D.M v. L.M

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4379-09T3

D.M.,

Plaintiff-Respondent,

v.

L.M,

Defendant-Appellant.

________________________________________________________________

March 8, 2011

Submitted February 28, 2011 - Decided

Before Judges Rodr guez and Coburn.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Union County, Docket No. FV-20-001649-10.

Picillo & Picillo, attorneys for appellant

(Natalee A. Picillo, on the brief).

Respondent has not filed a brief.

PER CURIAM

Final restraining orders were entered pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, against both parties. Plaintiff consented to the entry of the order against him, but defendant refused to consent to entry of an order against her. That led to a testimonial hearing and the entry of the final restraining order against defendant from which she now appeals.

Both parties testified, but there stories did not differ significantly. They had divorced and shared the care of one child. On a prior occasion, about two years before the incident in question, plaintiff had "slammed [defendant] in the chest." This led to their separation, which ended in divorce.

On April 11, 2010, the parties had an angry telephone exchange shortly before plaintiff brought their child back to defendant's home. When defendant opened the screen door to let the child in, she also handed plaintiff an envelope. Having just thrown some bags into the house, plaintiff then "took the envelope and threw it on the -- front grass, and all the papers went flying around." Defendant testified that plaintiff then "got belligerent and got up into my face, spitting in my face and yelling." She responded by pushing "him back away from [her] face to get out of [her] space." Plaintiff then grabbed defendant's arms and ripped her t-shirt, which came off her head. Defendant's arms were bruised as a result of that attack. Plaintiff then approached defendant again and again she pushed him away.

Plaintiff testified, admitting to the angry telephone call. Although he claimed defendant "kind of shove[d] the envelope into [his] chest," he acknowledged that he "took it from her, and . . . threw it at her." He said she slammed the door in his face, which made him angry. He slapped the door with his hand, and she yelled that he had broken it, and "shoved [him] in the chest," which caused him "to take a step or two back." At the same time, she told him to leave her property. He further admitted that after the first push, he "ran back up into her face," which was when she pushed him again. He admitted grabbing defendant's arms and did not deny that he used enough strength to bruise her.

The trial judge found defendant touched plaintiff before he touched her, and that her touching "can constitute an assault." He rejected defendant's claim of self-defense, saying: "I'm not so sure I agree with that. By a preponderance of the evidence, I find that it wasn't just defensive. It was her assertion." The judge also found that plaintiff was "intimidating in his conduct that day obviously triggering that assault back."

As the trial judge properly recognized, a restraining order could not be issued in this case without first finding that defendant had committed a simple assault on plaintiff. Franklin v. Sloskey, 385 N.J. Super. 534, 540 (App. Div. 2006).

The only possibly relevant section of the assault statute is N.J.S.A. 2C:12-1(a)(1), which makes a person guilty of assault if he or she "attempts to cause or purposely, knowingly or recklessly causes bodily injury to another." Bodily injury is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a).

Here, the judge made no finding with respect to defendant's state of mind, other than to say that she was responding to plaintiff's intimidating conduct. Nor did he find that plaintiff suffered any physical pain or impairment of physical condition. That is not surprising since plaintiff said that the only effect of the pushes was to cause him to take a step or two backwards. Given the absence of the requisite findings on defendant's state of mind and the result of her conduct, we are obliged to reverse. Consequently, we need not discuss the substantial merits of defendant's claim that her conduct was reasonable self-defense.