MARINA CHITOUKHINA v. SERGY SHYTUHIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4235-05T54235-05T5

MARINA CHITOUKHINA,

Plaintiff-Respondent,

v.

SERGY SHYTUHIN,

Defendant-Appellant.

____________________________________________________

 

Submitted December 6, 2006 - Decided December 29, 2006

Before Judges Stern and Lyons.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Bergen County, Docket No. FV-02-001691-06.

Sergy Shythuhin, appellant pro se.

Chitoukhina Marina, respondent pro se.

PER CURIAM

Defendant, Sergy Shytuhin, appeals from a final restraining order ("FRO") entered on March 15, 2006, which prohibits any contact or communication with the plaintiff. In essence, defendant insists that he is the victim because plaintiff, his sister, manufactured false evidence against him.

Plaintiff testified that she was pushed down the staircase of the defendant's Staten Island home and sustained injuries when plaintiff and the parties' mother went to defendant's home in connection with the mother's immigration status. According to plaintiff, after she arrived:

And I was standing in the hall like for 10 or 20 minutes and waiting for the defendant like to dress up, I assume, to get down, . . .

. . . .

And then after that time I heard like whispering in the kitchen which is like upstairs. I didn't really know the layout of the house because it was my first time being there.

So, I got upstairs which is a small staircase and I see three of them: him, his wife and his daughter sitting at the kitchen table.

When I -- I could see all of them. He didn't -- we didn't exchange any words or something, but all three got up accompanied by his wife and daughter like kick her out of the house. He started to approach me.

So, I looked at his face. He was like very like -- like fierce anxious and his -- and I decided to get back where I came from like downstairs.

And instead he walked towards me and he pushed me to the, you know, to -- to this place like, you know, shoulder place and I -- I was -- as I was like almost on the edge of the steps I started to fall.

So, I was trying to hold on to the rails, but unable like to keep the balance I fell on the bottom of the entrance hall, you know, backwards hitting like my head -- neck, actually, back for the most part.

Plaintiff further testified that she suffered injuries, the police were called and she was taken to the hospital. Plaintiff also testified that she was "in fear" of defendant who had previously brought his BB gun into her house. Defendant and his family had lived in plaintiff's New Jersey residence "for several months" when they first came to the United States in 1996.

Plaintiff's mother testified that she did not see what happened but observed plaintiff "on the floor" and that "[s]he was in pretty bad shape."

Defendant testified on his own behalf, and denied any "physical contact" with his sister. He further testified he did not "push" or "touch" her. According to defendant's daughter:

A. I told [plaintiff] that [defendant] can't talk. She insisted on talking. I told her no and I started closing the door. She rammed into the door and pushed me. I fell on the shelf and she came into the house.

Q. And -- and then what happened after that?

A. She started yelling where is Sergy. Come down. Come down. I started screaming for my mom because I was scared. She -- my mom -- about a few seconds later my mom ran down the stairs.

Me and her - me and my mom started telling her to get out of the house, that we don't want her here and my father doesn't want to talk to her.

Q. Did -- did your father come down the stairs at some point after that?

A. Yes, he came down the stairs after that.

Q. And did -- were you instructed at any time to call the police?

A. Yes, after he told her that he doesn't want to speak to her my mom said that's it. My mom and dad agreed. They said that's it. Call the police.

After hearing the testimony, the trial judge rendered a comprehensive oral opinion. He concluded that the parties lived together "as recently as eight years ago." He concluded that their relationship gave rise to jurisdiction under the Domestic Violence Act, and found that plaintiff did not prove harassment. However, the judge credited the mother's testimony, and in essence concluded, based on credibility determinations, that plaintiff proved "by preponderance of the evidence the defendant pushed or shoved her in some way."

We have no basis for disturbing the judgment. A single act can constitute domestic violence for purposes of the issuance of an FRO, and the judge found that an assault occurred. See Cesare v. Cesare, 154 N.J. 394, 402 (1998). Accordingly, we affirm the judgment based on the findings and conclusions of Judge Edward A. Jerejian in his oral opinion of March 15, 2006. See Cesare, supra, 154 N.J. at 411-16 (scope of review). We add that there is jurisdiction for issuance of an FRO based on conduct outside the state at least if the victim "flees" to New Jersey or lives here. J.N. v. D.S., 300 N.J. Super. 647, 652 (Ch. Div. 1996). See also State v. Reyes, 172 N.J. 154, 167-68 (2002).

 
Affirmed.

Apparently defendant did not appear for proceedings on a "petition to adjust [their] mother's [immigration] status to permanent residency." According to plaintiff, defendant was a sponsor of his mother's residency application but "completely abandoned" her when she underwent cancer surgery.

At one point plaintiff testified there was no "history of domestic violence" between the parties.

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5

A-4235-05T5

RECORD IMPOUNDED

December 29, 2006