M.C v. J.J.C., JR

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1759-09T3

M.C.,

Plaintiff-Respondent,

v.

J.J.C., JR.,

Defendant-Appellant.

___________________________________

December 16, 2010

Submitted November 9, 2010 - Decided

Before Judges Parrillo, Yannotti and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-0623-10.

Janet L. Porro, attorney for appellant.

Joshua G. Curtis, attorney for respondent.

PER CURIAM

Defendant, J.J.C., Jr., appeals from the Family Part's November 17, 2009 final restraining order (FRO) in favor of plaintiff, M.C., issued under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. We affirm.

Plaintiff is the eighty-eight year old mother of defendant, who is fifty-two years old. Prior to the FRO, they resided in the same family home in Lodi, where defendant's sister, L.C., also lived until August 13, 2009 when defendant obtained an FRO against her. In December 2008, defendant's fiancé, Y.L., moved into the residence and together with defendant occupied an upstairs apartment in the home. Plaintiff continues to reside in the downstairs basement apartment, equipped with a kitchen, living and sleeping areas.

Plaintiff suffers from osteoporosis, arthritis and other medical conditions. After her husband's death, defendant became plaintiff's primary caretaker and exercised her power of attorney. Defendant maintains that he has paid all of the household bills, including real estate taxes, insurance and utilities, along with plaintiff's unreimbursed medical expenses. He claims to be the joint owner with plaintiff of a certificate of deposit (CD) account.

The events that precipitated the FRO occurred around 2:00 p.m. on August 31, 2009. Both plaintiff and defendant agree they had a verbal argument over plaintiff's finances and a plumbing bill due for repairs at their home. This much is undisputed. What followed thereafter is the subject of vastly conflicting accounts.

According to defendant, because plaintiff did not write checks, he stored about $5,000 in cash in her closet for use in case of emergencies. When he asked for money to pay the plumbing bill, plaintiff refused and also declined to produce the CD bankbook. Plaintiff then became "irate" and "upset" and threw her cane at him. She then began yelling about L.C. being forced out of the home as she started to walk without her cane towards the door leading outside. At that point, her foot got caught in the door and she began to fall backwards. Defendant caught her and sat her on the floor. He then freed plaintiff's leg, picked her up and carried her to her bed.

Plaintiff offered a substantially different account. She claimed that when she refused to produce the cash or CD bankbook, defendant began rummaging through her room, turning over her mattress, smashing her door frame and berating her with abusive names and threats of removal to a nursing home. She became alarmed and headed for the door leading outside her home to call for help. As she was exiting, defendant ran up to her from behind, grabbed her by the waist with one arm, placed his other hand over her mouth and nose to muffle her screams, and forcibly dragged her backwards, away from the door and back into the house where he carried her onto her bed and threw her cane and slippers at her. In the process, defendant scratched plaintiff's nose.

Plaintiff did not call the police because of defendant's threats. However, that evening, plaintiff telephoned her niece D.M., who then informed L.C. of the incident. As a result, the next day, L.C. reported the incident to the Lodi Police. Officer Dominick Miller responded to plaintiff's home, where he witnessed an "obvious" injury to plaintiff's arm and nose. Plaintiff then accompanied Officer Miller to the police station where another officer photographed the bruises on her face and right arm.

Four days later, on September 4, 2009, L.C. and D.M. took plaintiff to her doctor for an examination of her injuries. Following the doctor's visit, the two took additional photographs of plaintiff's injuries, which showed bruising on her left arm that had been largely obscured in the police photos, and her thigh, which supposedly was covered by her dress when the police earlier photographed her. D.M. also recovered part of the broken door's locking mechanism and a wooden shard from the door frame.

Defendant denied plaintiff's account, claiming that the entire incident was an accident and that plaintiff fabricated her version to remove defendant from the family home and enable L.C. to return. Defendant actually suggested that plaintiff's injuries were self-inflicted, with the assistance of L.C. and D.M., at some point after the police photos were taken on September 1, 2009, but before D.M. took the additional photographs on September 4, 2009. In fact, plaintiff's expert, Dr. Arthur Tiger, opined that the bruising depicted in the September 4th photographs appeared to be much greater than in those revealed in the photographs taken on September 1, 2009 and that, as a result, the injuries were probably not caused by the same act.

At the close of evidence, the court rejected defendant's "conspiracy" theory as "preposterous,"1 discredited defendant's account as "suspect,"2 and found both plaintiff and D.M. to be credible witnesses.3 Having determined that the matter "falls squarely on credibility because there is no third party that's witnessed" the incident, the court found that defendant's actions qualified as predicate crimes of simple assault, N.J.S.A. 2C:12-1a, and harassment, N.J.S.A. 2C:33-4b, and were sufficiently egregious to warrant the issuance of an FRO to prevent further abuse under N.J.S.A. 2C:25-29(b).

On appeal, defendant raises the following issues:

I. DUE TO THE COURT'S FAILURE TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER SHOULD BE REVERSED AND REMANDED.

A. THE COURT DID NOT MAKE ANY FINDINGS OF FACT AS TO

WHETHER OR NOT THE DEFENDANT ACTED PURPOSELY, KNOWINGLY OR RECKLESSLY, THUS FAILING TO SATISFY THE REQUISITE ELEMENTS OF SIMPLE ASSAULT.

B. THE COURT FAILED TO MAKE ANY FINDINGS OF FACT AS

TO WHETHER OR NOT THE DEFENDANT'S ALLEGED CONDUCT SATISFIED THE REQUISITE ELEMENTS OF HARASSMENT.

