T.R v. E.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

T.R.,

Plaintiff-Respondent,

v.

E.R.,

Defendant-Appellant.

_______________________________

November 1, 2016

 

Submitted June 21, 2016 Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1419-15.

Evan F. Nappen Attorney at Law, P.C., attorneys for appellant (Louis P. Nappen, on the brief).

Respondent has not filed a brief.

The opinion of the court was delivered by

ESPINOSA, J.A.D.

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

I.

The evidence presented at the FRO hearing can be summarized as follows.

For the last six months, the parties lived in the same residence with their three adult children, with defendant living primarily in the basement. On January 28, 2015, plaintiff went into the basement to retrieve a pizza from the freezer while defendant was down there. She testified he grabbed her shirt, pushed her twice, and kicked her "in the butt." Defendant denied touching plaintiff. The parties' daughter observed plaintiff rubbing a red mark on her back shortly thereafter. Plaintiff said to one of her daughters "straighten out your father. He's going crazy . . . . I need help with him."

On February 3, 2015, plaintiff brought Chinese food home. The parties exchanged obscenities in the kitchen. Plaintiff stated defendant threw the food at her head after she asserted the food was not for him. Defendant denied doing so. The parties' children testified they heard the commotion, went to the kitchen, and observed the Chinese food on the floor. Their son stated his mother was "shaking like panicking."

Plaintiff also testified that defendant threatened violence against her on numerous occasions. For example, defendant allegedly stated, "I'm going to burn this f'ing house down with you in it," and, "I'm going to get my gun and I'm going to blow your f'ing head off," and also said he had already taken an animal life and a human life is no different. Plaintiff believed these threats to be credible because she saw weapons in the house, including two pistols, a rifle, a shotgun, and a pellet gun.

The trial judge found defendant's actions on January 28, 2015, satisfied the requirements for assault under the PDVA. The judge found that neither "party testified 100 percent truthfully," but found plaintiff's version of the basement incident was corroborated by their children, whom the court found to be credible. In addition to finding the predicate act, the court noted the history of violent threats and the Chinese food incident, plaintiff's version of which the court found more credible because it was corroborated by the children's testimony. In light of this history, the court found the single predicate act sufficiently egregious under Cesare v. Cesare, 154 N.J. 394 (1998), to issue a final restraining order.

II.

In his appeal, defendant argues the family court's findings establish only that plaintiff sustained an injury, not that defendant caused the injury or that the injury was sufficiently severe to be considered an assault. He further argues that even if he did assault plaintiff, the court should have weighed more heavily their twenty-five-year relationship without physical abuse and conclude that plaintiff did not require protection. We disagree.

When reviewing decisions by the family court, we defer to findings supported by "adequate, substantial, [and] credible evidence." Gnall v. Gnall, 222 N.J. 414, 428 (2015). Deference is particularly appropriate when the evidence is testimonial and involves credibility issues because the judge who observes the witnesses and hears the testimony has a perspective the reviewing court does not enjoy. Ibid. (citing Pascale v. Pascale, 113 N.J. 20, 33 (1988)). It is "[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to 'ensure that there is not a denial of justice.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

In determining whether to issue an FRO under the PDVA, the court must perform a two-step analysis. Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Id. at 125; accord J.D. v. M.D.F., 207 N.J. 458, 474 (2011). Second, the court must determine whether it "should enter a restraining order that provides protection for the victim." Silver, supra, 387 N.J. Super. at 126; see also J.D., supra, 207 N.J. at 475-76.

The trial judge found defendant's conduct constituted simple assault, an enumerated act under N.J.S.A. 2C:25-19a. Pursuant to N.J.S.A. 2C:12-1a(1), a person is guilty of simple assault if he or she "purposely, knowingly or recklessly causes bodily injury to another . . . ." Defendant's assertion that neither plaintiff nor any witnesses identified defendant as the person who struck plaintiff is belied by the record. Plaintiff identified defendant as her assailant and her daughter observed the injury shortly thereafter. This testimony, which the trial judge found credible, amply supported the finding that the first prong of Silver, supra, 387 N.J. Super. at 125, was satisfied.

