entered after a hearing which was "conducted informally with the trial court asking the questions. Neither party was afforded an opportunity to conduct cross-examination, and [defendant's] witnesses did not testify." Id. at 118. By contrast here, the judge heard the testimony of three individuals, including defendant, directly contradicting plaintiff's testimony that she told a DYFS caseworker that the defendant had abused her. The absence of the caseworker, whose report contained no such corroborating statements, resulted in no prejudice to defendant.

Defendant next argues that plaintiff was wrongfully permitted to testify "beyond the four corners of the complaint." In her TRO, the box for "assault" is the only one checked as a predicate offense. However, in the narrative describing the alleged acts of domestic violence on the TRO, plaintiff stated that defendant forced her to have sex, "threatening that he was going to get her pregnant."

We conclude that defendant had adequate and fair notice of the allegations against him. "Due process requires that a finding of domestic violence be based upon the act or acts of domestic violence alleged in the complaint." Pazienza v. Camarata, 381 N.J. Super. 173, 184 (App. Div. 2005). Clearly the "act" of sexual assault was "alleged" in the plaintiff's complaint.

In this regard, defendant's reliance upon J.F. v. B.K., 308 N.J. Super. 387 (App. Div. 1998), is misplaced. There, we reversed an FRO because the "trial court found that [the] defendant had committed domestic violence based not on the act of domestic violence alleged in plaintiff's complaint but rather on a course of prior conduct which, with the exception of one incident . . . was not even mentioned in the complaint." Id. at 391. On that record, we held that "[i]t 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.

Plaintiff's testimony as to the events of July 16, 2007, was consistent with the allegations on the face of her complaint. Therefore, defendant had sufficient notice and an opportunity to prepare his defense.

Defendant's next three arguments are addressed to the judge's assessment of credibility and weighing of the evidence. As noted, we accord substantial deference to a trial judge's credibility evaluations and factfindings. Cesare, supra, 154 N.J. at 412. Measured against that deferential standard, defendant's arguments are without merit. R. 2:11-3(e)(1)(E). Despite describing plaintiff as "distracted, confused, [and] inconsistent," the trial judge nonetheless concluded that she "honestly and legitimately believes that she is in danger[,] and . . . a final restraining order is necessary to protect [her] from immediate danger o[f] further acts of domestic violence." Moreover, the judge did not attribute plaintiff's "distracted, confused [and] inconsistent" demeanor to a lack of credibility or dishonesty. We note that such behavior may well be consistent with a witness who is nervous about testifying in front of her abuser. Defendant is simply in error when he argues that the trial judge found plaintiff's testimony to be "not credible[.]"

Nor did the judge find defendant's testimony "credible." Rather, after describing defendant as "certain with regard to his perspective as to the events in question[,]" the trial judge stated his conclusion that defendant "may very well have deluded himself into believing that his behavior either didn't occur, or that it occurred out of a sense of right, . . . because that it is what he is entitled to do because of his marriage to the plaintiff." This assessment is a far cry from finding defendant "credible."

Finally, defendant's argument that the trial court determined that he "suffered from a pathology with no expert testimony" to support that conclusion is without merit. The judge stated that he could reach a decision "without finding that anyone got on the witness stand and perjured themselves." His basis for giving the defendant the benefit of that doubt was the judge's assessment that the defendant "deluded" himself into believing that his behavior either did not occur or was justified by his marriage to plaintiff.

Affirmed.

 

Spanish is the primary language of both parties.

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A-1138-07T3

RECORD IMPOUNDED

February 18, 2009