JUAN MUNOZ v. INOCENCIA GUZMAN PEREZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5588-04T15588-04T1

JUAN MUNOZ,

Plaintiff-Respondent,

v.

INOCENCIA GUZMAN PEREZ,

Defendant-Appellant.

_______________________________

 

Submitted: July 5, 2006 - Decided July 26, 2006

Before Judges Lefelt and Axelrad.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Atlantic County, FV-01-1619-05.

Michael R. Mosca, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant, Inocencia Guzman Perez, appeals from a Final Restraining Order (FRO) entered on cross-complaints under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (DVA), in favor of her former husband Juan C. Munoz. The court found, as the predicate offense, "harassment-offensive touching," N.J.S.A. 2C:33-4b. Munoz does not appeal the simultaneous entry of an FRO against him based on a finding of a similar predicate offense. On appeal, appellant contends the trial court erred in finding her guilty of a violation of the DVA where there was no finding she committed a prescribed offense and, alternatively, the one-time incident of alleged domestic violence does not rise to the level of an offense as contemplated by the DVA. We disagree and affirm.

The parties had obtained temporary restraining orders against one another about a week after an incident occurring on April 28, 2005, based on allegations of assault. Both parties were represented by counsel at the final hearing on May l8, 2005, and testified through an interpreter. The parties were estranged and occupying separate bedrooms. Husband testified that appellant entered his bedroom at around noon while he was sleeping, accused him of having an affair with another woman and slapped him and scratched his face, neck and chest in a jealous rage. He grabbed her arm so she would not hit him in the face, she fell back on the bed, and he ran out of the room. Appellant followed him to the living room and demanded he leave her house, then called the police. Husband testified he took off his shirt and showed the police the marks he claimed appellant admitted she inflicted, then he left the house.

Appellant admitted she woke up her husband because she "needed to talk to him" about a woman who told her she was having an affair with him and she "needed to know the truth about what was happening." She admitted she grabbed him but claimed, "he's tall, so how could I scratch him by the neck?" Although appellant claimed she no longer cared about her husband and wanted nothing to do with him, she also admitted she had taken her husband's cellular phone and attempted to dial a number that appeared frequently, which she believed was his girlfriend, "to see if she would take the call." Appellant claimed her husband grabbed the phone from her and they started to fight, during which he pushed her into the door frame.

Although the trial court was unable to determine whether there was one aggressor or both parties participated in a scuffle, it found the parties engaged in a physical altercation around noon on April 28 after appellant confronted her husband about his alleged infidelity. The court further found that both parties were injured, having observed photographs taken three days after the incident and based on credibility, expressly found that husband was scratched by appellant. The court also concluded that when husband grabbed appellant's arms, he inflicted a bruise on her. Accordingly, he granted each party an FRO, noting it was based on the finding of harassment-offensive touching.

Our scope of review of a trial court's factfinding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We afford due deference to the credibility findings and "feel of the case" by the trial judge who has heard and observed the witnesses. Pascale v. Pascale, 113 N.J. 20, 33 (l988); Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961). This is particularly so with Family Part judges who possess special expertise in these types of matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

It would have been preferable for the trial court to have made an express finding that appellant subjected her husband to an offensive touching with the purpose to harass him when she scratched him during a confrontation about his suspected infidelity, thus constituting the predicate offense of harassment under N.J.S.A. 2C:33-4b, warranting issuance of the FRO. We are satisfied, however, that based on the totality of the circumstances, a finding of an intent to harass, as well as an offensive touching sufficient to constitute an act of domestic violence, may be inferred from this record, and such finding by the judge, although not stated in those exact words, may be inferred from his comments. State v. Hoffman, 149 N.J. 564, 577 (1997); Cesare, supra, 154 N.J. at 404. Accordingly, as the record supports the factual and legal finding that appellant committed an act of harassment under N.J.S.A. 2C:33-4b against her husband, which rose to the level of domestic violence, the FRO was properly issued against appellant.

 
Affirmed.

(continued)

(continued)

5

A-5588-04T1

RECORD IMPOUNDED

July 26, 2006