P.R v. K.U

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3381-09T3

P.R.,

Plaintiff-Respondent,

v.

K.U.,

Defendant-Appellant.

______________________________________

March 15, 2011

Submitted February 22, 2011 - Decided

Before Judges Kestin and Newman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-001279-10.

K.U., appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant, K.U., appeals from the order of April 14, 2010, denying his motion to reconsider a Final Restraining Order (FRO) in a domestic violence action and from the order imposing the FRO and the amended FRO.1 We now affirm.

By way of background, defendant has four children by a prior marriage. He was living with plaintiff, P.R., for about two years when she left his house, where he resided on the first floor, with his parents living on the second floor, on Vauxhall Road in Union Township.

Plaintiff testified at a hearing before Judge James Hely that on February 5, 2010, K.U. threw her to the floor and kicked her in the back several times. Plaintiff was pregnant with their second child. She also claimed that K.U. had grabbed her by the wrist and that she had a bruise from that incident.

K.U. testified that plaintiff attacked him, struck him in the shoulder with her right hand, and was about to hit him in the face with her left hand when he blocked the blow by grabbing her wrist.

P.R. also mentioned a prior incident that took place on December 25, 2009, when there was another physical altercation. K.U. claimed that it was just a violent argument.

Because a child was involved and there would be visitation, even though the parties may not be living together, the trial judge was concerned about any contact when visitation might occur that could pose a threat or danger to P.R. After some questioning by the court, P.R. stated she was afraid that if K.U. got mad, he would resort to physical violence.

In deciding the matter, the trial judge found P.R. to be "a little more credible than Mr. [U] on what exactly happened on February the 5th and December 25. I find there was a physical altercation." The trial judge found it more credible that K.U. was not acting in self-defense with regard to the February 5, 2010 incident as he testified. He also rejected K.U.'s testimony that there was no physical altercation on December 25, but only a violent argument. The trial judge decided this on the basis of a preponderance of the credible evidence.

On the motion for reconsideration, there was no new testimony presented other than that, according to K.U., the FRO precludes him from performing job functions at McGuire Air Force Base. K.U. has aircraft engineering training, and this order interferes with his job in servicing at any Air Force or other military base.

In denying the motion for reconsideration, Judge Hely pointed out that the time from when the FRO was entered was recent and there was no basis to revise the situation. The trial court pointed out that K.U. had three options: (1) to file an appeal, which he did; (2) to contact an attorney to see if anything could be worked out since P.R. might be amenable to withdrawing the FRO; and (3) to move to dissolve the FRO after a period of time had passed. Judge Hely noted that after the passage of time, there may not be a need for a restraining order and the party who obtained the order may no longer feel it is necessary and might consent to the relief of dissolution.

On appeal, defendant raises the following point:

APPELLANT'S ACTING IN SAFE DEFENSE WITH THE PLAINTIFF IN ORDER NOT TO GET HURT BY THE FACE AS A RESULT OF THE PLAINTIFF'S PUNCHES TO HIS FACE-DEFENDANT, LEAVING THE PLAINTIFF LEFT WRIST WITH A MINOR BRUISE, WOULD NOT CONSTITUTES GOOD CAUSE IN RELATION TO DOMESTIC VIOLENCE AND, THEREFORE, SHE SHOULD NOT HAVE BEEN GRANTED A RESTRAINING ORDER. [Sic].

Our review of the record in the light of the arguments advanced on appeal discloses that the trial judge's findings and conclusions are supported by adequate, substantial, and credible evidence and the arguments made are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(A) & (E). Therefore, especially because "[d]eference is . . . appropriate 'when the evidence is largely testimonial and involves questions of credibility,'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)), on appeal we are bound by the trial court's determinations. See id. at 411-12. "[A]n 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.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We also "accord deference to family court factfinding" because those courts "possess special expertise in the field of domestic relations." Id. at 412-13 (citation omitted). It is of no small moment that Cesare, in which these basic principles of appellate review were applied, arose in the context of a domestic violence proceeding. See id. at 397.

We perceive no basis to second-guess Judge Hely's credibility findings. He even pointed out, in denying K.U.'s motion for reconsideration, the options K.U. would have in seeking to be relieved of the FRO. The trial judge's advice should not go unheeded.

1 We note that the motion for reconsideration or the order denying it are not mentioned in the notice of appeal. The notice specifies that the appeal is from the February 19, 2010 FRO and/or the February 23, 2010 amended FRO. However, since K.U., as a pro se, addressed the reconsideration motion in his brief, we have dealt with the issue in our opinion, treating the notice of appeal as amended to include the order denying the motion for reconsideration.