C.C. v. T.W.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

C.C.,

Plaintiff-Appellant,

v.

T.W.C.,

Defendant-Respondent.

_________________________________

May 2, 2014

Submitted March 17, 2014 Decided

Before Judges Parrillo and Kennedy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-000363-13.

Kimm Law Firm, attorneys for appellant (Michael S. Kimm, Francesco A. Savoia and Thomas W. Park, on the brief).

Sara Sencer McArdle, Kevin S. McArdle and Christopher S. Flood, attorneys for respondent (Ms. McArdle, Mr. McArdle and Mr. Flood, on the brief).

PER CURIAM

Plaintiff C.C. appeals from an order of the Family Part denying her request for entry of a final restraining order (FRO) against her estranged husband, defendant T.W.C. We affirm.

The parties were married in July 2003 and have two children, a six-year-old boy and a three-year-old girl. They separated on August 12, 2012, when defendant moved out of the marital home, and agreed upon a visitation schedule of one day per weekend for twelve hours at the marital home.

The incident of which plaintiff complains occurred during one such visit. On Saturday, September 29, 2012, defendant attended his son's soccer game and returned with the boy to the marital home to continue his visitation time. After dinner with the family, defendant asked plaintiff for permission to take the Toyota 4Runner, an SUV which plaintiff had been driving during the marriage, to IKEA to purchase a mattress for his own use. To transport the mattress, defendant needed the SUV's cargo space that the Honda Accord, which he customarily used, lacked. Defendant also suggested taking his son with him. Plaintiff refused to allow defendant to take the car that evening, or even the following day or Monday morning, as proposed by defendant.

An argument ensued and the parties' accounts of what occurred next differ. According to plaintiff:

A Yes, he forcefully took our son and went to the garage. Opened the garage door, and then opened the back door of the 4Runner, and yelled at [our son] to get in. So I stopped [defendant]. And then [defendant] got on the driver's seat and turned on the car. And my son was standing on the back seat right next to it. And I was in between the driver's side and the door.

. . . .

A I was standing here, and I said, I do need this car, and I cannot let you take this car away. And he said, this car is under my name, I can do it anything I want. And he also said, you know, even if you don't get away I'm just going to drive and leave.

Q And what happened next?

A And then [defendant] put the transmission to a rear, and moved, he backed up the car quite fast, a little bit.

Q And were you standing at that moment in the driver's side doorway as is depicted in this photograph?

A Yes. Yes, I was holding onto it. Then [defendant] closed the driver's side door.

Q While you were still in it?

A Yes.

Q Then what happened?

A Then I banged my left knee to the car, and I fell to the ground.

Defendant denied that he attempted to drive the vehicle in reverse or that plaintiff ever fell to the ground. Rather, according to defendant:

And I then entered the car and I turned the engine. But [plaintiff] ran to the driver's side and yanked door open really violently . . . . So I tried to close the door, using my left arm. But she come around the door, the driver's side door. And then the car, and then lean very -- leaned backward using her entire upper body to stop me close the door.

. . . .

So between the between the car door and driver's seat, she was pushing -- she pushing on her entire upper body like this, and then to stop me from closing the car door.

. . . .

Well so I initially closed the door, but she used her entire body, so I couldn't close it, because her -- she's like, she's a strong woman and cannot, so I just give up. And then she says, oh my leg hurts, you're, my leg hurts, now I'm calling the police and you're "fucked" up.

At the close of evidence, the Family Part judge denied plaintiff's application and dismissed the temporary restraining order previously issued on plaintiff's complaint of assault and harassment. Characterizing the incident as a "battle of the wills," the judge further reasoned:

Now in that context I have to say I think I tend to be very cautious in issuing a Restraining Order when it involves a scenario where parties are in the process of a breakup of a relationship. That in fact is the principle announced in J.D. [v. M.D.F., 207 N.J. 458 (2011)] that courts should be careful in those situations. And I think that the tendency of our Domestic Violence Jurisprudence is to make sure it is not applied too broadly to situations again that involve parties in the midst of a breakup. That doesn't mean that there [can't] be, obviously, an act of domestic violence when there's a breakup. But rather tha[t] when you look at situations, you should look at them in that context and be careful.

. . . .

. . . I have difficulty getting around the fact that this particular incident I find was a battle of wills over a car that brought into it emotional and I guess legal and other issues between the parties. And that's how it got to that point. And so I think it would be off the mark to find a party guilty of domestic violence in that context, citing J.D. [v. M.D.F., supra.]

This appeal follows.

The scope of our review is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Id. at 412 (citations and internal quotation marks omitted). Moreover, we accord particular deference to family court factfinding "[b]ecause of the family courts' special jurisdiction and expertise in family matters[.]" Id. at 413.

In this respect, the Court has recognized the difficulty for a "trial court to discern on which side of the line running between domestic violence and ordinary 'contretemps' a particular act properly falls." J.D., supra, 207 N.J. at 482. Yet, Family Part judges "have been specially trained to detect the difference between domestic violence and more ordinary differences that arise between couples, and [because of that expertise,] their findings are entitled to deference." Ibid. (citing Cesare, supra, 154 N.J. at 412-13).

The task of a judge considering a domestic violence complaint, pursuant to the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35, is two-fold. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "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." Ibid. "[W]hen determining whether a restraining order should be issued based on . . . any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property." Id. at 126.

"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." Ibid. The commission of one of the enumerated predicate acts does not automatically mandate the entry of a domestic violence restraining order. Id. at 126-27. "Although this second determination . . . is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors1 set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. As noted, in making this determination, a court must also consider the previous history of domestic violence between the parties. McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007).

Based on our review of the record, we are satisfied that the Family Part judge, in denying the application for an FRO, fully considered the testimony and weighed plaintiff's allegations against the statutory standards and case precedent. We agree with the judge that the evidence was insufficient to support a finding of a purpose to cause bodily harm to plaintiff under N.J.S.A. 2C:12-1, see N.J.S.A. 2C:25-19(a)(2); or to harass her under N.J.S.A. 2C:33-4, see N.J.S.A. 2C:25-19(a)(13). Rather, as the judge found, the incident amounted to no more than a battle of wills, a tug of war, with one individual attempting to shut the door and leave and the other individual attempting to force it open and make the other individual stay. In this regard, we find sufficient credible evidence in the record that plaintiff approached the driver's side door while defendant was already inside of it, yanked it open while defendant was trying to close the door, and then wedged herself in-between the door and the car, preventing defendant from shutting it, and prompting defendant to discontinue his attempt to shut the door. Under the circumstances, and given the Family Part's well-recognized expertise in interpreting the interactions of a couple, J.D., supra, 207 N.J. at 482, we defer to the judge's finding that the evidence established only a dispute between a couple in the midst of a breakup, disagreeing over the use of an automobile. See Franklin v. Sloskey, 385 N.J. Super. 534, 544 (App. Div. 2006).

Affirmed.

1 N.J.S.A. 2C:25-29(a) provides that "the court shall consider, but not be limited to the following factors":

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the protection of the victim's safety; and

(6) The existence of a verifiable order of protection from another jurisdiction.