L.H v. P.H

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3651-08T33651-08T3

L.H.,

Plaintiff-Respondent,

v.

P.H.,

Defendant-Appellant.

__________________________________

 

Submitted January 4, 2010 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-2185-09.

David M. Lipshutz, attorney for appellant.

Rutgers School of Law - Camden, Domestic Violence Clinic, attorneys for respondent (Victoria Chase and Anne Mallgrave, on the brief).

PER CURIAM

Defendant P.H. appeals from the February 19, 2009 final restraining order (FRO) issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. The court entered the order after finding that defendant's act of slashing plaintiff's dress with a steak knife was egregious enough to qualify as the predicate crime of criminal mischief, N.J.S.A. 2C:17-3 and N.J.S.A. 2C:25-19(a), and warranted the issuance of the FRO to prevent further abuse. See N.J.S.A. 2C:25-29(b). We affirm.

The evidence presented at the FRO hearing disclosed that plaintiff and defendant have been married since 2003 and have one son born in 2006. Plaintiff testified that in October 2008, she and defendant began discussing a separation and agreed to seek an uncontested divorce. On January 27, 2009, defendant asked plaintiff if they could reconcile. When plaintiff refused, defendant became angry and accused her of cheating on him. Defendant then went into plaintiff's bedroom, took out a dress belonging to her, went to the kitchen to grab a four-inch steak knife, returned to the living room where plaintiff was standing with their young son and repeatedly slashed the dress with a knife, stating "this is what happens when you disrespect me." Plaintiff, who was standing at arm's length from defendant, picked up their son to get him away from defendant, moved to the other end of the room and begged defendant to stop. Defendant ignored her pleas and continued to slash the dress. Plaintiff called a neighbor to come over and then went upstairs when the neighbor arrived. Plaintiff explained that she did not call the police that night because she still hoped that things would cool off and the situation could be resolved peacefully. The parties continued to reside in the home together for the next few days, although plaintiff indicated that she barricaded herself in her bedroom each night out of fear. However, as the week progressed, defendant "got worse" and "nastier."

On January 31, plaintiff asked defendant to sign divorce papers. Defendant became enraged, kept hitting himself and asked plaintiff if she wanted him to return to his "old ways," which plaintiff believed, based upon what defendant had told her about his past, was his history of physical violence toward his former girlfriends. The next morning, plaintiff went to the police station to file a criminal complaint and seek a temporary restraining order (TRO), which the court issued.

In his testimony, defendant admitted to slashing plaintiff's dress. He explained that the dress had been given to plaintiff by another man and that she placed the dress in a drawer they shared, which he viewed as an act of disrespect. He also admitted that plaintiff was about five feet away when he started slashing the dress. He denied, however, telling plaintiff "this is what happens when you disrespect me." He also denied threatening plaintiff and simultaneously pounding his chest when speaking to plaintiff several days later after she asked him about signing divorce papers.

After considering the evidence, the trial judge determined defendant's behavior was "sufficiently egregious" to constitute domestic violence even without a prior history of abuse. The trial court found plaintiff's testimony more credible than defendant's, citing, in particular, her demeanor as a witness under both direct and cross-examination, noting her "excellent eye contact," her candor in stating when she could not remember certain facts, and her relaxed body language. The court contrasted her demeanor with defendant's stoic demeanor, initial lack of eye contact with the court, the fact that he never looked at his attorney, and found, from his testimony, that defendant was "very angry about the allegations that his wife was cheating[.]" The court concluded that plaintiff's testimony was more credible than defendant's. The court further concluded that defendant's cutting of the dress was intentional and constituted the predicate act of criminal mischief. The court was also satisfied that plaintiff's failure to immediately seek a restraining order did not vitiate the need for the issuance of the FRO:

So while this incident occurred on [January 27] . . . and it wasn't reported until the [February 1], the [c]ourt finds that it was reasonable for the plaintiff, pursuant to a domestic violence victim, to sit there and hope that things would get better, and it was only until she couldn't take it anymore that she'd go in and decide that she needed to have the protection of the courts and the police.

The present appeal followed.

Defendant raises the following points for our consideration on appeal.

