R.R.R v. R.V.R

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3153-10T3

R.R.R.,

Plaintiff-Respondent,

v.

R.V.R.,

Defendant-Appellant.

__________________________

December 15, 2011

Submitted November 29, 2011 - Decided

Before Judges Payne and Simonelli.

On Appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-1306-10.

Shamy, Shipers & Lonski, P.C., attorneys for appellant (Robert J. MacNiven, on the brief).

Legal Services of New Jersey, attorneys for respondent (Monica C. Gural, of counsel and on the brief).

PER CURIAM

Defendant R.V.R. appeals from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.

We derive the following facts from plaintiff's and defendant's trial testimony. Plaintiff and defendant were married in 2001. They have no children together, but plaintiff has a son from a prior marriage.

Plaintiff testified extensively about the history of defendant's verbal and mental abuse, and physical and sexual assaults, which began in 2002 or 2003. Defendant did not rebut the majority of this testimony, and only focused on an incident that occurred in November 2008 at the parties' home, an incident that occurred in 2009 at the MGM Casino in Connecticut, and an incident that occurred in April 2010 at the Miami airport.

During the November 2008 incident, defendant threw a television remote control device at plaintiff, causing a right eye injury that required surgery and eventually resulted in a loss of vision. Because she feared defendant, plaintiff did not seek a restraining order at that time. She also did not assist the prosecutor in a criminal complaint that the police had filed against defendant, because he threatened to kill her and her family. At trial, plaintiff submitted her medical records and photographs the police had taken of her eye injury.

During the 2009 incident at the MGM Casino, defendant hit plaintiff in the eye and pushed her. Before security arrived, defendant threatened plaintiff to be careful about what she said so as to protect her family.

The incidents that led plaintiff to seek a restraining order occurred in April 2010. The parties flew to Miami for follow-up treatment for plaintiff's eye. During the trip to the airport, defendant verbally abused plaintiff. During the flight, defendant threatened to kill plaintiff and her family if she mentioned that he had caused her eye injury. He later slapped and punched plaintiff at the hotel, causing her severe pain. The next morning, defendant stepped hard on plaintiff's foot to warn her not to disclose the assault, causing her additional severe pain.

Prior to boarding the plane for their flight to New Jersey, defendant prevented plaintiff from using eye drops and drinking water. He also threatened to pour acid in her face and said that she would have to commit suicide as a result. Plaintiff was scared by what defendant had said and called 9-1-1. The police assisted plaintiff in arranging a separate flight to New Jersey. As soon as plaintiff arrived in New Jersey, she went to the police station, and stayed in a hotel for two days because she was scared of defendant.

In a detailed oral opinion, Judge DeBello found that plaintiff's testimony was credible and defendant's testimony was not credible; defendant engaged in a pattern of abusive and controlling behavior consistent with the cycle of domestic violence; there was an extensive and "horrific" history of domestic violence by defendant; defendant committed simple assault in Miami when he punched and slapped plaintiff causing her pain; defendant committed harassment in Miami because he made statements to plaintiff with a purpose to alarm, seriously annoy or intimidate her; plaintiff feared defendant; and an FRO was necessary for her protection. This appeal followed. On appeal, defendant challenges the judge's credibility determination, and argues that the record lacks substantial credible evidence to support the judge's findings.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). The question is not whether this court would come to a different conclusion were it the trial tribunal. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). We intervene only when convinced that the trial judge's factual findings and legal conclusions "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, "the trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)). Applying these standards, we discern no reason to disturb Judge DeBello's decision.

A plaintiff seeking an FRO under the PDVA must establish by a preponderance of the evidence that the defendant committed an act of domestic violence. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006); Franklin v. Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006). The PDVA defines domestic violence as the commission of any one or more of the fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19a. Among the fourteen predicate offenses are assault under N.J.S.A. 2C:12-1, and harassment under N.J.S.A. 2C:33-4 that, if proven, may entitle a plaintiff to the entry of an FRO. N.J.S.A. 2C:25-19a(2), (13); N.J.S.A. 2C:25-29b. The court must then find that an FRO is needed for the plaintiff's protection. Silver, supra, 387 N.J. Super. at 127.

A person is guilty of simple assault if he or she "(1) [a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (2) [n]egligently causes bodily injury to another with a deadly weapon; or (3) [a]ttempts by physical menace to put another in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1a. A person is guilty of harassment when "with purpose to harass another," he or she

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4a.]

We are satisfied that the record amply supports Judge DeBello's credibility determinations, and factual findings and legal conclusions that defendant committed acts of domestic violence, requiring an FRO for plaintiff's protection. We affirm substantially for the reasons expressed by the judge in his detailed and well-reasoned oral opinion rendered on January 18, 2011.

Affirmed.