M.H. v. V.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.H.,

Plaintiff-Respondent,

v.

V.H.,

Defendant-Appellant.

______________________________________________________

June 26, 2015

Submitted June 2, 2015 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County, Docket No. FV-02-001704-14.

Ruiz Doolan Law Firm, attorneys for appellant, (Marina Ginzburg, on the brief).

Garrity, Graham, Murphy, Garofalo & Flinn, P.C., attorneys for respondent, (Richard T. Garofalo, of counsel; Mara L. Schiefelbein, on the brief).

PER CURIAM

Defendant, V.H., appeals from a final restraining order (FRO) under the Prevention of Domestic Violence Act of 1991 (the Act), N.J.S.A. 2C:25-17 to -35, entered against her on April 14, 2014, on behalf of plaintiff, M.H. For the reasons that follow, we affirm.

The record reveals that the parties were married in 2008 and had one child, born in 2009. In August 2013, defendant took the child to see her family in another country. The trip was scheduled to last about three weeks, but defendant did not return until March 24, 2014.

On April 4, 2014, plaintiff obtained a temporary restraining order (TRO) against defendant, based on allegations of 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. In the TRO application, plaintiff alleged that domestic violence occurred during a March 27, 2014 incident. He also stated that one prior domestic violence incident occurred between the parties in the past history section of the complaint.

At the April 14, 2014 FRO trial, plaintiff testified that defendant had recently returned to the United States only after he refused to send her more money. He further claimed that he had attempted to get help from the FBI and the State Department in bringing the parties' child back to the United States. According to plaintiff, when he returned home on the evening of March 27, 2014, defendant began yelling, screaming, and throwing things at him, claiming she could not find her belongings or jewelry. At this time, the parties' five-year-old child, who was about ten feet away in a nearby room, began crying. Plaintiff testified that he went to check on their son, and picked him up in order to console him. Defendant, who was still yelling and screaming, followed. According to plaintiff, defendant then began swinging her arms repeatedly and hit plaintiff at least once on the left side of his face, as well as accidentally hitting their son. Plaintiff testified that he went down the stairs and called the police, then went outside "in an attempt to diffuse the situation."

The police arrived a few minutes later. Police Officer John Rynander, the first officer on the scene, testified that he first met plaintiff outside of the house and saw "a red swollen mark on the left side of [plaintiff's] face." Rynander did not see marks or bruises on the child's face. Rynander noticed that plaintiff appeared to be concerned for his and his son's safety. Rynander observed that the master bedroom had clothes strewn all over the place. He spoke to defendant, who denied hitting plaintiff, claiming that he must have hit himself. Based on his observations at the scene, Rynander arrested defendant for assault.

In defendant's testimony, she denied hitting plaintiff and claimed that plaintiff was lying because he was upset she and their child were out of the country for several months. Defendant explained that although she was scheduled to return home in mid-September, her return was delayed for several reasons, including issues with a car loan, and a respiratory tract infection she contracted, which aggravated a preexisting heart condition. Defendant did not return to the United States until a few days before the incident at issue. Defendant further testified that she had previously received a restraining order against defendant in 2012, which she subsequently dismissed in February 2013. In that incident, defendant claimed that plaintiff was screaming and threw a wet napkin at her.

At the close of the trial, the judge found plaintiff's testimony was more credible than defendant's, noting that defendant was "rambling[,]" "nonresponsive to the questions[,]" and that she changed her answers during her testimony. The judge determined that there was sufficient credible evidence showing that an act of domestic violence occurred as defendant assaulted plaintiff by striking him in the face. However, the judge found that there was insufficient evidence to support a finding that defendant had struck the child. She concluded that a final restraining order should be granted for the protection of both plaintiff and the child. The judge reasoned that a single act of domestic violence can constitute domestic violence depending on the circumstances in the case and that in determining if an FRO was necessary, she must consider the protection of "the victim and any child." N.J.S.A. 2C:25-29(a). The judge determined an FRO was necessary under Silver1 because the facts demonstrated "that these two individuals should not be in a room together and they definitely shouldn't be in a . . . room together with the child present." This appeal followed.

