D.J. v. S.J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

D.J.,

Plaintiff-Respondent,

v.

S.J.,

Defendant-Appellant.

__________________________________

December 21, 2015

Submitted November 10, 2015 Decided

Before Judges Espinosa and Currier.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-23-15.

Weinberger Law Group, LLC, attorneys for appellant (Jessica Ragno Sprague, on the briefs).

Dalena & Bosch, LLC, attorneys for respondent (Jessica A. Bosch, on the brief).

PER CURIAM

Defendant S.J. (Sam)1 appeals from a final restraining order entered against him on the grounds of assault. We affirm.

Plaintiff D.J. (Donna) filed for and obtained a temporary restraining order on the grounds of assault and harassment on July 3, 2014, based upon events that had occurred on June 18. The parties were separated at the time with civil restraints in place between them and were involved in a contentious divorce.

Trial was held over the course of three days. In addition to her own testimony and a play-back of the 9-1-1 call, Donna presented four other witnesses. She testified that when she arrived home on June 18, Sam was there cleaning up water from a leak in the basement. Although a real estate agent had emailed both parties alerting them to the leak, and Sam had replied that he was coming to the home to take care of the leak himself, Donna was unaware of the emails and was caught by surprise that he was in the home. She described that Sam grabbed her arm as she ran up the stairs away from him, and struck her with the mop he had been using in the basement. She said the mop hit her on her back underneath her head. Although Donna called 9-1-1 that evening and spoke to the responding police officer, she did not tell the police about the assault nor request a restraining order. She explained that the parties' daughter was graduating middle school in several days and she wanted Sam to be able to attend the event. Donna testified that Sam had been physically abusive to her throughout their twenty-year marriage. Although she had received a temporary restraining order two months earlier, she had consented to a dismissal and instead entered into civil restraints.

Lieutenant Edward Noonan of the Chester Police Department testified that when he arrived at the residence he met Donna in the garage. She explained that although they were separated, Sam was allowed at the residence for parenting time. Donna stated she would leave when he was to be present in the home. The officer also spoke with Sam who advised that he was there to clean up a water leak and that he had given Donna plenty of notice as to his arrival. Noonan reported that "both confirmed there was no dispute and nothing that would have constituted a domestic violence issue."

Noonan described Donna as being calm, but upset that Sam was at the house. He noted there was water all over the floor of the basement and Sam was cleaning it up with a mop and bucket. The officer did not observe any bruises on Donna.

On June 26, 2014, Patrolman Michael Henry was on duty at the Chester Police Department headquarters when Donna came in to report that she had been physically assaulted by Sam on June 18. She told him that she did not report the assault that night because she did not want Sam to be arrested. Donna further explained how she had put on a long sleeve shirt prior to the officers' arrival to hide marks and bruises on her body, but now wished the bruises to be documented and photographed. Donna did not request a restraining order.

Denise Newkirk, the police secretary, took photographs of the bruises on Donna, who said that she had been hit with a stick Sam had picked up at the bottom of the stairs. Newkirk described the bruises on her left arm and upper back as purple and black.

Lastly, Sam testified that after he received an email from the realtor he had called a plumber, whom he expected to meet at the house. He was cleaning up the water in the basement, while giving his college-aged son some instructions when Donna began screaming that she intended to call the police if he did not leave. Sam stated that he was attempting to drain the water when a police officer came into the basement to question him. According to Sam, the officer said Donna was very upset, so Sam suggested she leave for a while so he could finish cleaning up and leave the house. Sam denied ever being alone in the basement with his wife, or striking her with a mop.

In an oral decision on August 28, the family part judge did not find the necessary proofs for the act of harassment. As to simple assault, he stated, "we have here some physical evidence that I must consider, and that is the pictures, which do clearly show bruising on the . . . plaintiff." The judge noted that Donna was emotional and felt she exaggerated parts of her testimony. He concluded, however, that there was no explanation for the bruises other than Donna's story. Although he found Sam to be forthright in most aspects of his testimony, he nevertheless found that "[t]here is no testimony, absolutely nothing, to indicate that she did it to herself." Therefore, the judge concluded that the bruises shown on Donna's body satisfied the requirements of simple assault. He determined that the entry of a final restraining order (FRO) was necessary, noting the fear expressed by Donna and all of the "back and forth" that had taken place.

On appeal, Sam argues that the finding of domestic violence was not supported by sufficient credible facts, and the judge failed to make the analysis required by Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), to determine whether an FRO was an appropriate remedy.

We turn to Sam's contentions with respect to the merits of the decision. Before entering an FRO, a trial judge must find, by a preponderance of the evidence, that a defendant engaged in conduct that would fit the definition of one or more criminal statutes, including assault as defined by N.J.S.A. 2C:12-1. Silver, supra, 387 N.J. Super. at 125-26. Sam contends that there was no factual basis for the trial judge's finding that his conduct amounted to assault.

Finally, Sam argues that the trial judge should not have entered the FRO because it was not warranted under the circumstances. He correctly points out that a finding of a predicate act of domestic violence does not "automatically mandate" the entry of an FRO. Id. at 126-27. He specifically contends that the trial judge erred with respect to the second prong of the two-step analysis outlined in Silver, "whether the court should enter a restraining order that provides protection for the victim." Id. at 126.

Our scope of review of the trial judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1988). We are generally bound by the trial judge's findings of fact "when supported by adequate, substantial, credible evidence." Id. at 411-12. This is especially true when questions of credibility are involved. We are satisfied that the trial judge's factual findings are fully supported by the record, including his decision to find the pictures of bruising on Donna's body to be undisputed corroborating evidence. We find no error in the judge's conclusion that she was the victim of a simple assault.

We find no basis to set aside the FRO entered in this case. As already noted, the trial judge's findings were supported by the record, including his specific finding that Sam assaulted Donna. There had been numerous previous interactions with the police department and issues with parenting time involving the parties' daughter as well as the entry of civil restraints. We are satisfied that the judge had a sufficient basis to conclude that an FRO was appropriate and necessary in this case. Given the particular expertise of family part judges, it is not our place to second-guess an exercise of discretion to enter an FRO when supported by "adequate, substantial, credible evidence," as was this decision. Id. at 412.

Affirmed.

1 We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.