J.A.B. v. J.L.M.

 

(NOTE: The status of this decision is Published.)

                             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                        NOT FOR PUBLICATION WITHOUT THE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-1452-16T3

J.A.B.,

        Plaintiff-Respondent,

v.

J.L.M.,

     Defendant-Appellant.
__________________________

              Submitted January 24, 2018 – Decided February 27, 2018

              Before Judges Alvarez and Geiger.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FV-12-0736-17.

              Christina L. Bennett, attorney for appellant.

              Respondent has not filed a brief.

PER CURIAM

        Defendant J.L.M. appeals the entry of a final restraining

order (FRO) on October 28, 2016, under the Prevention of Domestic

Violence Act, 
N.J.S.A. 2C:35-17 to -35.              We affirm.

        We discern these facts from the trial of October 28, 2016.

Plaintiff J.A.B. and defendant began dating while in high school.
After graduating, plaintiff attended Rutgers University, living

at   the   school's   Livingston   campus,   while   defendant   continued

living at home in South Orange and attended a school for court

reporters.     The parties' relationship began deteriorating when

plaintiff thought defendant became controlling with regard to the

various social events plaintiff attended on campus.              Plaintiff

testified the relationship ended on September 6, 2016, due to

defendant's controlling behavior, although the parties continued

to communicate.

      In early October 2016, the parties argued about plaintiff's

plan to attend a fraternity party in late October.               Defendant

wanted to know details about it and how plaintiff planned to get

home.

      Plaintiff made it clear she wanted to end the relationship,

and accompanied defendant to her dormitory room so he could

retrieve some personal belongings.           While placing the items in

defendant's car, the parties argued again.

      Plaintiff testified that when she turned to leave, defendant

assaulted her by punching her "reasonably hard" in the back with

a closed fist, leaving a mark.       Plaintiff did not see the closed

fist but said she felt a fist on her back and it hurt.           Plaintiff

told defendant she was going to call the police.         He responded he

did not care and, according to plaintiff, threatened to post

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embarrassing naked pictures of her on the internet.          Defendant

then drove away.    Plaintiff filed for and obtained a temporary

restraining order (TRO) against defendant on the grounds of assault

based on these events.

     Defendant admitted he was mad. While denying he punched

plaintiff, he admitted he "pushed her, probably hard," when she

walked away from him.    Immediately after leaving, defendant began

repeatedly calling and texting plaintiff's cell phone.            After

being unable to reach plaintiff, defendant began calling and

texting from his father's phone.       Plaintiff testified she received

over one hundred phone calls from defendant.         Plaintiff further

testified defendant went on her Instagram account and changed her

name to "slut."

     The parties also testified about a prior incident on August

16, 2016.    A scuffle broke out during an argument when plaintiff

wanted to leave and take her laptop computer.      During the struggle

her computer screen cracked.   She said defendant pushed her on her

chest forcing her backwards.   Defendant testified plaintiff pushed

him first.

     Plaintiff further testified she was afraid of defendant,

being "more afraid of the harassment that might follow."       She also

indicated defendant had, from time to time, shown up on campus

uninvited, which the trial court found "troubling."         When asked

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whether there was any reason to believe defendant would want to

physically hurt her, plaintiff answered, "possibly."          She likewise

thought he would "possibly" retaliate because she had filed a

restraining order against him.

      In an oral decision on October 28, 2016, the trial judge

found by a preponderance of the evidence that defendant committed

the predicate act of assault against plaintiff during the October

12, 2016 incident.   In reaching that decision, the judge stated

he found plaintiff's "testimony was straightforward and candid."

The judge specifically found plaintiff credible when she testified

defendant was controlling and had punched her in the back.                The

judge concluded, "she sure knew what it felt like and whether it's

a hard push, whether it's a punch, it felt like a punch to

[plaintiff] and it had to be pretty hard, based on [defendant's]

own admission.   He said it was probably pretty hard."

      With regard to prior history of domestic violence, the judge

found plaintiff's version of the August 16, 2016 incident credible

and   straightforward,   reasoning       that   when   plaintiff   "had   the

opportunity to embellish her testimony she did not."               The judge

found defendant assaulted plaintiff on that date by pushing her

in the chest.

      The judge then considered whether an FRO would be necessary

to protect plaintiff from further domestic violence.          Based on the

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predicate act of assault, the prior history of assault, and the

fact plaintiff was still a student, the judge found an FRO was

necessary to protect plaintiff.

