J.E.F. v. E.L.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

J.E.F.,

Plaintiff-Respondent/

Cross-Appellant,

v.

E.L.M.,

Defendant-Appellant/

Cross-Respondent.

__________________________________

December 2, 2014

Submitted August 6, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-001384-13.

E.L.M., appellant/cross-respondent pro se.

J.E.F., respondent/cross-appellant pro se.

PER CURIAM

Defendant appeals from a final restraining order entered against him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and plaintiff cross-appeals from the denial of his request for attorney's fees. We affirm.

Plaintiff, his aunt and a police officer who arrested defendant testified at the hearing. Defendant did not testify. Plaintiff related that the parties had been dating for seven months, and that plaintiff had broken off their relationship and moved out of the apartment they shared a week or so before the incident at issue. That evening, the parties met at a club and decided to spend the night together. When they stopped at defendant's parents' home to pick up some of defendant's personal items, defendant went into the house with plaintiff's cell phone while plaintiff waited in the car.

While inside, defendant apparently reviewed plaintiff's browsing history on his cell phone and discovered that plaintiff had been perusing personal ads that day. The parties had broken up over plaintiff's alleged infidelities. Upon his return to the car, defendant confronted plaintiff with the information from the phone and an argument ensued. Plaintiff testified that defendant started punching him repeatedly about the head. Plaintiff ran from the car to try and rouse defendant's parents. They responded and defendant's father attempted to restrain him while defendant's mother tried to facilitate plaintiff's escape.

As plaintiff left defendant's front yard, defendant broke free from his father and chased plaintiff into the street and resumed punching him about the head. The officer testified that as he arrived, defendant was straddling plaintiff, who was curled in a fetal position in the street trying to ward off defendant's blows. Plaintiff's aunt testified to pictures she took that evening of plaintiff's injuries and plaintiff testified to his damages in the form of co-pays for medical services and the replacement of his eyeglasses and cell phone, both broken by defendant.

Plaintiff also related another incident several months before in which defendant had become angry with plaintiff and cuffed him on the ear. He testified that defendant worked less than a mile from plaintiff's apartment. Plaintiff claimed that defendant cannot control his anger, and that plaintiff had become afraid of him.

The judge denied defendant's motion to dismiss on the basis that no witness had identified defendant as the perpetrator of the assault. She found that the parties had been in a dating relationship and were former household members, thus bringing them within the purview of the Act, N.J.S.A. 2C:25-19d; that defendant had committed a predicate act of simple assault, N.J.S.A. 2C:12-1a; and that plaintiff was in need of a final restraining order to protect him from future acts of domestic violence. The judge awarded plaintiff $673.66 in compensatory damages and denied his request for $5,559.54 in counsel fees and costs.

Defendant appeals from the entry of the final restraining order renewing the arguments he made to the trial judge that he was never identified by any of the witnesses at trial and that plaintiff did not prove the necessity of a final restraining order. Plaintiff contends that the judge erred in denying him his counsel fees. We reject these arguments.

Our review of a trial court's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Findings by the trial court "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 412 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference is especially appropriate in a case, such as this one, in which the evidence is largely testimonial and involves questions of credibility because the trial court's ability to see and hear the witnesses provides it a better perspective than a reviewing court to judge their veracity. Ibid.

A final restraining order may issue only if the judge finds that the parties have a relationship bringing the complained of conduct within the Act, N.J.S.A. 2C:25-19(d); the defendant committed an act designated as domestic violence, N.J.S.A. 2C:25-19(a); and the "restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), 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).

Applying those standards here, we have no doubt that entry of the final restraining order was appropriate. We reject as utterly without merit defendant's assertion that his identity was a genuine issue at trial. Although the history of domestic violence between the parties was limited, defendant engaged in a serious assault on plaintiff and works within a mile of his home. We are thus well satisfied under these circumstances that plaintiff proved a restraining order was necessary for his protection and safety.

An award of attorney's fees in a domestic violence matter rests within the discretion of the trial judge. McGowan v. O'Rourke, 391 N.J. Super. 502, 508 (App. Div. 2007). "'[D]eterminations by trial courts [regarding legal fees] will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). In accordance with that deferential standard of review, we find no abuse of discretion by the trial judge in declining to enter an award of attorney's fees.

Affirmed.