S.P v. K.P

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2600-09T1

S.P.,

Plaintiff-Respondent,

v.

K.P.,

Defendant-Appellant.

_______________________________

April 1, 2011

Submitted: March 2, 2011 - Decided:

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-001502-10.

Jermaine J. Mercer, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

In this domestic violence case, defendant appeals from a December 10, 2009 final restraining order (FRO) entered in favor of his wife. We affirm.

The parties have been married for approximately five years and have had a history of defendant pushing, shoving, and throwing things at his wife. Before the FRO was entered, defendant called his wife during the work day at least ten times, but she refused to return his calls. He also called her colleague, accused him of having an affair with her, threatened to harm him, and searched his wife's cell phone for text messages.

Around midnight, on December 7, 2009, defendant accused his wife of having an affair, locked her out of their bedroom, and called her obscenities. Fearing for her safety, she called the police and, once they arrived, she planned to pack up their three children and go to a hotel. Instead, defendant left the home because it took his wife too long to gather the children.

Approximately an hour and one-half later, defendant returned to the home and continued to argue with his wife. In continued fear, she called the police again and, after she dialed 9-1-1, defendant threw a phone at his wife's head. The phone grazed her head and she locked herself in a bathroom until the police returned. When the police arrived, they arrested defendant, and removed him from the home.

On December 10, 2009, Judge David Katz conducted the FRO hearing. Judge Katz found the wife's testimony to be "very credible" and concluded that defendant was "defensive and dismissive." The judge stated that the wife proved the predicate acts of assault, N.J.S.A. 2C:12-1, and harassment, N.J.S.A. 2C:33-4. Judge Katz found that there was a prior history that defendant pushed his wife around and has thrown things at her, and that a FRO was necessary to protect her.

On appeal, defendant contends that the judge failed to consider "all relevant evidence" before entering the FRO. We disagree.

Our review of the Family Part s fact-finding function is restricted so 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); Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010). Reviewing courts are to generally "'defer to the factual

findings of the trial court because it has the opportunity to

make first-hand credibility judgments about the witnesses who

appear on the stand; it has a "feel of the case" that can never

be realized by a review of the cold record.'" N.J. Div. of

Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting

N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104

(2008)).

Family courts are accorded additional deference for their

fact-finding because of their special expertise in such matters.

Ibid. Conversely, "'where the focus of the dispute is . . .

alleged error in the trial judge's evaluation of the underlying

facts and the implications to be drawn therefrom, the

traditional scope of review is expanded.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). Even then, however, "we will nonetheless accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (quoting M.M., supra, 189 N.J. at 279), stay denied, 551 U.S. 1117, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007).

We will "not second-guess [Family Part judges' factual]

findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (citing Cesare, supra, 154 N.J. at 413). We exercise de novo review when we are called upon to appraise a trial judge's interpretation of law. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

When determining whether to grant an FRO pursuant to the

the Act, the judge must apply the dual-element test set forth in

Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). See also Cesare, supra, 154 N.J. at 402-05. "First, the judge

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:25-19a has occurred." Silver, supra, 387 N.J. Super.at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.

It is well-established that commission of one of the

predicate acts of domestic violence set forth in N.J.S.A. 2C:25-

19 does not, on its own, "automatically . . . warrant the

issuance of a domestic violence [restraining] order." Corrente

v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The determination whether such an order should be issued must be made "in light of the previous history of violence between the plaintiff and defendant including previous threats, harassment[,] and physical abuse and in light of whether immediate danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29a(1) and (2)); Peranio, supra, 280 N.J. Super. at 54.

We see no reason to disturb the factual findings made by Judge Katz. We have carefully reviewed the record and the arguments presented by counsel and conclude that the issues presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).