M.M. v. K.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5410-11T2

M.M.,

Plaintiff-Respondent,

v.

K.S.,

Defendant-Appellant.

________________________________________________

April 15, 2013

Submitted April 9, 2013 Decided

Before Judges Hayden and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-2148-12.

Howard S. Teitelbaum, attorney for appellant (Ruben M. Scolavino, of counsel and on the brief).

M.M., respondent pro se.

PER CURIAM

Defendant K.S. appeals from the Final Restraining Order (FRO) entered against him, pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, on behalf of plaintiff M.M., his former girlfriend. For the reasons that follow, we affirm.

The record shows that plaintiff obtained a temporary restraining order against defendant on May 15, 2012. On May 24, 2012, the day scheduled for the FRO hearing, defendant's attorney appeared in court and asked for an adjournment in order to prepare for the trial, which was granted. The court rescheduled the trial to June 1, 2012.

At the next scheduled trial date, defendant s attorney appeared and informed the judge that defendant's witness had not appeared and defendant was unable to reach her by phone. The attorney requested an adjournment to subpoena her. After plaintiff objected, the judge denied the adjournment. The hearing proceeded later in the day, and the witness still had not appeared.

According to plaintiff s testimony at the FRO hearing, she and defendant had been dating for about four years until February 2012. In late April 2012, the parties had resumed their relationship. On May 15, 2012, plaintiff went to defendant s boat around four o'clock in the morning to see defendant because she suspected that he was cheating on her. She found defendant in bed with K.P. and began screaming at them. Then she went back on deck, threw his fishing pole into the water, and left the boat. Defendant chased her, threw her to the ground, beat her punching her in the head three times, once in the eye and tore her hair out. K.R., defendant's companion, also ran from the boat and began screaming at plaintiff but did not hit her. Plaintiff called 911 and showed the police the scratches and bruising. Photos showing her injuries, including scratches on her back and both arms as well as bruising on her arm and left eye area, were introduced into evidence. Plaintiff sought medical treatment at the emergency room of a local hospital but was not admitted.

Plaintiff further testified that there had previously been several incidents of domestic violence. The couple argued frequently and about once per month defendant hit her. He also damaged her property. Specifically, in 2010, he had ripped the car handle off of her car, and just two months before the instant incident he broke three of her car windows and again ripped the door handle off. Plaintiff asked for an FRO because she feared for her life.

According to defendant, he and plaintiff had previously been engaged until he ended the relationship due to her violent behavior. Then she began stalking him. On May 15, 2012, when she found him in bed with K.R., a mutual friend, plaintiff became so enraged that she grabbed K.R. by the hair and began beating her. When plaintiff went back onto land, she started striking K.R's car. K.R. ran off the boat to stop her, and in the ensuing struggle, plaintiff fell to the ground and was bruised and scratched. Defendant denied ever striking plaintiff.

The trial judge found plaintiff s testimony more credible than that of defendant. He found that defendant had committed the predicate act of assault, N.J.S.A. 2C:12:1, and that, pursuant to Silver v. Silver, 387 N.J. Super. 112, 126-28 (App. Div. 2006), because of this assault and the history of domestic violence, plaintiff needed the protection of a restraining order. Accordingly, the judge issued an FRO against defendant in favor of plaintiff. This appeal followed.

The sole issue defendant raises on appeal is that the denial of the requested adjournment violated defendant's due process rights. K.R. is the missing witness and she had relevant information.

We view the grant or denial of an adjournment under an abuse of discretion standard. State v. D Orsi, 113 N.J. Super 527, 532 (App. Div. 1970), certif. denied, 58 N.J. 335 (1971). A decision to deny an adjournment will not be disturbed on appeal unless a misapplication of discretion is demonstrated. Ibid.

Trial courts are mandated by the Act to proceed in a summary manner in domestic violence cases within ten days of the filing of a complaint. N.J.S.A. 2C:25-29a. The Act was enacted with the expressed intent that courts . . . promptly and appropriately offer protection to victims of domestic violence. Depos v. Depos, 307 N.J. Super. 396, 399 (Ch. Div. 1997) (quoting Sperling v. Teplitsky, 294 N.J. Super. 312, 318 (Ch. Div. 1996)). The legislative intent for such mandates is to assure the victim the maximum protection from abuse the law can provide." Ibid. (citing N.J.S.A. 2C:25-18). "To assure such protection, the court s response must be swift because any delay may pose serious and irreversible consequences to the victim." Id. at 399-400.

Under the circumstances here, where defendant received ample notice of the hearing, obtained one adjournment, then requested another adjournment because a non-subpoenaed witness failed to appear without explanation, we are satisfied that the trial judge did not mistakenly exercise her discretion when she refused to grant another adjournment.

Affirmed.