       On   appeal,   defendant    argues    the     trial   court    erred    in

concluding defendant committed the predicate act of assault in the

absence of finding defendant attempted to cause or purposely,

knowingly,    or   recklessly     caused    bodily    injury   to    plaintiff.

Defendant further argues the trial court erred in concluding an

FRO was necessary to protect plaintiff from immediate danger or

to prevent further acts of domestic violence.

       Our standard of review of the trial court's factual findings

is limited.     Cesare v. Cesare, 
154 N.J. 394, 411 (1998).             We are

generally bound by the trial judge's findings of fact                     "when

supported by adequate, substantial, credible evidence."                 Id. at

411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 
65 N.J.
 474, 484 (1974).      Findings and conclusions of the trial judge are

entitled to enhanced deference in family court matters.                 Id. at

413.    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.          Pascale v. Pascale, 
113 N.J.
 20, 33 (1988) (citing Gallo v. Gallo, 
66 N.J. Super. 1, 5 (App.

Div. 1961)).    It is "[o]nly when the trial court's conclusions are

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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." N.J. Div. of Youth & Family Servs. v. E.P., 
196 N.J.
 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v.

G.L., 
191 N.J. 596, 605 (2007)).

      The entry of a final restraining order requires the trial

court to make certain findings.             See Silver v. Silver, 
387 N.J.

Super. 112, 125-27 (App. Div. 2006).                The court "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:25-19(a) has occurred."                  Id. at 125.       The

court should make this determination "in light of the previous

history of violence between the parties."              Ibid. (quoting Cesare,


154 N.J. at 402).        Next, the court must determine whether a

restraining    order   is    required       to    protect    the   party   seeking

restraints from future acts or threats of violence.                   Id. at 126-

27.   That means there must "be a finding that 'relief is necessary

to prevent further abuse.'"        J.D. v. M.D.F., 
207 N.J. 458, 476

(2011) (quoting 
N.J.S.A. 2C:25-29(b)).

      Here,   the   record   supports       the    trial    court's   credibility

determinations and factual findings, including that plaintiff was

credible.     There was ample evidence to support that finding.



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       A simple assault is committed when a person "[a]ttempts to

cause or purposely, knowingly or recklessly causes bodily injury

to another."         
N.J.S.A. 2C:12-1(a)(1).      "'Bodily injury' means

physical pain, illness or any impairment of physical condition[.]"


N.J.S.A. 2C:11-1(a).         The court gave credence to plaintiff's

version of events that defendant committed an assault by punching

her in the back with a closed fist, causing pain and leaving a

mark.

       A restraining order will not issue based solely on the

commission of a predicate offense listed in the Act.              Bittner v.

Harleysville Ins. Co., 
338 N.J. Super. 447, 454 (App. Div. 2001)

(citing N.B. v. T.B., 
297 N.J. Super. 35, 40 (App. Div. 1997)).

A court must also consider additional factors that include "(1)

[t]he previous history of domestic violence between the [parties],

including     threats,    harassment    and   physical   abuse;   (2)     [t]he

existence of immediate danger to person or property; . . . [and]

(4) [t]he best interests of the victim."          
N.J.S.A. 2C:25-29(a)(1),

(2),    and   (4).     Indeed,   "the   guiding   standard   is   whether       a

restraining order is necessary, upon an evaluation of the factors

set forth in 
N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the

victim from an immediate danger or to prevent further abuse."

Silver, 
387 N.J. Super. at 127.



                                        7                               A-1452-16T3
      We agree with the court that the record supported the need

to protect plaintiff against further abuse based on defendant's

assaultive behavior on August 16, 2016, and October 12, 2016,

defendant's      controlling    behavior,        defendant's    inappropriate

conduct after the October 12, 2016 incident, and plaintiff's fear

he would physically harm or retaliate against her in the future.

The previous history of domestic violence, including physical

abuse, was an appropriate factor warranting the entry of an FRO.

See   
N.J.S.A.    2C:25-20(a).      The       defendant's    threat    to   post

embarrassing photographs of plaintiff on the internet and his

manipulation     of   her   Instagram       account   were   also   appropriate

considerations.       We are satisfied the record supported the entry

of the FRO.

      Affirmed.




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