A.M.I. v. A.I.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A.M.I.,

Plaintiff-Respondent,

v.

A.I.,

Defendant-Appellant.

_______________________________________

June 5, 2015

Submitted May 11, 2015 Decided

Before Judges Guadagno and Gilson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-001075-14.

Lance Brown and Associates, LLC, attorneys for appellant (Lance D. Brown, on the brief).

Sekas Law Group, LLC, attorneys for respondent (Martin V. Asatrian and Rachel M. Schuster, on the brief).

PER CURIAM

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

The facts were established at a two-day trial where both parties were represented by counsel and at which both parties, as well as a police officer, testified. At the time of the incident that gave rise to the restraining order, the parties had been married for over twenty-three years and together they had two adult children. Plaintiff, the wife, testified that on the morning of November 29, 2013, while defendant, her husband, was sleeping she took his cell phone to see what websites he had visited. Defendant woke up and confronted plaintiff and they got into an argument. According to plaintiff, defendant spat in her face. Defendant then grabbed plaintiff's left hand and partially ripped off the nail of plaintiff's thumb, causing her to bleed and causing her pain. Plaintiff went on to testify that during the course of the argument, defendant cursed at her and she was "humiliated," "fearful," and "afraid."

Plaintiff then called the police. One of the responding police officers testified at trial. That officer explained that when he arrived, plaintiff appeared visibly upset and her left thumbnail was partially pulled back and was bleeding. The officer also testified that he observed blood in several areas of the parties' bedroom. Defendant was arrested and charged with assault.

Although advised by the police that she had a right to immediately seek a temporary restraining order ("TRO"), plaintiff did not seek such an order on November 29, 2013. Four days later, on December 3, 2013, plaintiff did apply for and was granted a TRO against defendant.

At trial, plaintiff testified that the parties had argued intensely over the course of their relationship. She went on to testify that defendant had a history of threatening her, including threats that he would kill her. Plaintiff also testified about prior incidents in the late 1990s and in 2011 where defendant hit her and caused her injuries. In support of her testimony, plaintiff introduced into evidence photographs showing bruising she had sustained as a result of the incident in 2011. She also introduced a broken cell phone that she testified defendant had smashed during the incident in 2011. Plaintiff went on to testify about incidents in 2013, where she felt defendant lost control, causing her to fear him. Concerning one of the incidents in 2013, plaintiff testified that defendant had deliberately bent her finger back causing her finger to be injured. Plaintiff also introduced into evidence a photograph of her injured finger.

In his defense, defendant testified and described a different version of the events on November 29, 2013. Specifically, defendant testified that he woke up and found plaintiff with his phone and plaintiff started yelling at him about his use of Myspace, a social networking website. Defendant then testified that plaintiff went to hit him and he put his hand up in self-defense. Defendant denied striking plaintiff or purposely spitting in her face on November 29, 2013. Defendant did acknowledge that he had become very angry on November 29, 2013, when he was arguing with plaintiff. Defendant also testified that in the past, plaintiff had threatened him, had hit him and had often called him obscene names. When defendant tried to testify about specific alleged incidents of plaintiff assaulting him, counsel for plaintiff objected. The court sustained that objection, reasoning that defendant had no claims against plaintiff and that in the context of this case his testimony of plaintiff's actions was not relevant to whether plaintiff had been subject to domestic violence.

Defendant also sought to offer the testimony from his adult son and the wife of plaintiff's nephew concerning alleged acts of domestic violence by plaintiff against defendant. Plaintiff's counsel objected. The court sustained that objection, again reasoning that the relevant issue was whether plaintiff had been subject to domestic violence and not whether defendant, who had no claim against plaintiff, had suffered domestic violence on other occasions.

After hearing the testimony and reviewing the evidence, the judge, Honorable Mary F. Thurber, in a thoughtful and thorough oral opinion, made comprehensive findings of facts and credibility findings. The court found plaintiff credible and defendant incredible. The court then found that defendant had committed a simple assault on plaintiff on November 29, 2013, by grabbing her hand and injuring her thumbnail. The court also found that defendant had harassed plaintiff by spitting in her face, which the court found was an offensive touching. The court went on to find that there had been a "significant history of domestic violence" between the parties. The court specifically found plaintiff's testimony concerning the incidents in the late 1990s, 2011 and 2013 to be credible and believable. Finally, the court found that plaintiff was in need of an FRO to protect her from further acts of domestic violence.

On appeal, defendant makes several procedural and substantive arguments. Procedurally, defendant contends that the trial court committed prejudicial error by not allowing testimony from the parties' son and the wife of plaintiff's nephew. Defendant also argues that the court improperly precluded him from testifying about specific instances of abuse by plaintiff against defendant. Substantively, defendant argues that there was no proof of an assault because defendant acted in self-defense and defendant did not intend to assault plaintiff. Furthermore, defendant contends that when he grabbed his phone from plaintiff, that was at best a form of marital "contretemps" and not an act of domestic violence. Thus, defendant asks that we reverse the FRO and remand the matter for a new trial. We are not persuaded by any of defendant's arguments.

Our scope of review is limited when considering an FRO issued by the Family Part following a bench trial. A trial court's findings are binding on appeal "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Ins. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). This deference is particularly appropriate where the evidence at trial is largely testimonial and hinges upon a court's ability to make assessments of credibility. Id. at 412. We also keep in mind, the expertise of trial court judges, who routinely hear domestic violence cases in the Family Part. Id. at 412-13. Consequently, we will not disturb the "factual findings and legal conclusions of the trial judge unless [we are] 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." S.D. v. M.J.R., 415 N.J. Super 417, 429 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412).

