M.R. v. W.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.R.,

Plaintiff-Respondent,

v.

W.R.,

Defendant-Appellant.

______________________________

January 24, 2014

Argued October 21, 2013 Decided

Before Judges Ashrafi and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0479-13.

Richard A. Outhwaite argued the cause for appellant (Shimalla, Wechsler, Lepp & D'Onofrio, L.L.P., attorneys; Mr. Outhwaite, on the briefs).

Robert G. Wilson argued the cause for respondent (Kovacs & Wilson, attorneys; Mr. Wilson, on the brief).

PER CURIAM

In this domestic violence (DV) proceeding, the judge found that defendant W.R. committed harassment and assault against plaintiff M.R., and that a final restraining order (FRO) was necessary. Defendant appeals from the FRO. We affirm.

I.

Plaintiff and defendant, husband and wife, were residing together with their child. Plaintiff obtained a temporary restraining order, and then an FRO, based on two acts of domestic violence. First, plaintiff testified that on or about November 30, 2012, defendant became angry, called him a "f**k," and punched him twice in the chest with a closed fist, causing him pain. A neighbor testified he heard defendant yelling, very angrily and very loudly, that defendant should get the "f**k" out of her "f**king" house. Defendant testified that she was upset with plaintiff and told him he could leave, but that she did not hit him.

Second, plaintiff testified that during an argument on December 9, 2012, defendant again swore at and punched plaintiff twice in the chest with a closed fist, causing pain. Defendant testified that she confronted, but did not strike plaintiff.

Furthermore, plaintiff testified to a prior history of domestic violence throughout their marriage. Defendant would scream at him, call him demeaning and obscene names, and track whom he telephoned. She repeatedly threatened to kill him, their child, and herself. She smashed his framed family photographs, threw down his phone when he was talking to his family, and accused him of "cheating" by speaking to his family because his parents were seeking grandparent visitation. She threatened that if he took the child to visit his family she would tell the police that he stole the car and kidnapped the child.

Plaintiff also testified that in May 2012, she had hit him in the face and chest, choked him, and dug her nails into his neck. After this incident, plaintiff wrote defendant a letter complaining about those assaults, stating he would not tolerate her excessive anger and would no longer be her "punching bag . . . verbally or physically." Plaintiff testified that defendant hit him several times throughout June and July 2012. In one such incident, a tape recording captured defendant berating plaintiff, telling him to f**k himself and to get out of her house, and screaming his name over and over, culminating in his interjection, "I can't believe you hit me," and her reply, "[a]nd I can't believe you are that stupid."

After hearing the testimony at the December 20, 2012 hearing, Judge Thomas C. Miller entered an FRO dated December 21, 2012. Defendant appeals.

II.

Defendant argues that plaintiff did not prove, by a preponderance of the evidence, that she had committed an act of domestic violence under N.J.S.A. 2C:29-15. We must hew to our "limited" scope of review of fact-findings in a domestic violence matter. Cesare v. Cesare, 154 N.J. 394, 411 (1998).

The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." Because a trial court "'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Therefore, an appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice."

[Id. at 411-12 (citations omitted).]

Furthermore, "we give particular deference to matrimonial courts because they 'possess special expertise in the field of domestic relations.'" Peterson v. Peterson, 374 N.J. Super. 116, 121 (App. Div. 2005) (quoting Cesare, supra, 154 N.J. at 412-13).

The evidence supported the judge's findings. Plaintiff's testimony that defendant on two occasions punched him twice in the chest, causing pain, was sufficient for a finding of simple assault. N.J.S.A. 2C:12-1(a)(1); see N.J.S.A. 2C:11-1(a). The the judge's finding of harassment was supported by the evidence that defendant had the purpose to harass, and that her communications were offensively coarse and likely to cause annoyance and alarm, N.J.S.A. 2C:33-4(a); that she subjected plaintiff to striking and other offensive touching, N.J.S.A. 2C:33-4(b); and that her course of conduct was intended to alarm and seriously annoy plaintiff, N.J.S.A. 2C:33-4(c). See J.D. v. M.D.F., 207 N.J. 458, 477-78 (2011).

As the judge recognized, the issue in this case was credibility. The judge credited plaintiff's testimony, which was corroborated by the neighbor, the tape, the letter, and other exhibits. The judge discredited defendant's denials, which were belied by her loud, emotional, angry and demeaning tone on the tape and on the witness stand. The judge also considered and rejected defendant's credibility arguments, including her claim that plaintiff "set up" the taped assault. We find no basis for disturbing the judge's credibility and factual findings.

III.

Defendant next argues that the judge did not engage in the "second inquiry" required in a DV proceeding, namely "whether the court should enter a restraining order" because it is "necessary . . . to protect the victim from an immediate danger or to prevent further abuse." Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006); accord J.D., supra, 207 N.J. at 475-76. To the contrary, the judge specifically considered whether an FRO is needed "to protect the victim from immediate danger and prevent future abuse." The judge found that plaintiff needed an FRO because of the acts and history of domestic violence. The judge found the evidence presented a clear pattern of abusive and controlling behavior, and a classic case of the cycle of domestic violence perpetrated by the "extremely controlling" defendant upon the submissive plaintiff.

Defendant claims that plaintiff had no fear of her because he did not seek protection earlier, and was using the DV proceeding to gain an advantage in a matrimonial action. See Peranio v. Peranio, 280 N.J. Super. 47, 56 (App. Div. 1995). The judge properly considered and rejected those arguments. Defendant cites plaintiff's testimony that going through a divorce, splitting assets, dividing parenting time, and having their child visit his parents "will drive [defendant] crazy." Read in context, however, plaintiff was explaining that he needed the protection of an FRO because the irrational defendant had already threatened to kill him and their child, scaring him, and that the divorce proceedings would make her even more volatile.

IV.

Defendant lastly argues that the judge should have disqualified himself because he had previously adjudicated the grandparents' visitation motion against both parents. The judge did not initially recall handling that earlier motion. When brought to his attention, he made clear it would not affect his judgment. Both parties then indicated that they had no objection to the judge hearing the DV matter. Further, defendant admits the judge did not rely on evidence from the earlier motion. In any event, a judge is not precluded from hearing a case "because of having given an opinion in another action in which the same matter in controversy came in question or given an opinion on any question in controversy in the pending action in the course of previous proceedings therein." R. 1:12-1. Even if we ignored defendant's waiver, the judge did not abuse his discretion in declining to recuse himself. See State v. Medina, 349 N.J. Super. 108, 129-30 (App. Div.), certif. denied, 174 N.J. 193 (2002).