C.D v. K.D

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0735-10T2

C.D.,

Plaintiff-Respondent,

v.

K.D.,

Defendant-Appellant.

Argued June 6, 2011 Decided July 13, 2011

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-0366-11.

Pierce L. Butler argued the cause for appellant.

Stephen C. Leonard argued the cause for respondent (Leonard and Leonard, attorneys; Mr. Leonard, on the brief).

PER CURIAM

Defendant K.D. appeals from a final restraining order (FRO) issued against him at the request of his wife, plaintiff C.D., arising from a July 18, 2010 confrontation. For the reasons that follow, we affirm.

The parties have been married nineteen years and have three teenage children. On the morning of the incident, plaintiff and defendant argued about his whereabouts earlier in the day. Defendant was standing in the laundry room, plaintiff at the top of the four steps which lead from the laundry room to the kitchen. Plaintiff testified that defendant put his face so close to hers they were practically nose-to-nose; defendant said he leaned in towards her as if to kiss her. Plaintiff testified that she pushed his face away in response, while defendant said she grabbed his face, pulling down one of his eyelids. Both agree he then squeezed her wrist and pushed her hand away. Plaintiff said defendant, in a very angry voice, told her never to touch his face again, while defendant testified he told her to get out of his face or he would call the police.

In fact, plaintiff called the police, who arrived but did not issue a temporary restraining order (TRO). Three days later, when plaintiff met with a domestic violence counselor she had been seeing for several months, she revealed the bruise that had developed on her wrist where defendant had grabbed her. At the counselor's urging, she photographed the bruise and obtained a TRO.

In granting an FRO, the trial court found defendant had committed an assault, a predicate act to the issuance of such an order. See N.J.S.A. 2C:25-19(a). In her findings, the judge reiterated that the burden was by a mere preponderance of the evidence and that, from plaintiff's perspective, given her testimony regarding the history of threatening conduct over the years of the marriage, defendant's act of putting his face in front of her own was a threat. See N.J.S.A. 2C:25-29(a). The court specifically said it found "credible [] plaintiff's representation that she fears the defendant" in the absence of a restraining order.

Defendant appeals on the basis that the trial court erred in determining that his "conduct constituted an assault within the meaning of the Domestic Violence Act," and that the judge "erred as a matter of law on ruling on this defendant/appellant's motion to dismiss at the conclusion of all testimony."

Our review of Family Part fact-finding is quite limited. Those findings, so long as "supported by adequate, substantial, [and] credible evidence, will be affirmed." Cesare v. Cesare, 154 N.J. 394, 412 (1998). This deference is accorded in part due to "the family courts' special jurisdiction and expertise in family matters." Id. at 413. Moreover, the trial court "has the opportunity to make first-hand credibility judgments" and possesses a "'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Rulings on legal questions, however, are not entitled to any particular deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Obviously, the trial court had the option of concluding that defendant's conduct was justified as self-defense. N.J.S.A. 2C:3-4(a). The judge chose not to do so, characterizing defendant's act of putting his face next to his wife's, while continuing the argument, to be threatening. Essentially, the judge perceived that defendant was the aggressor by virtue of his physical proximity while the couple was arguing. If anything, the court's view was that plaintiff's act of pushing defendant's face away from her own was itself an act of legally justified self-defense, and that defendant's response of grabbing her arm was simply a continuation of his aggression. Accordingly, although she did not explicitly reject his defense, she clearly did not consider defendant's conduct to have been self-defense.

In a non-domestic violence situation, it is not so clear that defendant pushing away plaintiff's wrist would not fall within the self-defense rubric. But here, plaintiff testified that defendant for years was both verbally and physically abusive, and the judge was therefore obligated to consider the parties' history, including non-adjudicated instances of abuse or harassment, in reaching a disposition. N.J.S.A. 2C:25-29; see also Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992) (observing the act "does not limit the judge to prior adjudications of domestic violence alone").

Defendant contends that when a motion for judgment is made at the close of all the evidence, a plaintiff is no longer entitled to the benefit of all favorable inferences. Although the judge mistakenly cited Rule 4:37-2(b) in her ruling, which is applicable to motions for judgment at the close of plaintiff's case, the standards of that rule are equally applicable to motions at the close of all evidence pursuant to Rule 4:40-1. See Dolson v. Anastasia, 55 N.J. 2, 5 (1969).