II. THE TRIAL COURT'S FINDING THAT THE DEFENDANT COMMITTED AN ACT OF DOMESTIC VIOLENCE IS UNSUPPORTED BY THE EVIDENCE.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add, however, the following comments.

The Legislature enacted the Act "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Indeed, the Act's primary focus is to provide immediate protection to the victim. Ibid. A plaintiff seeking relief under the Act must first prove that a defendant has committed an act of domestic violence as defined by N.J.S.A. 2C:25-19(a). N.J.S.A. 2C:25-29(a); Cesare v. Cesare, 154 N.J. 394, 400 (1998). Once the plaintiff proves that the defendant committed one of the predicate acts, the court must then determine whether issuance of an FRO is necessary, based upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) to protect the victim from further abuse. Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006). While we have previously noted that a single commission of an enumerated predicate act of domestic violence does not automatically mandate the entry of a restraining order, we have also held that one sufficiently egregious act of domestic violence can indeed warrant the issuance of an FRO regardless of whether there is a history of violence between the parties. McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007) (citing Cesare, supra, 154 N.J. at 401-02).

Here, the trial judge, after carefully assessing the veracity of the conflicting versions proffered and crediting plaintiff's account, determined that defendant committed the predicate acts of assault and harassment upon plaintiff, which were, in themselves, sufficiently egregious to warrant plaintiff's protection from further acts of domestic violence by the issuance of an FRO. Defining assault as an "attempt[] to cause or purposely, knowingly or recklessly cause[] bodily injury to another," N.J.S.A. 2C:12-1a(1), the court concluded that if it "believe[s defendant] inflicted the injuries and the black and blues came from [defendant], then . . . certainly assault is statutorily met." The court also determined that these same acts, committed with a purpose to harass, also satisfied the harassment criteria contained in N.J.S.A. 2C:33-4b.

In a non-jury case, findings of fact by the trial court "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12; Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility[,]'" Cesare, supra, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)), because the trial court "hears the case, sees and observes the witnesses, hears them testify, and has better opportunity to judge their credibility than the reviewing court." Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961). Thus, the trial court maintains "a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988); State v. Locurto, 157 N.J. 463, 471 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). Because credibility is for the factfinder to determine, Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 495 (1956), an appellate court will not disturb fact findings on appeal unless the trial judge's findings are "'so wholly insupportable as to result in a denial of justice.'" Rova Farms Resorts, supra, 65 N.J. at 483-84 (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b. 33 N.J. 78 (1960)). This is especially true in family courts, which have "special jurisdiction and expertise in family matters" that support a family court's ability to "'successfully balance the interests of society in deterring the evils of domestic violence and caring for families.'" Cesare, supra, 154 N.J. at 413 (quoting Brennan v. Orban, 145 N.J. 282, 304-05 (1996)). Moreover, an appellate court may also conclude that the factual basis for a decision is implicit in the trial court's ruling. Locurto, supra, 157 N.J. at 474.

We discern no reason to disturb the factual findings or legal conclusions reached by the trial court. Its factual findings were reached based upon "sufficient credible evidence present in the record," Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting Johnson, supra, 42 N.J. at 162), and its legal conclusions are well supported in law. To sum, plaintiff's account of the August 31, 2009 incident was deemed credible by the trial judge and was also corroborated by the physical evidence. As clearly demonstrated by the latter, plaintiff suffered bodily injury within the meaning of N.J.S.A. 2C:11-1a, knowingly caused by defendant, so as to constitute an assault under N.J.S.A. 2C:12-1a. See N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997). The same evidence also demonstrated that plaintiff was subjected "to striking . . . shoving, or other offensive touching" by defendant within the meaning of the harassment statute. N.J.S.A. 2C:33-4b. Moreover, our review of the record reveals substantial evidence from which to infer from the very nature of the conduct and the accompanying threats of future violence that defendant acted with the requisite purpose to harass his mother. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. McDougald, 120 N.J. 523, 566-57 (1990); State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995); State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478 (1978). And finally, we concur in the trial court's conclusion that the single episode of domestic violence was sufficiently egregious in itself to justify issuance of an FRO to protect plaintiff against any further abuse by defendant.

1 The trial judge said in this regard:

If I were to believe that that black and blue that's in the black and white photos, which is P-1, was inflicted by some other means, that person would have to use an implement with such precision to only cause black and blue and not break the arm of a lady who the defendant admits has osteoporosis, has arthritis, to get that black and blue. Now I don t buy that.

2 Specifically, the court reasoned in part:

[Defendant is] so concerned about his mother - he picks up after her, he knows every medication. She falls backwards and he doesn t even call for an ambulance. He doesn t call for assistance. He admits she's fragile, doesn't want to [hurt] her. She's fallen. But [he] picks her up and puts her in bed, not near the bed, outside he claims, if you believe his testimony. [T]he argument is downstairs and she's outside. And he doesn't even call for help. That's a problem with his credibility. . . .

3 On this score, the court concluded:

[Plaintiff,] I find her to be credible. I know there's some inconsistencies in, in maybe her memory recollection to some degree. But I watched her demeanor. I watched her . . . when she interacted when her attorney asked her questions. I watched her on cross-examination. She pretty much was even throughout the entire testimony that she gave on both sides.

. . . .

[D.M.] was a very credible witness. She has no - I never felt she had another motive. She has no interest in this. She, she maybe makes an error in judgment in not calling the police.