The judge was then required to determine whether a restraining order is "necessary." Id. at 126-27. Although this determination may be "perfunctory and self-evident, the guiding standard is whether a restraining order is necessary . . . to protect the victim from immediate danger or to prevent further abuse." Id. at 127. Commission of one of the enumerated acts of domestic violence, without more, does not require the issuance of an FRO. N.T.B. v. D.D.B., 442 N.J. Super. 205, 216 (App. Div. 2015). Factors to be considered include

(1) [t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse; (2) [t]he existence of immediate danger to person or property; (3) [t]he financial circumstances of the plaintiff and defendant; [and] (4) [t]he best interests of the victim and any child . . . .

[N.J.S.A. 2C:25-29a.]

Defendant contends the previous history of nonviolent conduct between the parties should have been given more weight in the family court's Silver analysis, asserting "[a] 25-year history of no prior offensive physical contact as confirmed by plaintiff is remarkable." While a court must consider this factor, it "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." Cesare, supra, 154 N.J. at 402. A party need not show "a pattern of abusive and controlling behavior" as "one sufficiently egregious action [may] constitute domestic violence under the Act, even with no history of abuse between the parties." Id. at 397, 402 (citation omitted); accord Silver, supra, 387 N.J. Super. at 128; see also A.M.C. v. P.B., ____ N.J. Super. _____ (App. Div. Oct. 2016). A court should consider prior abusive acts by the defendant "regardless of whether those acts have been the subject of a domestic violence adjudication." Pazienza v. Camarata, 381 N.J. Super. 173, 183 (App. Div. 2005) (quoting Cesare, supra, 154 N.J. at 405).

Here, the court acknowledged that defendant had not previously assaulted plaintiff, but it also noted he had threatened to kill her and he possessed several firearms with which to carry out those threats. The trial judge found that less than a week after the assault, defendant provoked an altercation with plaintiff that concluded with him throwing Chinese food at her head and on the floor. The trial judge's characterization of this conflict as one that had "escalated" rather than as an aberration in an otherwise safe environment was supported by the proximity in time of these events and defendant's threats to burn the house down with plaintiff in it and to "get [his] gun and . . . blow [her] f'ing head off." The trial judge's conclusion that a FRO was necessary to protect plaintiff from further harm was supported by sufficient evidence to warrant our deference.

III.

Defendant also presents three arguments for the first time on appeal. If an error has not been brought to the trial court's attention, an appellate court will not reverse on the ground of such error unless the appellant shows plain error: i.e., error "clearly capable of producing an unjust result." R. 2:10-2. That possibility must be sufficiently real to raise a reasonable doubt as to whether the factfinder reached a verdict it otherwise would not have reached. State v. Bass, 224 N.J. 285, 308 (2016). An appellate court may properly "infer from the failure to object below that in the context of the trial the error was actually of no moment." State v. Ingram, 196 N.J. 23, 43 (2008) (quoting State v. Nelson, 173 N.J. 417, 471 (2002)).

First, defendant asserts the trial court erred by failing to hear closing statements from either litigant. Defendant did not ask to make a closing statement and has failed to explain what he would have said that may have resulted in a different outcome. We are unpersuaded that the absence of closing arguments was plain error.

Second, defendant argues the trial judge did not have the authority to order defendant to receive an alcohol evaluation. The PDVA specifically empowers the family court hearing a complaint for a restraining order to also order the defendant to undergo "professional counseling" or "psychiatric evaluation." N.J.S.A. 2C:25-29(b)(5), (18). Here, the trial judge told defendant: "I don't know that I'm going to order treatment, but I'm going to order that you undergo an alcohol evaluation." Clearly, the family court is authorized under the PDVA to order professional counseling to treat alcohol abuse, and because an evaluation as to the necessity of such counseling is a less intrusive measure, the PDVA implicitly authorizes the family court to order an alcohol evaluation. See Carfagno v. Carfagno, 288 N.J. Super. 424, 440 (Ch. Div. 1995) ("alcohol use is highly relevant in determining whether the victim still needs protection"). This argument therefore lacks merit.

Third, defendant argues the family court erred by failing to advise him of his right to appeal. An appellate court should dismiss an issue as "moot when our decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Redd v. Bowman, 223 N.J. 87, 104 (2015) (citation omitted). Alternatively, "[a] case is moot if the disputed issue has been resolved, at least with respect to the parties who instituted the litigation." Enron (Thrace) Exploration & Prod. BV v. Clapp, 378 N.J. Super. 8, 13 (App. Div.) certif. denied, 185 N.J. 392 (2005) (citation omitted). Because defendant was granted leave to file the instant appeal, this issue has been resolved and no decision by us on this issue could have any practical effect. Therefore, this issue is moot.

Affirmed.