C.J. v. D.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

C.J.,

Plaintiff-Respondent,

v.

D.K.,

Defendant-Appellant.

_____________________________

November 20, 2015

Submitted October 21, 2015 Decided

Before Judges Fuentes and Gilson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-580-14.

Joel M. Bacher, attorney for appellant.

C.J., respondent pro se.

PER CURIAM

Defendant appeals from a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A. 2C:33-4(b). We affirm.

The facts were established at trial where both parties testified, plaintiff was represented by counsel, and defendant was self-represented. The parties had been in a long-term relationship, had lived together for a number of years, and had two children together. Plaintiff also had another child from a prior relationship. Plaintiff testified that the relationship ended in June 2013, when defendant told plaintiff, together with the children, to leave the home they had been sharing in Ohio. During that incident, plaintiff testified that, as she was carrying the two younger children in her arms, defendant yelled at her to get out and hit her in the back of her head several times with his knuckles.

Thereafter, plaintiff fled Ohio and went to New York and later to New Jersey. While in New Jersey, plaintiff obtained a temporary restraining order alleging predicate acts of harassment and stalking that occurred in both Ohio and New Jersey. Plaintiff alleged that defendant had placed spyware software on her computer that allowed defendant to access and view her accounts. She testified that when she fled Ohio, she kept her location a secret from defendant because she feared that if defendant knew where she was, he would physically harm her and the children. Plaintiff went on to testify that, while she was in New Jersey, defendant sent her an email that included screenshots of comments plaintiff had left on a friend's Facebook page. According to plaintiff, at the time defendant sent that email, she had blocked defendant on Facebook. Plaintiff also testified that defendant sent her an email, again in New Jersey, in response to an anonymous Craigslist advertisement she posted for the northern New Jersey area. Plaintiff went on to testify that after she left defendant, she was staying at a shelter with the children and a man called the shelter asking about a woman and her children. Plaintiff believes the man was defendant and she testified she was afraid that if defendant located her, he would harm her and the children.

With regard to a history of domestic violence, plaintiff testified that she had a fear of defendant because he had previously physically harmed her. In her complaint, plaintiff alleged that defendant had punched her, strangled her, and threatened to kill her. Plaintiff also alleged that in 2011, she found an ax under the bed she shared with defendant. Plaintiff went on to state that she had fled Ohio because of constant verbal and physical abuse by defendant, including defendant at various times not allowing her and the children to eat.

At trial, defendant denied plaintiff's allegations. He testified that he knew plaintiff did not want him to know where she was staying, but he also testified that he had been looking for plaintiff and the children out of concern for the children and because he wanted to see his children.

Based on the evidence at trial, the judge found that defendant had committed the predicate act of harassment by offensively striking plaintiff with his knuckles. In making that finding, the judge found plaintiff's testimony to be credible. The judge did not find that defendant had engaged in stalking. The judge then found that plaintiff was in need of an FRO to protect her from future acts of domestic violence. Accordingly, the judge issued an FRO against defendant. Defendant now appeals.

Our scope of review is limited when considering an FRO issued by the Family Part following a bench trial. A trial court's findings are binding on appeal "when supported by adequate, substantial, credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). This deference is particularly appropriate where the evidence at trial is largely testimonial and hinges upon a court's ability to make assessments of credibility. Gnall v. Gnall, 222 N.J. 414, 428 (2015). We also keep in mind, the expertise of trial court judges, who routinely hear domestic violence cases in the Family Part. J.D. v. M.D.F., 207 N.J. 458, 482 (2011). Consequently, we will not disturb the "factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." S.D. v. M.J.R., 415 N.J. Super 417, 429 (App. Div. 2010) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).

When determining whether to grant an FRO under the PDVA, the judge must first determine whether the plaintiff has proven, by a preponderance of the evidence, that the defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). The judge must construe any such acts in light of the parties' history to better understand the totality of the circumstances of the relationship and to give context to otherwise ambiguous behavior. J.D., supra, 207 N.J. at 478; N.J.S.A. 2C:25-29(a)(1). Trial courts can consider evidence of "a defendant's prior abusive acts, regardless of whether those acts have been the subject of a domestic violence adjudication." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 574 (quoting Cesare, supra, 154 N.J. at 405). If a predicate offense is proven, the judge must then assess "whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." J.D., supra, 207 N.J. at 475-76 (quoting Silver, supra, 387 N.J. Super. at 127).

Plaintiff's allegations in this case fell under N.J.S.A. 2C:33-4(b), which provides that a person commits harassment "if, with purpose to harass another, he [s]ubjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so." Having reviewed the record, we find no basis to disagree with the fact-findings or legal conclusions of the trial court. The trial court found plaintiff to be credible. The trial court relied on plaintiff's testimony to find that defendant had repeatedly struck plaintiff in the back of her head with his knuckles while yelling at plaintiff to get out of their home. Moreover, when defendant struck plaintiff, she was carrying their children. Purposely striking someone in the back of the head under such circumstances can constitute harassment as an offensive touching. N.J.S.A. 2C:33-4(b); see also D.N. v. K.M., 429 N.J. Super. 592, 598 (App. Div. 2013), certif. denied, 216 N.J. 587 (2014).

On appeal, defendant, who is now represented by counsel, contends that the predicate act of harassment found by the trial judge was not identified in plaintiff's complaint. Thus, defendant argues that his due process rights were violated because he did not have proper notice and was not prepared to defend against that allegation. The record, however, establishes that defendant's argument is incorrect.

Plaintiff's domestic violence (DV) complaint did identify the incident that formed the basis for the finding of harassment. The DV complaint expressly identified "Harassment" as one of the alleged predicate acts. Moreover, the DV complaint stated: "[PLAINTIFF] FLED OHIO APP. 4MTHS AGO DUE TO DV" and "1.5 MOS AGO [DEFENDANT] PUNCHED [PLAINTIFF'S] HEAD AS HE TOLD [PLAINTIFF] TO LEAVE [WITH] KIDS." While the allegation of punching was set forth in a portion of the complaint that identified prior history of domestic violence, the allegation was in the complaint. Moreover, that allegation was linked to the present allegations by the assertion as to why plaintiff fled Ohio.

Just as importantly, defendant never informed the trial judge that he was not prepared to address plaintiff's allegations or that he needed more time to prepare. Indeed, defendant was given a full opportunity to present his defense at trial. See J.D., supra, 207 N.J. at 480. Defendant was allowed to cross-examine plaintiff and to testify in his own defense. Thus, the record does not disclose any due process violations.

Affirmed.