POINT I

A FOURTEEN[-]YEAR LINE OF CASES SHOWS THAT A DEFENDANT'S CUTTING OF ONE ITEM OF A PLA[I]NTIFF'S CLOTHING (THAT SHE IS NOT WEARING AT THE TIME) IS NOT THE "EGREGIOUS" TYPE OF ACT THAT BY ITSELF JUSTIFIES A FINAL DOMESTIC VIOLENCE RESTRAINING ORDER. IT IS EVEN CLEARER WHEN THE PLAINTIFF CONTINUES TO LIVE WITH THE DEFENDANT FOR FIVE MORE DAYS BEFORE SHE GOES TO THE POLICE AND TESTIFIES THAT SHE DID NOT GO TO THE POLICE BECAUSE OF THE DRESS[-]CUTTING INCIDENT.

POINT II

THE TRIAL COURT ERRED BY NOT CONSIDERING THE COMPLETE LACK OF ABUSE, VIOLENCE AND FEAR IN THE FIVE[-]AND[-]ONE-HALF YEARS THE PARTIES LIVED TOGETHER PRIOR TO THE DRESS-CUTTING INCIDENT, THE FIVE DAYS BETWEEN THAT INCIDENT AND THE FILING OF PLAINTIFF'S DOMESTIC VIOLENCE COMPLAINT, THE COMPLAINT FOR DIVORCE PLAINTIFF HAD JUST FILED AND DEFENDANT'S FINANCIAL CIRCUMSTANCES.

POINT III

THE TRIAL COURT'S OPINIONS AS TO CREDIBILITY OF THE PARTIES, WHILE ENTITLED TO DEFERENCE, WERE NOT LOGICAL OR REASONABLE, AND IT IS UNFAIR TO EQUATE ANGER OR A PERSONALITY CHARACTERISTIC WITH LYING.

We have considered each of these points in light of the record, the applicable law and arguments advanced, and we are satisfied that they are without sufficient merit to warrant discussion in a written opinion beyond our brief comments. R. 2:11-3(e)(2).

With the enactment of the Act, the Legislature intended "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Under the Act, the 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. N.J.S.A. 2C:25-19(a); Cesare v. Cesare, 154 N.J. 394, 400. 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 (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 inspecting the slashed dress, held that defendant's conduct was deliberate and "that, in and of itself, constitutes a predicate act of domestic violence." The trial judge also ruled that establishing a past history of abuse in this case was unnecessary given the egregiousness of this single act and plaintiff's fear of future abuse.

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., 65 N.J. 474, 484 (1974). We will not disturb these findings on appeal unless the trial judge's findings are "'so wholly insupportable as to result in a denial of justice.'" Id. (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div. 1960). This is especially true in family courts, which have "special jurisdiction and expertise in family matters[.]" Cesare, supra, 154 N.J. at 413.

We find no such evidence of a denial of justice here. As the court observed, the single act of violently destroying plaintiff's dress with threats of similar future behavior for any act by plaintiff that defendant perceived as an act of "disrespect" constituted criminal mischief that was sufficiently egregious to justify the issuance of an FRO to protect plaintiff against any further abuse.

Nor do we find that the trial court erred in discounting defendant's argument that the five-day delay in seeking the TRO and plaintiff's continued presence in the marital home militated against the court's finding of domestic violence and the issuance of the FRO. The trial court reasoned that it was not unreasonable for plaintiff to hope that the situation would improve and, when it did not, to then seek the TRO. Roe v. Roe, 253 N.J. Super. 418, 429 (App. Div. 1992). Here, plaintiff waited five days and, unlike the plaintiff in Roe, slept in a separate bedroom. Id. at 424. Finally, the factors the court considered in assessing credibility were reasonable and entitled to our deference as they reflect the trial judge's "'opportunity to hear and see the witnesses and to have the "feel" of the case'[.]" State v Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

In short, we find no reason to disturb the factual findings reached by the trial court. Those findings were reached based upon "'sufficient credible evidence present in the record.'" Close v. Kordulak Bros., 44 N.J. 589, 599 (quoting State v. Johnson, supra, 42 N.J. at 162).

 
Affirmed.

(continued)

(continued)

9

A-3651-08T3

RECORD IMPOUNDED

March 12, 2010