C.R. v. J.R.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4936-15T3

C.R.,

        Plaintiff-Respondent,

v.

J.R.,

        Defendant-Appellant.

______________________________


              Submitted October 18, 2017 – Decided November 8, 2017

              Before Judges Alvarez and Currier.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part, Union
              County, Docket No. FV-20-1234-16.

              Hugo Villalobos, attorney for appellant.

              Lowenstein   Sandler   LLP,   attorneys   for
              respondent (Michael A. Kaplan, on the brief).

PER CURIAM
       Defendant J.R.1 appeals from a final restraining order (FRO)

entered against him.        After a review of the record and arguments

in light of the applicable legal principles, we affirm.

       Plaintiff    C.R.    applied   for    and   obtained    a   temporary

restraining order (TRO) on the grounds of harassment and assault

based upon events that occurred on February 29, 2016.

       The trial in this matter spanned over the course of several

days.    The testimony revealed that the parties were involved in a

long-term dating relationship.        Although they had broken off their

relationship several times through the years, they were still a

couple on the date of these events and defendant testified they

had plans on the day of the incident to go to city hall to apply

for a marriage license.

       Plaintiff testified that defendant phoned her at least fifty

times and sent her more than fifty text messages on February 29.

When    she   did   not   answer,   defendant   drove   to   her   workplace.

Plaintiff testified that as she walked out to the parking lot,

defendant began yelling at her.            She said he grabbed her neck,

pulled her hair, and took her purse and jacket.               Defendant then

dragged her towards his car, while he hit her in the head with his


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



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fist.   She also stated that he threw her to the ground and kicked

her.    Plaintiff's boss saw what was happening and called the

police.    Defendant left the scene.      Plaintiff testified several

times that she was afraid of defendant.

       Defendant   recounted   a   different   version    of   events.    He

testified that he went to pick plaintiff up at her workplace

because he wanted to speak with her.           He said that plaintiff

refused to speak with him and she punched him.           Defendant stated

that plaintiff continued to hit him, kicked the car, and broke off

the side-view mirror, throwing it to the ground.         Defendant denied

hitting, pushing, or throwing plaintiff to the ground.                 Both

parties described prior incidents when there had been physicality

between them.

       In an oral decision of June 6, 2016, the trial judge found

that plaintiff had satisfied her proofs as to the predicate act

of harassment, but not as to assault. He noted the great disparity

in the parties' testimony and commented "you both can't cause an

assault when you both engage freely into the fight."            The judge

determined that an FRO was necessary since the parties lived across

the street from each other and defendant had continued to harass

plaintiff through social media posts after the entry of the TRO.

       On appeal, defendant argues that plaintiff did not prove the

act of harassment or that she needed the protection of an FRO. He

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also contends that the postponement of the trial date to permit

plaintiff to amend her complaint violated his rights. We disagree

and affirm.

     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 harassment as defined by 
N.J.S.A. 2C:33-4.                 Silver v.

Silver, 
387 N.J. Super. 112, 125-26 (App. Div. 2006).              The finding

of a predicate act of domestic violence does not "automatically

mandate[]" the entry of an FRO, id. at 126-27, as the second prong

of the two-step analysis outlined in Silver must also be met,

"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 (1998).                    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.     Id. at 412.

     The    trial   judge   found   that     both   parties   were   generally

straightforward     in   their    respective    testimony,     although      each

lacked credibility in certain portions of their stories.              He found

plaintiff to be "slightly more credible than defendant."                   In his

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review of the phone calls, he stated: "fifty calls . . . on a

single day sort of screams harassment when someone's at work."                   He

found   there     was   no   purpose     to    the   continuous   calls   made   to

plaintiff's cell phone and workplace other than to harass her.                   We

are satisfied that the record fully supports the trial judge's

factual findings as to the predicate act of harassment.

     We are also 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.

     We    find     the      remainder    of     defendant's      arguments   lack

sufficient merit to warrant discussion in a written opinion.                     R.

2:11-3(e)(2).

     Affirmed.




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