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DOCKET NO. A-2523-07T22523-07T2








Argued September 9, 2008 - Decided

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-000236-08.

Mark W. Phillips argued the cause for appellant (Rylak and Gianos, attorneys; Mr. Phillips, on the brief).

Howard Duff argued the cause for respondent (Nemergut & Duff, attorneys; Mr. Duff, of counsel and on the brief).


Defendant Lillian Muzyka appeals from a final restraining order entered by Judge Ann R. Bartlett on January 10, 2008, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. For the reasons that follow, we affirm.

On December 17, 2007, plaintiff Robert Herko filed a domestic violence complaint, alleging that on November 7, 2007, defendant came to his home, screamed profanities, and struck him in the face. He also alleged that on November 29, 2007, defendant stole plaintiff's work equipment from a storage locker. Plaintiff claimed that defendant had committed an assault, burglary, criminal trespass, and harassment. Plaintiff also claimed that, from 1998-2003, defendant had threatened to cut off his genitals. The judge granted plaintiff's motion for a temporary restraining order and set the matter down for a hearing on plaintiff's application for a final restraining order.

At the hearing, which took place on January 10, 2008, evidence was presented which established that the parties were married on July 17, 1992, and had lived apart since 2003. Plaintiff is a self-employed commercial and fine art photographer. Defendant is a family practice physician. In November 2007, plaintiff was residing with his girlfriend in Whitehouse Station, New Jersey. At the time, defendant was residing in Yuma, Arizona.

Plaintiff testified that on November 7, 2007, at approximately 6:00 a.m., defendant arrived at his residence. Plaintiff was asleep. Plaintiff's girlfriend, Rebecca Allen, answered the door, but she did not admit defendant into the home. Ms. Allen informed plaintiff that his wife was at the door. Plaintiff said that he got up, dressed, and went outside of the house to speak to defendant. Plaintiff told defendant that he had nothing to say to her and asked her to leave.

Defendant refused to go and, when plaintiff turned to go inside, defendant followed him into the house. Plaintiff stated that defendant was "extremely angry" and she began to curse at him. Plaintiff told her to leave the house. Ms. Allen apparently had retreated upstairs and hid in the upstairs bedroom. Defendant screamed at her to come out and called her a "princess," "whore," and a "bitch." Ms. Allen told defendant to leave.

Plaintiff testified that, at that point, defendant called plaintiff a "son of a bitch" and struck him on the right side of his face. Plaintiff said that the blow caused him pain. In addition, defendant told plaintiff that she was going to change the locks on the house in Arizona and "take care of" plaintiff's dogs. Plaintiff said that defendant had threatened his dogs in the past.

Plaintiff did not call the police that day. He testified that Ms. Allen told him that, if the matter were reported to the police, it would only cause more trouble. Plaintiff stated that, later in the day, defendant went to his studio in Manhattan, where she questioned "members" of the studio about plaintiff's work, clients, associates, and his assistants.

On December 10, 2007, plaintiff traveled to Arizona to retrieve some photographic equipment he had stored there. On December 11, 2007, plaintiff went to the storage facility to obtain his equipment, but he found that all of his lockers were empty. An investigation revealed that defendant had previously taken the equipment. Defendant filed an action for divorce on December 11th.

Plaintiff testified that he was concerned for his safety because of certain threats that defendant had made in the past. Plaintiff said that, several times between 1998 and 2003, defendant told him that if she ever caught him with another woman, she would cut off his genital organ and throw it in the garbage disposal so that it could not be recovered.

Plaintiff also testified that he had been prompted to seek a restraining order on December 17th because, earlier in that month, defendant's office assistant called several times. She informed plaintiff that defendant was getting angrier and angrier and was going to return to New Jersey.

Defendant testified that she went to plaintiff's New Jersey residence on November 7th because plaintiff had not come home to Arizona for ten months and he kept giving her excuses why he could not catch his flights. She said that she had been sending plaintiff money for his studio and for his mortgage payments.

Defendant explained that she rang the doorbell, and a woman answered the door. According to defendant, the woman slammed the door in her face. Defendant waited outside for ten minutes and then called plaintiff on his cell phone. She told plaintiff that they had to speak.

Plaintiff came to the door and said that the woman who answered the door was just a friend who was "sacking out on the couch." When plaintiff moved to the side, defendant entered the home. The woman had gone upstairs. Defendant testified that she said, "[O]kay princess, why don't you come on down here, why don't you meet the wife you've been screwing on - meet the wife of the man you've been screwing."

The woman refused to come out but told defendant that she did not want to be called a "princess." Defendant then called her a "slut" and a "hussie." She called plaintiff an "SOB" and said that he was no longer welcome at home in Arizona. The woman said that if defendant did not leave she was going to call the police. Defendant testified, "I turned to leave and before I did emotion overtook me and without being aware of it I slapped him." She said that she did not mention the dogs.

Defendant denied that she had ever threatened to cut off plaintiff's penis and throw it down the garbage disposal. She conceded that she had spoken to plaintiff about a similar incident, but claimed that she was only recounting discussions that she had with some of her patients. Defendant insisted, however, that she did not threaten to harm plaintiff. She said that it was merely a "theoretical" discussion.