On appeal, V.H. argues that there was insufficient credible and admissible evidence to support the trial court's finding that she committed the predicate act of assault under N.J.S.A. 2C:12-1. She further contends that the trial court was biased and incorrectly considered the parties' custodial dispute in making its determination, and that even if an assault did occur, there was no prior history of domestic violence to support the entry of an FRO. Additionally, V.H. claims that she received ineffective assistance from her trial counsel.

Our standard of review in domestic violence matters is exceedingly circumscribed. In particular, we must defer to the trial judge's factual findings unless they are shown to be not reasonably supported by the record and thus "clearly mistaken" or so "wide of the mark" as to result in a denial of justice. C.M.F. v. R.G.F., 418 N.J. Super. 396, 401-02 (App. Div. 2011) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We must accord considerable weight to the trial judge's findings of credibility. Cesare v. Cesare, 154 N.J. 394, 412 (1998). As the Supreme Court has emphasized, we owe special deference to the expertise of the Family Part in making often difficult judgments about the lives of families and children. See E.P., supra, 196 N.J. at 104; Cesare, supra, 154 N.J. at 413.

In adopting the Act, the Legislature declared that "domestic violence is a serious crime against society" because "there are thousands of persons . . . who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants." N.J.S.A. 2C:25-18. The Legislature intended the Act to "assure the victims of domestic violence the maximum protection from abuse the law can provide." Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995) (quoting N.J.S.A. 2C:25-18).

"Domestic violence" means the occurrence of one or more of the fourteen specific criminal acts inflicted upon a person protected by the Act. N.J.S.A. 2C:25-19(a). Here, the judge found the predicate act of assault, specifically that defendant "[a]ttempt[ed] to cause or purposely, knowingly or recklessly cause[d] bodily injury to another[.]" N.J.S.A. 2C:12-1(a)(1).

The commission of one or more of the enumerated acts, however, does not automatically require the issuance of an FRO. Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). The court must also take into account other factors, including the prior history of domestic violence between the parties and the existence of immediate danger. N.J.S.A. 2C:25-29(a); see also Peranio, supra, 280 N.J. Super. at 54. Thus, in considering a complaint for domestic violence, a judge has a "two-fold" task: "[f]irst, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts . . . has occurred[;]" and second, "whether a domestic violence restraining order is necessary to protect [a] plaintiff from immediate danger or further acts of domestic violence." Silver, supra, 387 N.J. Super. at 125-28.

Here, the trial judge heard the testimony firsthand and observed the witnesses before determining that an FRO was necessary to protect plaintiff. As the Supreme Court said in Cesare, supra, 154 N.J. at 413, 416, the trial judge is in a better position than we are to determine whether the evidence proves the predicate offense and the need for a restraining order. We will not second-guess a Family Part judge's fact-findings or credibility determinations so long as they are adequately supported in the record. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007); see also Cesare, supra, 154 N.J. at 413.

Applying the circumscribed review standard here, we accept the trial court's findings as they are supported by substantial credible evidence in the record. Accordingly, we find no basis to disturb the judge's conclusion in accordance with Silver, supra, 387 N.J. Super. at 125-26, that defendant committed the predicate domestic violence act of assault and that plaintiff needed the protection of an FRO.

Further, we find that defendant's other contentions are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). Suffice it to say that the record contains no evidence whatsoever of bias on the part of the judge here. In addition, defendant's claim of ineffective assistance of counsel, which applies in criminal cases based upon the Sixth Amendment right to counsel in criminal cases, Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), does not apply to this civil proceeding. On the contrary, it has not been established that a constitutional right to counsel arises in a civil action under the Act. See Crespo v. Crespo, 408 N.J. Super. 25, 45 (App. Div. 2009), aff'd, 201 N.J. 207, 210 (2010).

Affirmed.

1 Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).