J.E.N. v. M.D.N.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

J.E.N.,

Plaintiff-Respondent,

v.

M.D.N.,

Defendant-Appellant.

_______________________________________________________________

June 18, 2014

Submitted June 4, 2014 Decided

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-2041-13.

Cynthia H. Hardaway, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant, M.D.N., appeals from a February 19, 2013 Final Restraining Order (FRO) issued by the Family Part pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. At the hearing, plaintiff, J.E.N., and defendant testified to differing versions of the events underlying plaintiff's allegation of domestic violence. The judge credited plaintiff's testimony and found, by a preponderance of the evidence, that defendant had committed the predicate act of simple assault upon plaintiff, and that there was a need for an FRO to protect plaintiff from future acts of domestic violence. On appeal, defendant contends the evidence in the record does not support the entry of the FRO. We reject this contention and affirm.

The underlying facts are not complex. At the time of the incident, plaintiff and defendant had been married for almost forty-five years, and continued to live together in the marital home. Plaintiff and defendant were both in their sixties. Plaintiff suffered from depression, for which she attended group sessions and took medication.

On February 11, 2013, plaintiff and defendant were at home when they began arguing about repairs to the washing machine. Plaintiff claims defendant came into her bedroom, took her metal cane, got in her face, and told her that if he hit her with the cane, he would kill her.

Plaintiff testified she had received temporary restraining orders (TROs) against defendant on six prior occasions. In each instance, she voluntarily dismissed the orders before proceeding to a final hearing. More specifically, in 1998 plaintiff received a TRO based upon an allegation that defendant had tied a belt around her neck and choked her. She stated that in another incident defendant had struck her in the eye with his fist. She recounted being struck in the face and the stomach on several other occasions. Plaintiff testified that the most recent incident made her afraid for her life because of the previous threats and assaults.

Defendant, however, testified that plaintiff was bi-polar, and had not been sleeping or taking her medication regularly. He agreed with plaintiff's testimony that on the night of the incident the discussion regarding the washing machine turned into an argument, and he admitted he was angry when he went into plaintiff's bedroom. However, he claims as plaintiff approached and pushed him, he backed up and warned her that he would call the police. He denied threatening plaintiff with her cane in his hands.

In response to the judge's questions regarding the prior incidents of domestic violence, defendant denied ever smacking, choking, or punching plaintiff in the stomach. He claimed he was trying to protect her from herself because she is bi-polar. On cross-examination, however, with respect to the prior incidents of the domestic violence, counsel asked:

Q: And is it your testimony today that all these other allegations that she told the judge that when you put a belt around her neck and left bruises, or when you punched her in her face and left bruises . . ., you're saying that all of those other incidents didn't occur.

A: No, they did.

In summation, counsel argued defendant committed the predicate act of harassment, N.J.S.A. 2C:33-4, and urged the court to grant the FRO given plaintiff's continued fear, the presence of imminent danger, and the extensive history of domestic violence. Meanwhile, defendant, who represented himself, argued the incident did not happen the way plaintiff indicated. He explained plaintiff's testimony was due to her bi-polar condition for which he had put her in various programs for her own well-being.

At the conclusion of the hearing, Judge Michael R. Casale found plaintiff's testimony credible and defendant's testimony not credible. He found an extensive history of domestic violence by both parties; that defendant had committed simple assault when he approached plaintiff and put the cane in her face, and threatened to kill her with it; that plaintiff feared defendant would injure her in the future; and that an FRO was necessary for her protection. This appeal followed.

On appeal, defendant raises only one point.

THE COURT'S RULING WAS NOT SUPPORTED BY THE EVIDENCE AND SHOULD BE REVERSED IN THE INTEREST OF JUSTICE.

More specifically, defendant contends the court failed to (1) consider the financial circumstances of the parties; (2) permit defendant to present evidence of plaintiff's mental state; and (3) permit defendant to testify about the prior incidents of domestic violence. Defendant further contends the court erred in finding that imminent danger existed to warrant an FRO to protect plaintiff from further acts of domestic violence.

Having reviewed these contentions in light of the record and the controlling legal principles, we are satisfied they are without merit. We conclude the court's ruling is based upon findings that are adequately supported by the evidence. R. 2:11-3(e)(1)(A) and (E). We add only the following comments.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that 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 (1998). "Because 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)).

We intervene only when convinced that the trial judge's factual findings and legal conclusions "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, "the trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.E., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Applying these standards, we discern no reason to disturb Judge Casale's decision.

A plaintiff seeking an FRO under the Act must establish by a preponderance of the evidence that the defendant committed an act of domestic violence. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). The Act defines domestic violence as the commission of one or more of the fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19(a). Among the fourteen predicate offenses is assault, N.J.S.A. 2C:12-1. If proven, these predicate offenses may entitle a plaintiff to the entry of an FRO. N.J.S.A. 2C:25-29(b). The court must then find an FRO necessary for the plaintiff's protection. Silver, supra, 387 N.J. Super. at 127.

As relevant here, a person is guilty of simple assault if he or she "(1) [a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (2) [n]egligently causes bodily injury to another with a deadly weapon; or (3) [a]ttempts by physical menace to put another in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1(a)(1)-(3).

We are satisfied the record amply supports Judge Casale's credibility determinations, factual findings, and legal conclusion that defendant committed an act of domestic violence requiring the issuance of an FRO for plaintiff's protection. Contrary to the contentions raised on appeal, the record demonstrates defendant's aggressive conduct in plaintiff's bedroom was sufficient to find simple assault, as he attempted by physical menace to put plaintiff in fear of bodily harm. N.J.S.A. 2C:12-1(a)(3). Furthermore, we reject defendant's claim that he was unable to present evidence of plaintiff's mental state or the prior incident of domestic violence, as he testified with respect to both matters. Lastly, we decline to address defendant's claim that the court disregarded the parties' financial circumstances since defendant did not raise the issue below. See Rule 2:6-2.

We affirm substantially for the reasons expressed by the judge in his detailed and well-reasoned February 19, 2013 oral opinion.

Affirmed.