A.P. v. D.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A.P.,

Plaintiff-Respondent,

v.

D.P.,

Defendant-Appellant.

_______________________________

December 2, 2016

Submitted November 9, 2016 - Decided

Before Judges Reisner and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FV-08-685-15 and FV-08-688-15.

Puff & Cockerill, attorneys for appellant (Christine C. Cockerill, on the brief).

Klineburger and Nussey, attorneys for respondent (D. Ryan Nussey and Carolyn G. Labin, on the brief).

PER CURIAM

This appeal arises under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Defendant D.P. (husband or defendant) appeals from a June 24, 2015 order, denying his motion to set aside an April 30, 2015 final restraining order (FRO) and grant him a new trial. Finding no miscarriage of justice, we affirm.

Defendant and his wife, plaintiff A.P. (plaintiff or wife) filed applications for domestic violence restraining orders against each other, concerning incidents alleged to have occurred on January 23, 2015. The wife amended her application to include an additional incident that allegedly occurred on January 20, 2015. The Family Part entered a temporary restraining order (TRO) against each party in favor of the other party. The trial court later held a two-day hearing - on February 23, 2015 and April 30, 2015 - to decide the parties' respective FRO applications.

At the FRO hearing, at which both parties were represented by counsel, they each testified concerning alleged domestic violence that occurred on January 23, 2015. The husband testified that the wife tried to grab a cell phone from his hand while he was video-recording her in the act of screaming epithets at him. He alleged that she injured his hand in the process and also threw his laptop computer to the floor. The wife testified that she was responding to defendant's threats that he would post intimate pictures of her on a social media website and that he would kill her if she took the children away.

The wife also testified that on January 20, 2015, defendant accused her of having an affair. She testified that he grabbed her, threw her on the couch and physically held her down, and threatened to kill her. According to the wife, this incident occurred between "8:00 to 9:00 PM." In his testimony, the husband did not deny or even address the wife's allegation that he assaulted her on the evening of January 20, 2015. Further, although the judge scheduled a second day of testimony for rebuttal, the husband did not present any evidence to rebut the allegations about the January 20 incident. He did present a witness attesting to his hand injury, allegedly resulting from the January 23 incident.

After hearing the testimony, and evaluating the parties' credibility, the judge issued an oral opinion finding that neither party's actions on January 23, 2015 constituted domestic violence. However, he found that the husband assaulted the wife and threatened to kill her during the January 20, 2015 incident, and that constituted domestic violence. He also credited the wife's testimony about prior acts of domestic violence, as historic background. In light of that DV history, the judge found that the January 20 incident warranted the issuance of a FRO in favor of the wife and against the husband. See Cesare v. Cesare, 154 N.J. 394, 401-02 (1998) (In weighing the need for an FRO, the court must consider any prior history of domestic violence between the parties.).

On May 20, 2015, defendant, through a new attorney, filed a motion "for a new trial pursuant to R. 4:49-1." The motion was supported by defendant's certification with a series of attached exhibits, and two additional witness certifications. Defendant's certification alleged that his original trial attorney should have presented additional evidence at the FRO hearing. He contended that the additional information in the motion exhibits demonstrated that the outcome of the FRO hearing was a miscarriage of justice. Based on his recollection of the trial testimony and his review of the trial transcripts, the Family Part judge disagreed and denied the motion. This appeal followed.

We begin by considering our standard of review. "The trial judge shall grant the motion [for new trial] if . . . it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). On appeal, we apply the same standard as the trial judge. We determine whether the record gives rise to "a pervading sense of 'wrongness'" in the result. Risko v. Thompson Muller Auto. Grp., 206 N.J. 506, 521-22 (2011) (quoting Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997)).

However, in deciding the issue, we must give "due deference" to the trial judge's feel for the case. Jastram v. Kruse, 197 N.J. 216, 230 (2008). That principle applies even more strongly where the judge conducted a bench trial and was responsible for evaluating witness credibility and weighing the evidence. See Dolson v. Anastasia, 55 N.J. 2, 6 (1969) (noting, on a new trial motion, the deference due to a jury's evaluation of witness credibility); see also Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Ultimately, we consider whether, in light of the applicable standards, the trial judge's decision was an abuse of discretion. See Lindenmuth, supra, 296 N.J. Super. at 48-49.

In his appeal, defendant presents the following points of argument

I. THE TRIAL COURT ERRED IN NOT GRANTING A NEW TRIAL AS CLEAR AND CONVINCING EVIDENCE HAS BEEN SUBMITTED TO SHOW THAT THE GRANTING OF A NEW TRIAL IS NECESSARY TO PREVENT A MISCARRIAGE OF JUSTICE

II. A NEW TRIAL MUST BE GRANTED AS A RESULT OF PLAINTIFF'S PERJURED TESTIMONY

III. DEFENDANT/APPELLANT HAD INEFFECTIVE ASSISTANCE OF COUNSEL

We find no merit in defendant's first two points, which essentially overlap. We have closely read defendant's motion certification. Nowhere in the certification does defendant specifically state that he did not assault his wife on January 20, 2015. Instead, the certification carefully avoids addressing what, if anything, occurred when defendant returned home from work on that date.

We have also carefully considered the additional materials defendant presented. Those documents do not clearly demonstrate that the issuance of the FRO was a miscarriage of justice. R. 4:49-1(a).

In support of his motion, defendant presented certifications from two alleged alibi witnesses, concerning the alleged assault on January 20. One of the witnesses stated that on that night, defendant was coaching a school basketball game until "well after 8:00 p.m." However, according to the wife, the assault occurred between 8:00 p.m. and 9 p.m. Hence, the witness's testimony would not have ruled out defendant's presence in the marital home at 9:00 p.m. The other alibi witness was not at the basketball game, and therefore his testimony would have been of marginal, if any, relevance.

The records of the calls from the wife's cell phone number to defendant's cell phone number, which defendant also proffered, showed calls made before 9:00 p.m., and therefore did not establish that defendant failed to arrive home by 9:00 p.m. Further, there was no testimony or other evidence that the wife, as opposed to one of the children, placed those calls. Defendant's additional documents would have made no difference to the outcome of the FRO hearing and do not warrant further discussion. See R. 2:11-3(e)(1)(E). Based on this record, we cannot conclude that defendant established, "clearly and convincingly," that issuing the FRO was a miscarriage of justice. R. 4:49-1(a). Nor did his motion filing establish that the wife's testimony was perjurious. Therefore, we find no abuse of the trial court's discretion in denying the new trial motion.

Defendant's third issue was not presented to the trial court, and we decline to consider it for the first time on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973). However, we note that defendant cites no case law supporting the right to re-try a domestic violence FRO hearing because of alleged ineffective assistance of counsel.

Affirmed.