A.L.P. v. D.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A.L.P.

Plaintiff-Respondent,

v.

D.F.

Defendant-Appellant.

________________________________________________________________

September 5, 2013

Submitted August 14, 2013 Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-2221-12.

Angela Rodriguez, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant D.F. appeals from the final restraining order (FRO) entered against him on June 4, 2012. We affirm.

In the domestic violence complaint filed by plaintiff A.L.P. on May 5, 2012 and amended May 17, 2012 to expand the details of the prior history of violence, plaintiff alleged that defendant, her former boyfriend, called her at 11:38 p.m. on May 4 and harassed her by cursing at her on the phone and telling her to look outside her window where he was parked. She also alleged that he had assaulted her and committed criminal trespass in March of that year by calling her at 3:00 a.m., intoxicated, seeking the keys to her car to retrieve items he had in the trunk. He then forced himself into her house, pushed and shoved plaintiff, looking for a man he thought was in the house. He threw plaintiff out of his way, damaging the doorknob on her daughter's bedroom door.

Plaintiff testified that after the March incident, her thirteen-year-old daughter told her that defendant had sexually assaulted her. Plaintiff reported the incident and criminal charges were brought against defendant. Both parties then filed various criminal complaints against the other.1

At trial, plaintiff and the police officer who took her complaint testified. Defendant, his cousin and a friend testified on defendant's behalf.

Judge Mizdol made the following findings:

With respect to the alleged incident of March 21st through March 22nd, I am satisfied that the defendant did appear at the plaintiff's home seeking to speak with her. I am satisfied, based upon plaintiff's testimony, that he came into the second floor of her apartment, that he then went through, shoving her to the side, and went into the apartment, searching through the house, believing that there was another [man] there, that, in fact, [he] went into . . . plaintiff's daughter's room to search through closets, bathrooms, shower stalls, et cetera to determine if someone was present in the apartment.

I am less sure of the incident that is alleged to have occurred on May 4, but I am satisfied that [the officer] did make copies or photos of restricted calls that came to the plaintiff. This occurred after defendant would have already been charged with an alleged sexual assault upon her daughter. And whether it was he or others at his behest that may have made that call, I cannot determine as we sit here based upon the testimony.

Judge Mizdol found particularly telling defendant's admission of his controlling behavior in looking through plaintiff's cellphone for evidence of her infidelity2 in the early morning of February 15th after plaintiff fell asleep. Before entering the FRO, the judge found a history of domestic violence and determined that plaintiff reasonably feared defendant.

Defendant raises the following issues on appeal:

POINT I: THE TRIAL COURT INCORRECTLY HELD THAT THE DEFENDANT COMMITTED THE PREDICATE ACT OF ASSAULT UNDER N.J.S.A. 2C:12-1.

POINT II: EVEN IF THIS COURT FINDS THAT THE PREDICATE OFFENSE OF ASSAULT OCCURRED, THERE WAS NO HISTORY OF DOMESTIC VIOLENCE TO SUPPORT THE ISSUANCE OF A FINAL RESTRAINING ORDER.

A. THE TRIAL COURT INCORRECTLY MERGED THE "MARCH INCIDENT" WITH THE "MAY INCIDENT" TO FIND THAT THE PLAINTIFF FEARED FOR HER SAFETY, ALTHOUGH IT FOUND THE MAY INCIDENT DID NOT TAKE PLACE.

B. THE TRIAL COURT INCORRECTLY CONSIDERED ALLEGATIONS OF AN ALLEGED SEXUAL ASSAULT ON PLAINTIFF'S DAUGHTER FOR WHICH THERE WAS NO CHARGE IN THE COMPLAINT OR TESTIMONY IN THE RECORD TO USE AS A FACTOR TO DETERMINE THAT THE PLAINTIFF HAD REASON TO FEAR FOR HER SAFETY.

C. THE DEFENDANT'S ACT OF LOOKING THROUGH PLAINTIFF'S PHONE WAS A DOMESTIC CONTRETEMP[S] AND NOT AN ACT OF DOMESTIC VIOLENCE MEANT TO EXERT CONTROL OVER THE PLAINTIFF OR TO INSTILL FEAR IN HER.

POINT III: LASTLY, EVEN IF THE COURT FINDS THAT A HISTORY OF ABUSE IS NOT REQUIRED, THE PREDICATE ACT OF SHOVING A PERSON TO THE SIDE TO CONSTITUTE ASSAULT IS NOT SUFFICIENTLY EGREGIOUS TO CONSTITUTE DOMESTIC VIOLENCE UNDER THE ACT.

We are guided by the Prevention of Domestic Violence Act of 1991 (the Act), N.J.S.A. 2C:25-17 to -35. The statute is designed "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, assault, N.J.S.A. 2C:12-1, criminal mischief, N.J.S.A. 2C:17-3, and harassment, N.J.S.A. 2C:33-4, are three of the predicate offenses that may support a finding of domestic violence and the issuance of a FRO. N.J.S.A. 2C:25-19(a)(2), (10) & (13).

Defendant argues that the judge erred in finding the predicate act of assault as it was inconsistent with the testimony of defendant's cousin. Defendant's cousin testified that defendant was with him the night before, was not intoxicated and did not wake him to leave the home in the early morning hours when plaintiff testified defendant came to her house and assaulted her. The judge noted that defendant's cousin "candidly[] [told her] not only that he is close to the defendant, they are like brothers . . . ."

Judge Mizdol found plaintiff's testimony regarding this incident to be credible. We will not disturb the trial court's findings unless they are demonstrated to lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). See also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13.

Plaintiff's testimony provided substantial, credible evidence of the assault. The prior history of domestic violence between the parties informs the decision as to whether an FRO is required. As our Supreme Court has stated:

[T]he Act does require that "acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties." Peranio [v. Peranio,] 280 N.J. Super. [47,] 54 [(App. Div. 1995)]; accord Corrente [v. Corrente,] 281 N.J. Super. [243,] 248 [(App. Div. 1995)]. Although a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis. Therefore, not only may one sufficiently egregious action constitute domestic violence under the Act, even with no history of abuse between the parties, but a court may also determine that an ambiguous incident qualifies as prohibited conduct, based on a finding of violence in the parties' past.

[Cesare, supra, 154 N.J. at 402.]

Defendant argues that the judge was uncertain as to whether the May incident occurred. To the contrary, as previously noted, the judge found it difficult to determine "whether it was [defendant] or others at his behest" who made the harassing May call, not whether the call was made. The judge implicitly found that the call had occurred and, based on the officer's testimony, the judge concluded that plaintiff was genuinely put in fear. Judge Mizdol did not consider the alleged sexual assault on plaintiff's daughter as an act of domestic violence, but rather as a reason for discord between the parties. We do not second-guess Judge Mizdol's determination, based on her experience, that defendant's admitted act of surreptitiously looking at messages on plaintiff's cellphone was indicative of a desire to exercise control over her, which is common in the domestic violence context.

Defendant also argues that the evidence of violence was insufficient to find that "a domestic violence restraining order [was] necessary to protect plaintiff from immediate danger or further acts of domestic violence" as required by Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006). Judge Mizdol reasonably concluded that the act of assault coupled with the other behaviors exhibited by defendant required the protection of an FRO.

Affirmed.

1 The judge stated that defendant had filed a complaint against plaintiff for false reporting, and the parties had filed at least four additional complaints against one another dealing with simple assault, criminal mischief and theft.

2 Defendant claimed plaintiff was working as a prostitute.