Judge Bartlett placed her decision on the record. She found that defendant struck plaintiff in the face and caused him pain. The judge noted that there had been prior acts of domestic violence, specifically defendant's past threats to cut off plaintiff's genitals. The judge stated that:

defendant admits the discussion, [but] says it wasn't a threat. I found the plaintiff to be a more credible witness. Defendant . . . clearly was distraught the morning of November 7th, clearly was upset and became angry as she realized that plaintiff was living in a home for which she was paying with another woman. But defendant's rationalization of the threat to . . . cut off [plaintiff's] penis, was something less than credible. The Court finds it was not just an intellectual discussion or recounting of one of defendant's patient's remarks, but rather was a threat aimed at plaintiff.

The judge concluded that defendant had committed an assault, as defined in N.J.S.A. 2C:12-1. In addition, the judge found that defendant had committed a defiant trespass, in violation of N.J.S.A. 2C:18-3b.

The judge found, however, that defendant did not commit a burglary under N.J.S.A. 2C:18-2. The judge also found that defendant had not harassed plaintiff, in violation of N.J.S.A. 2C:33-4. The judge stated that:

[h]arassment occurs when with the purpose to harass another, that is annoy or alarm another, one subjects another to striking, kicking, [shoving], or other offensive touching, or threatens to do so. There's no question that the defendant subjected the plaintiff to offensive touching and a striking. That's clear. That's admitted by everybody. The other element, however, is her state of mind. I believe her when she says she was livid and just lost it for a minute or had an angered reaction. I find that she didn't have the purpose to intimidate, annoy, or alarm. It was virtually a reflexive reaction to being hurt at finding out that [plaintiff] was living with another woman. So I don't find a harassment offense has been demonstrated by a preponderance of the evidence. However, it only takes one [offense] and I have found assault and criminal trespass.

The judge further found that issuance of a final restraining order would serve the purposes of the PDVA. The judge commented:

In this case plaintiff has said that his fears are defendant is going to show up on his doorstep again and commit the same kind of violence or the violence that she threatened, which was to remove his genitalia, . . . And I think under the circumstances that fear is well demonstrated. It is related to the facts of the case. It's a subjective standard, not an objective standard, but it has to bear some relationship to what's gone on in the past and I find it does. And the [PDVA] will be well served by issuing a final restraining order [in this] case so I will do so.

Judge Bartlett entered a final restraining order on January 10, 2008, memorializing her decision. This appeal followed.

Defendant argues that: 1) defendant did not commit an act of domestic violence because the conduct at issue was an "isolated" incident that did not occur in a "family-like" setting; 2) the trial judge erred because defendant did not have the "requisite level of intent to support a finding of domestic violence or to support the entry of a final restraining order;" and 3) the judge erred by refusing to allow defendant to cross-examine plaintiff.

We have carefully reviewed the record in light of the arguments raised by defendant and the applicable law. We are convinced that defendant's contentions are entirely without merit. R. 2:11-3(e)(1)(A) and (B). We affirm substantially for the reasons stated by Judge Bartlett in the decision that she placed on the record on January 10, 2008. We add the following brief comments.

The standard of review that governs our consideration of defendant's appeal is well-established. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

"Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms, supra, 65 N.J. at 484). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

We are satisfied that there is sufficient credible evidence in the record to support Judge Bartlett's finding that defendant committed an act of "domestic violence" as that term is defined in N.J.S.A. 2C:25-19a. Here, the record clearly established that defendant assaulted plaintiff by striking him in the face and causing him pain. An assault under N.J.S.A. 2C:12-1 is an act of "domestic violence" when "inflicted upon a person protected" under the PDVA. N.J.S.A. 2C:15-19a(2). Clearly, defendant was "a person protected" under the PDVA. He was a "victim of domestic violence" because he had been subjected to "domestic violence by [his] spouse." N.J.S.A. 2C:25-19d. Therefore, we reject defendant's assertion that this incident was not covered by the PDVA because it purportedly did not occur in a "family-like" setting.

We also reject defendant's assertion that a final restraining order was not warranted in the circumstances. The evidence established that defendant was angry when she learned that plaintiff was residing with his girlfriend in a residence purchased, in part, with defendant's money. Defendant assaulted plaintiff. She previously had threatened to seriously harm plaintiff. As Judge Bartlett found, plaintiff's concerns for his physical safety were justified.

We also find no merit in defendant's contention that the judge unfairly denied her the opportunity to cross-examine plaintiff. The record shows that defendant appeared at the January 10th hearing without an attorney. After plaintiff testified, the judge informed defendant that she had the right to cross-examine plaintiff "and the way you will do it, because you can't speak to the plaintiff, is you pose to me questions you want me to pose to [plaintiff]." The judge added that defendant could cross-examine the other witnesses presented by plaintiff in the same manner. Defendant responded that she did not have any questions for plaintiff and all she wanted to do was state her case. We are satisfied that defendant was given a full and fair opportunity to present questions to the judge for purposes of cross-examining plaintiff and she elected not to do so.







September 24, 2008