J.P v. C.P

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4595-07T24595-07T2

J.P.,

Plaintiff-Respondent,

v.

C.P.,

Defendant-Appellant.

___________________________________________________________

 

Submitted March 5, 2009 - Decided

Before Judges Carchman and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FV-18-0907-08.

Pomper & Associates, attorneys for appellant (Neal M. Pomper, on the brief).

Welch & DeTommaso, attorneys for respondent (Michael J. DeTommaso, on the brief).

PER CURIAM

Defendant C.P. appeals from a May 16, 2008 final restraining order (FRO) entered against her under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. The protected party under the FRO is defendant's husband of more than sixteen years, plaintiff J.P. At issue was whether the disputed act of domestic violence occurred. After weighing the credibility of the two parties, the Family Part judge found that the domestic violence event alleged by plaintiff occurred as plaintiff said it occurred and that "there is a danger of this kind of thing recurring." Accordingly, the FRO was granted. Deferring to the better perspective of the trial court to evaluate the veracity of the witnesses, we affirm.

This matter arises out of a dispute between the parties on May 4, 2008, regarding the disposition of an economic stimulus check they received or anticipated they would receive from the federal government. Plaintiff testified that defendant told him she had deposited the check into her personal checking account, to which plaintiff objected. Plaintiff insisted that he needed half of the funds to pay their bills. According to plaintiff, defendant became angry and, without provocation, she hit him in the back of his head with a telephone book. Plaintiff testified he was stunned. He experienced a headache and other pains and he ran next door to his parents' house, "afraid for [his] life[,]" and afraid it would happen again.

Plaintiff did not immediately seek a temporary restraining order (TRO). Moreover, his testimony was equivocal or was unclear as to whether he would have sought the order if his attorney had not advised him to do so. In any event, in the interim, on the day before plaintiff sought his TRO, defendant sought her own TRO, but was denied such relief. Defendant alleges plaintiff's delay in filing indicates that the complaint was filed in retaliation for her filing and is a tactical maneuver to gain an advantage in their divorce proceedings, but the trial court did not find that plaintiff acted out of such motivation. Plaintiff testified he did not know of defendant's failed application when he filed his complaint.

Plaintiff's complaint alleges, and he testified at the hearing, that there was one prior incident of domestic violence between the couple, in June 2007. On that occasion, plaintiff alleges that defendant injured him with a pair of scissors. The couple was in their home at that time, and they were arguing over money. Defendant testified he started to leave and was proceeding downstairs to work, when something hit him in the back of the neck. He subsequently determined he had been impaled by scissors thrown by his wife. The scissors drew blood, but plaintiff did not seek medical attention. He went to his parents' home, and they put a band aid on the wound. He did not call the police because he said he was "afraid for [his] kids and [he] was trying to make this marriage work."

In her testimony, defendant acknowledged that she and plaintiff had heated marital arguments caused by their financial stresses, but she denied that she hit plaintiff in the back of the head with a telephone book or with anything else. She also denied that the economic stimulus check had been received as of Sunday, May 4, 2008. Instead, she testified that she and plaintiff were discussing the money, and she was pleading with him to use the check, when it was received, to pay off their household bills. According to her, plaintiff wanted one half of the funds to pay "his" bills, without regard to the amount needed to eliminate their household debts. Defendant further testified that it was plaintiff who got mad and told her "I'll make you pay. And that's all I kept hearing for weeks."

On Wednesday, May 7, 2008, defendant sought unsuccessfully to restrain plaintiff from harassing her over the stimulus check. The next day, plaintiff's domestic violence complaint and the TRO were filed and served on defendant. Although the complaint alleges defendant had earlier stabbed plaintiff with scissors, defendant denies ever having thrown scissors or stabbed plaintiff with anything. She testified she had no knowledge of any incident like that. Overall, defendant maintains that plaintiff failed to meet his burden of showing a purposeful touching with the intent to harm.

The trial judge found plaintiff's testimony more credible as to the occurrence of the predicate act and further found after considering the parties' relationship that defendant's impatience with plaintiff posed a risk of future danger. The judge noted that plaintiff's hesitation in filing his complaint was not a determinative fact, accepting that plaintiff merely "wanted to talk to a trusted family adviser before going forward." Ultimately, the court found, by a preponderance of the evidence, that "the event occurred as the plaintiff said it occurred." The court also concluded that a restraining order was necessary to prevent further acts of domestic violence.

The scope of our review is limited. In Cesare v. Cesare, the Supreme Court summarized the applicable scope of appellate review in circumstances such as this as follows:

The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility. 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. Therefore, an appellate court should not disturb the factual findings and legal conclusions of the trial judge unless [it is] 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.

[ 154 N.J. 394, 411-12 (1998) (internal quotations and citations omitted).]

Mindful of that limited scope of review and the deference to be accorded a trial court's credibility assessments and findings of fact, we are satisfied that there was sufficient, credible evidence for the trial court to have found that a predicate act of domestic violence, an assault, was established by a preponderance of the evidence. The court further determined that a restraining order was necessary to prevent further acts of domestic violence. See Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006) (explaining that the trial judge must determine (1) whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred and (2) whether the court should enter a restraining order to provide protection for the victim). Based upon our review of the record, we perceive no reason to disturb the findings and conclusions made by the judge in this case.

 
Affirmed.

That denial is not a subject of this appeal.

N.J.S.A. 2C:12-1a(1) provides that "[a] person is guilty of assault if he[] [a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]" Bodily injury, as defined in N.J.S.A. 2C:11-1a, "means physical pain, illness or any impairment of physical condition."

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6

A-4595-07T2

RECORD IMPOUNDED

September 25, 2009