J.G. v. L.M.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

J.G.,

Plaintiff-Respondent,

v.

L.M.B.,

Defendant-Appellant.

___________________________

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1791-13.

J. Stewart Grad, attorney for appellant.

Bastarrika, Soto, Gonzalez & Somohano, LLP, attorneys for respondent (Erin L. Smith, on the brief).

PER CURIAM

Defendant L.M.B. appeals from an April 10, 2013 final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We affirm.

The parties married approximately one year prior to the entry of the FRO. On March 24, 2013, plaintiff filed a domestic violence complaint against defendant, alleging that earlier that day defendant grabbed her by the arm and threw her on the floor, bruising her knee. Plaintiff also alleged in the complaint that there was a prior history of domestic violence that included defendant "hit[ting] her, kick[ing] her, push[ing] her against the wall, [throwing] objects to her/cover[ing] her mouth to make her shut [up]." As a result of these allegations, plaintiff obtained a temporary restraining order and the court scheduled an FRO hearing.

On April 10, 2013, a judge conducted the FRO hearing. Plaintiff testified that, during the March 24, 2013 incident, defendant grabbed her with both hands and pushed her onto the floor, hurting her knee. According to plaintiff, defendant told her to get into his car, where he grabbed her by the neck with both hands, frightening her. Plaintiff's counsel asked about the most recent act of domestic violence before the March 24, 2013 incident. Defense counsel objected, arguing that there was no "report" regarding a prior act of domestic violence. The judge overruled the objection and offered defense counsel an adjournment to prepare for the testimony, but defense counsel never responded. Plaintiff then testified that in August 2012 defendant "became furious" at her and kicked her in the stomach. She also testified that on other occasions defendant threw her onto the floor, threw things at her, and twisted her hand.

Defendant testified that on the morning of March 24, 2013, plaintiff overreacted to a question he asked and began throwing things. Defendant stated that he "tried to calm her down by pretty much hugging her[, and] grabbed at her. And she overreacted, and she actually fell to the ground." Defendant testified that he grabbed plaintiff in the car because she tried to jump out. He denied ever hitting plaintiff, but did not testify about the August 2012 kicking incident.

The judge rendered an oral opinion and found that "[w]hat logically makes sense is [plaintiff's] version" of the incident. The judge concluded that defendant assaulted plaintiff by grabbing her and throwing her on the floor, that there was a past history of domestic violence, and that an FRO was necessary to protect plaintiff. The judge then entered the FRO.

On appeal, defendant argues that (1) the trial court violated his right to due process by allowing plaintiff to testify about prior acts of domestic violence and (2) the judge did not sufficiently address the second prong of the Silver1 analysis.

Trial court fact-finding is "binding on appeal when supported by adequate, substantial, [and] credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The trial court sees witnesses firsthand and "has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)) (internal quotation marks omitted). We give additional deference to factual findings of the family courts because they have special expertise, ibid., and we do not second-guess their exercise of sound discretion, Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

We first address defendant's due process argument. The complaint alleged there was a prior history of domestic violence that included, among other things, defendant kicking plaintiff. Although the complaint did not specify the date of this incident, we find that there was sufficient information on the face of the complaint to put defendant on notice that the incident could be raised at the FRO hearing, and for the judge to enter the FRO. See J.D. v. M.D.F., 207 N.J. 458, 478-79 (2011). Also, the judge offered to give an adjournment to allow defense counsel to prepare for the testimony, but defense counsel never responded, thereby impliedly declining the adjournment invitation.

We reject defendant's contention that the judge did not properly conduct the second prong of the Silver analysis, which requires the judge to determine whether a restraining order is necessary to protect the plaintiff from future acts or threats of violence.2 Silver, supra, 387 N.J. Super. at 126-27. It is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors 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." Silver, supra, 387 N.J. Super. at 127.

We conclude that the judge properly found that the FRO was necessary to protect plaintiff from immediate danger or prevent future harm. The judge found that there was a past history of domestic violence based on plaintiff's testimony about prior acts of domestic violence, including that defendant kicked her in the stomach in August 2012, and based on defendant's failure to contradict the testimony about this incident. These findings were supported by sufficient, credible evidence in the record.

Affirmed.

1 Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).

2 When determining whether to grant an FRO pursuant to the Act, the judge must make two determinations. Silver, supra, 387 N.J. Super. at 125-26. "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." Id. at 125. Here, defendant has not challenged the findings made by the judge under prong one of Silver. And we conclude that there is sufficient evidence in the record to demonstrate that defendant assaulted plaintiff by grabbing her, throwing her down, and injuring her.