B.T v. D.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6238-10T2

B.T.,

Plaintiff-Respondent,

v.

D.T.,

Defendant-Appellant.

____________________________________________

August 16, 2012

Argued August 6, 2012 - Decided

Before Judge Ashrafi and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-1211-11.

James M. Porfido argued the cause for appellant.

Christopher P. Gengaro argued the cause for respondent (Lentz & Gengaro, L.L.P., attorneys; Holly Friedland, on the brief).

PER CURIAM

Defendant, D.T., appeals from a final restraining order (FRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17, entered on July 13, 2011 on behalf of plaintiff, B.T., his wife. We affirm.

The record reveals that on June 19, 2011, plaintiff obtained a temporary restraining order against defendant. At the July 13, 2011 FRO trial, plaintiff testified that defendant became angry during a discussion about Father's Day plans and began screaming at her. Then he threw several objects from the kitchen counter, including avocados, an industrial tape measure, and a ceramic flower pot. According to plaintiff, the flower pot hit her on the left cheek, then shattered against the wall, and the tape measure hit her on her left side. Plaintiff testified that she fled part way up the stairs and called the police. When the police arrived, she gave them a statement and was taken to the hospital by ambulance due to her complaints of pain.

In addition, plaintiff testified there was a prior history of domestic violence. She contended that defendant had pushed her down the stairs just a few days before the June 18 incident, leaving bruises on her arm and buttock. Plaintiff related earlier incidents, including an episode where defendant broke her hand, and an occurrence in 2007 when defendant struck her in the face so hard that he broke her glasses. A few months later, plaintiff claimed, defendant beat her badly, resulting in bruises on her forearm, lower back and buttocks. A photo of the injuries, taken by a friend, was admitted into evidence. Plaintiff stated that defendant also constantly verbally abused and berated her. Plaintiff testified that she needed a restraining order because she was fearful of defendant and very concerned that she and her family were in danger. Plaintiff's daughter from a previous marriage testified that she had seen defendant verbally abuse plaintiff.

Two police officers, Sergeant McNichol and Officer Pirillo, testified that they went to the parties' home in response to the emergency phone call. Both reported seeing the avocados and broken flowerpot on the floor. McNichol noticed a mark on plaintiff's cheek but the other officer did not. When the parties gave statements, plaintiff was very upset, and defendant was calm and cooperative.

Shortly after the ambulance had transported plaintiff to the emergency room, McNichol went to the hospital and took photos of the bruises on plaintiff's cheek and arm and buttock. McNichol recalled plaintiff from an incident in the past year when he found her parked in a school parking lot late one evening, "visibly upset" and "crying." When she eventually revealed the problem was violence at home, the officer convinced plaintiff to file a report about it.

In his testimony, defendant denied most of plaintiff's statements. He stated that on June 18, he and plaintiff were struggling over a T.V. remote, which resulted in items from the counter falling to the floor. The fall caused the flower pot to break. Defendant alleged that his wife had a problem with alcohol and pills. A few days prior to the incident, according to defendant, plaintiff, having consumed both strong pain pills and cocktails, had fallen, which was the accurate explanation for the bruise on her buttock. He further testified that, while the parties had been arguing a lot lately, particularly over financial issues, he had never hit, pushed or thrown anything at plaintiff. Defendant related examples of plaintiff's past behavior to show her instability and tendency to exaggerate. Defendant's daughter from a previous marriage testified that she had never seen her father hit or push plaintiff.

At the close of the trial, the trial judge concluded that during the incident on June 18, defendant had assaulted plaintiff by throwing and hitting her with the flower pot. The judge found the testimony of plaintiff and the police officers to be credible. She noted that while she found some of defendant's testimony credible, she did not find his denial that he threw the flowerpot believable. The judge also found, based upon plaintiff's credible testimony, that there was a history of domestic violence, even though there was not sufficient evidence to find that defendant had broken plaintiff's hand. After finding that the predicate act of assault, N.J.S.A. 2C:12-1(a), had occurred, the judge determined that a final restraining order was necessary because of the history of violence and plaintiff's justified fear of future violence. This appeal followed.

On appeal, defendant contends that the trial judge erred in finding that plaintiff proved her case. In essence, defendant challenges the judge's credibility findings and her finding that a restraining order was warranted. He argues that there were too many inconsistencies in the evidence for the judge to determine plaintiff was credible. Even if a predicate act had occurred, defendant argues, based upon the fact that the parties are now separated, plaintiff is not in any danger of future violence.

Our standard of review in domestic violence matters is exceedingly circumscribed. In particular, we must defer to the trial judge's factual findings unless they are shown to be not reasonably supported by the record and thus "'clearly mistaken'" or so "'wide of the mark'" as to result in a denial of justice. N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J 88, 104 (2008) (quoting N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J 596, 605 (2007)); see also C.M.F. v. R.G.F., 418 N.J. Super 396, 401 (App. Div. 2011). We must accord considerable weight to the trial judge's findings of credibility. Cesare v. Cesare, 154 N.J. 394, 412 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J 474, 484 (1974). As the Supreme Court has emphasized, we owe special deference to the expertise of the Family Part in making often difficult judgments about the lives of families and children. See E.P., supra, 196 N.J. at 104; Cesare, supra, 154 N.J. at 413.

In adopting the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, the Legislature declared that "domestic violence is a serious crime against society" because "there are thousands of persons . . . who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants." N.J.S.A. 2C:25-18. The Legislature intended the Act to "'assure the victims of domestic violence the maximum protection from abuse the law can provide.'" Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995) (quoting N.J.S.A. 2C:25-18). The term "victim of domestic violence" refers to persons protected by the Act and includes a person who is a "spouse," as plaintiff is here. N.J.S.A. 2C:25-19d.

"Domestic violence" means the occurrence of one or more of the fourteen specific criminal acts inflicted upon a person protected by the Act. N.J.S.A. 2C:25-19a. However, the commission of one or more of the enumerated acts does not automatically require the issuance of an FRO. Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). The court must also take into account other factors, including the prior history of domestic violence between the parties and the existence of immediate danger. N.J.S.A. 2C:25-29a. See also Peranio, supra, 280 N.J. Super. at 54. Thus, in considering a complaint for domestic violence, a judge has a "two-fold" task: "[f]irst, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more credible acts set forth in N.J.S.A. 2C:25-19(a) has occurred"; and second, "whether a domestic violence restraining order is necessary to protect [a] plaintiff from immediate danger or future acts of domestic violence." Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006).

Here, the trial judge heard the testimony and listened to and observed the witnesses, then thoroughly articulated her findings. We will not second guess a Family Part judge's fact-findings. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). If adequately supported by the record, we must defer to the findings of the trial judge, who is in a much better position to determine whether the evidence presented proved both the predicate offense and the need for a restraining order. Cesare, supra, 154 N.J. at 413.

Applying the circumscribed review standard here, we accept the trial court's findings, as they are supported by substantial credible evidence in the record. Accordingly, we find no basis to disturb the judge's conclusion in accordance with Silver, supra, 387 N.J. Super. at 125-26, that defendant committed an act of domestic violence and plaintiff needed the protection of an FRO.

Affirmed.