We first address defendant's substantive arguments. To obtain an FRO under the PDVA, a plaintiff must establish certain elements by a preponderance of the evidence. J.D. v. M.D.F., 207 N.J. 458, 474 (2009) (citing Crespo v. Crespo, 408 N.J. Super. 25, 32-34 (App. Div. 2009), aff'd o.b., 201 N.J. 207 (2010)). The parties must have a relationship that brings the complained of conduct within the ambit of the PDVA. See N.J.S.A. 2C:25-19(d). A marriage is such a relationship. Plaintiff must then prove that defendant committed one of the predicate offenses, as enumerated in N.J.S.A. 2C:25-19(a), such as harassment. See N.J.S.A. 2C:33-4 (defining harassment); N.J.S.A. 2C:25-19(a)(13) (listing harassment as an eligible predicate offense under the PDVA). Finally, plaintiff must show that the restraining order is necessary for the protection of the victim. Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006); see also J.D., supra, 207 N.J. at 475-76; L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 536 (App. Div. 2011).

Here, we find no basis to upset the fact findings or legal conclusions of the trial court. As we have noted, both parties testified at the trial. The trial judge had ample opportunity to assess credibility and found plaintiff to be credible and defendant to be incredible. The trial court's findings that defendant had committed an act of assault and an act of harassment were amply supported by the evidence at trial. Purposely or recklessly grabbing someone's thumb and causing the thumb nail to be partially torn and bleed can be a simple assault. N.J.S.A. 2C:12-1. Similarly, purposely spitting in someone's face can be an offensive touching under the definition of harassment. N.J.S.A. 2C:33-4(b).

The trial court's finding that there was a history of domestic violence by defendant against plaintiff was also supported by the evidence at trial. The court credited plaintiff's testimony of previous incidents of hitting and abuse. Finally, the trial court's finding that there was a need for a restraining order to protect plaintiff from further acts of domestic violence by defendant was likewise supported by the evidence at trial.

Turning to defendant's procedural arguments, we find no error by the trial court. Subject to certain mandatory provisions within the rules of evidence not applicable here, determinations on the admissibility of testimony at trial are committed to the sound discretion of the trial court. See Townsend v. Pierre, 221 N.J. 36, 52-53 (2015); L.T. v. F.M., 438 N.J. Super. 76, 89 (App. Div. 2014) (quoting State v. Burns, 192 N.J. 312, 332 (2007)); N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 571 (App. Div. 2010) (quoting State v. Darby, 174 N.J. 509, 518 (2002)). Therefore, "an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." Hanisko v. Billy Casper Golf Mgmt., Inc., 437 N.J. Super. 349, 362 (App. Div. 2014) (quoting State v. Brown, 170 N.J. 138, 147 (2001)).

Here, defendant sought to introduce evidence concerning specific acts that plaintiff allegedly committed against defendant through his own testimony and through the proposed testimony from his son and the wife of plaintiff's nephew. The trial court correctly and appropriately reasoned that such testimony was not relevant to whether defendant had committed an act of domestic violence against the plaintiff. Significantly, it is undisputed that neither the son nor the wife of plaintiff's nephew were witnesses to the events on November 29, 2013, that formed the basis for plaintiff's allegations against defendant. Moreover, there was no dispute that the proposed testimony from the son and from the wife of plaintiff's nephew related to incidents that were not part of the subject of the trial.

With regard to his own testimony, defendant was permitted to testify about plaintiff's general actions against him. It was only when defendant tried to get into specific acts of alleged previous domestic violence against him that the court appropriately sustained an objection based on relevancy. In some situations, a plaintiff's own past violence against a defendant can be relevant. For example, if defendant claims self-defense or goading by plaintiff. See N.J.S.A. 2C:25-29(a)(1) (which states that the court "shall consider . . . [t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse"). In this case, however, defendant made no legitimate claim of goading. Moreover, his claim of self-defense in the assault on November 29, 2013, was not found to be credible by the trial court. Furthermore, alleged acts of previous domestic violence by plaintiff were found by the court not to be relevant to a defense of the claims at issue. Thus, the trial court was within her discretion to preclude such testimony based on relevance. See N.J.R.E. 401 (defining relevancy); N.J.R.E. 403 (specifying grounds for excluding evidence claimed to be relevant); N.J.R.E. 404 (codifying "anti-propensity" principles to exclude character evidence).

Finally, on this appeal defendant also argued that after each of the incidents concerning the history of domestic violence between the parties, the parties made up and reconciled. That argument is not persuasive. It is well recognized under the cycle of domestic violence that victims often do not initially complain and can suffer years of abuse because they are fearful of triggering further escalations in their abusers' conduct towards them. See State v. Reyes, 172 N.J. 154, 163-64 (2002) (recognizing that domestic violence rarely consists of an isolated event); State v. Kelly, 97 N.J. 178, 192-95 (1984) (discussing why battered women do not leave an abusive relationship). Consequently, absent specific findings of facts to the contrary, an argument by defendant that the parties often reconciled after incidents does not establish that the domestic abuse did not occur.

In summary, none of defendant's arguments demonstrate any error by the trial court or any abuse of discretion.

Affirmed.