A.H. v. A.B.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A.H.,

Plaintiff-Respondent,

A.B.W.,

Defendant-Appellant.

________________________________

December 17, 2013

Submitted December 9, 2013 Decided

Before Judges Harris and Kennedy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-0356-13.

Pitman, Mindas, Grossman, Lee and Moore, P.C., attorneys for appellant (Heidi V. Rivkin, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant A.B.W. appeals from the September 13, 2012 final restraining order entered by the Family Part in favor of plaintiff A.H. We affirm.

I.

A.B.W. and A.H. were in a romantic relationship for several years. They are the parents of a five-year-old son. As of August 8, 2012, the parties lived separately, but between 2007 and 2010, they resided under one roof.

On August 8, 2012, at approximately 8:00 a.m., the parties became embroiled in a heated argument concerning their child. According to A.H., "[A.B.W.] jumped out [of] the car, ran around the car, and jumped in my face." After A.H. told A.B.W. that she was "not scared" of him, A.B.W. "snatched [A.H.] up by [her] neck and threw [her] down on the ground." A.H. testified that after she fell down, she hit her head on the concrete sidewalk. When A.H. attempted to stand up, "[A.B.W.] pushed [her] back down on the ground."

A.H. finally stood up, and when she got up, A.B.W. "went to come at [her] again." A.H. stated, "At that time, I hit him in the face, head, I don't really know, I just swung and I know I contacted," sending A.B.W.'s eyeglasses flying. A.H. then retreated into her residence and called the police.

A.B.W. recounted a somewhat different version of the August 8 events. After conceding that his relationship with A.H. was "up and down, rocky," A.B.W. testified that when he arrived at A.H.'s residence to pick up his son for parenting time, A.H. began to scream and curse, and ultimately punched A.B.W. in the face. A.B.W. "grabbed her hands and [he] pushed her away but she went back she took off her shoe and threw it at [A.B.W.] and [he] ducked the shoe and . . . then she [was] grabbing . . . on [his] shirt." Finally, when A.H. returned to her home, A.B.W. "got back in the car and [he] locked both doors."

A temporary restraining order was entered in A.H.'s favor in short order, and a trial to determine whether to issue a final restraining order was conducted on September 13, 2012. The only witnesses were A.H. and A.B.W. None of the police officers who responded to the scene on August 8, 2012, testified.

After canvassing the available evidence, the trial judge first observed that because the parties were initially engaged in a legitimate argument about the welfare of their son, the "quality of the language used," the "finger pointing," and "the argument in [and] of itself" were not species of harassment. The judge then made credibility findings, as follows:

Between what I've heard and I have to do I have to find I find, quite frankly, observing the demeanor of the . . . parties. Observing . . . Mr. A.B.W.'s excitement . . . in this courtroom, that I suspect he did get out of that car. And that he did I don't suspect, I find, he did get out of the car. I find that plaintiff's version to be a more credible one.

I mean, she doesn't deny getting up and hitting him. . . . I find her version to be credible. I find her to be believable. . . . It's almost confrontational sitting at counsel table, that he . . . did grab her by the throat. Probably without even thinking about what he was doing and pushed her backwards.

The judge found that A.B.W. assaulted A.H.,1 but "because it's not alleged here today," he did determine whether A.H.'s actions were "an assault in return."

Lastly, the judge considered the necessity of a final restraining order under the second prong of Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006) ("The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim."). After recounting the history of the parties' turmoil, the judge concluded that there was an objective threat of future violence. Accordingly, although not changing the parties' parenting schedule, the judge granted the final restraining order. This appeal followed.

II.

On appeal, A.B.W. claims that his due process rights were violated "because (1) the Judge did not rule based upon a preponderance of evidence, findings of fact, or conclusions of law, and (2) the defendant was deprived of the effective assistance of counsel." We find no merit in either of these arguments, and affirm.

Our review of a trial court's fact-finding is limited. The "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 (l998). Moreover, "[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. "Deference 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)). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

In adjudicating a domestic violence case, the trial judge has a "two-fold" task. Silver, supra, 387 N.J. Super. at 125. "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:25-19[(a)] has occurred." Ibid. (citing N.J.S.A. 2C:25-29(a)). "The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim." Id. at 126. Whether a restraining order should be issued depends on the seriousness of the predicate offense, on "the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse," and on "whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. l995) (citing N.J.S.A. 2C:25-29(a)(1), -29(a)(2)).

Applying these standards to our review of the first argument raised by A.B.W., we discern no basis for disturbing the trial judge's decision to grant a final restraining order. The judge specifically found that A.H.'s account of the August 8, 2012 incident was credible and there is substantial credible evidence in the record to support that finding.

The predicate act of assault is committed when a person "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]" N.J.S.A. 2C:12-1(a)(1). "Bodily injury" is "physical pain, illness or any impairment of physical condition[.]" N.J.S.A. 2C:11-1(a). See also State v. Stull, 403 N.J. Super. 501, 505 (App. Div. 2008). The trial judge, after explaining who and what he believed, properly applied the statute in concluding that A.H. was the victim of A.B.W.'s assault.

Turning to the ineffective assistance of counsel argument, which turns on defense counsel's purported gaffe in not calling one or more of the responding police officers as witnesses, we conclude that such a theory has no applicability to a civil matter arising under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Even if applicable, we reject the claim because A.B.W. has failed to make a prima facie showing of ineffective assistance of counsel in accordance with the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42 (1987); and their progeny.2

1 Specifically, after reciting the definition of assault, N.J.S.A. 2C:12-1(a), and finding that A.H. suffered lacerations to her ankles and lip, the judge stated,

Certainly, to grab somebody by the neck, push them backwards to knock them down to the point where they cut their lip, cut their ankles on the ground like that is, at the very least, reckless within the statutory definitions of [assault] in [Title] 2C, which is what this refers to. So I do find that an assault occurred.

2 We are unpersuaded that police officer witnesses, who did not observe the fracas between A.B.W. and A.H., would have been able to present testimony or documentary evidence that would be admissible, and which would have likely changed the result.