K.M.F. v. W.L.F.

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                           NOT FOR PUBLICATION WITHOUT THE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-3741-16T4

K.M.F.,

        Plaintiff-Respondent,

v.

W.L.F.,

     Defendant-Appellant.
_____________________________

              Submitted April 17, 2018 – Decided April 26, 2018

              Before Judges Reisner and Mayer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Burlington
              County, Docket No. FV-03-1605-17.

              Fuhrman & Edelman, attorneys for appellant
              (Ronald B. Edelman, on the brief).

              Dash Farrow, LLP, attorneys for respondent
              (Timothy S. Farrow, on the brief).

PER CURIAM

        Defendant     W.L.F.     appeals    from   an   April   6,   2017    final

restraining order (FRO) entered in favor of plaintiff K.M.F.,

pursuant      to   the    Prevention   of   Domestic    Violence     Act   (PDVA),


N.J.S.A. 2C:25-17 to -35.            We affirm.
                                      I

      The parties were going through a divorce at the time of the

FRO hearing.      At the hearing, plaintiff testified that on March

19, 2017, defendant was upset and loudly yelling at her over the

way   she    planned   to    divide   some      of   the    marital     possessions.

According to plaintiff, as she was walking toward the bathroom,

and defendant was heading toward her in the opposite direction,

he "took his shoulder and . . . slammed it onto mine . . . [l]ike

a   hockey   check."        Plaintiff     testified        that   the   assault   was

deliberate and not an accident.               The blow was painful and caused

her shoulder to ache.          Plaintiff testified that their daughter,

who was present at the time, witnessed the incident and was upset

by it.

      Plaintiff also described defendant's past history of domestic

violence, including two prior incidents in which he was physically

violent toward her.         Plaintiff further testified about defendant's

pattern of engaging in unpredictable angry outbursts, during which

he would tower over her and scream profane and obscene insults in

her face.      She testified that defendant's conduct made her a

"nervous wreck."       Plaintiff's mother testified that she witnessed

two of defendant's angry outbursts.

      Defendant    denied      hitting        plaintiff     with    his    shoulder,

claiming that the two of them bumped shoulders while passing each

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other.   He believed plaintiff "intentionally tried" to bump him.

He also denied hitting plaintiff on the prior occasions that she

described.   Defendant also denied using derogatory language toward

plaintiff.

     In an oral opinion, placed on the record immediately after

the hearing, the judge found plaintiff's testimony more credible

than defendant's testimony with respect to her claims of physical

and verbal harassment.   The judge found that defendant engaged in

"a regular course of conduct . . . that was in the nature of

harassment, both verbal and physical."    See 
N.J.S.A. 2C:33-4(b).

He also credited plaintiff's testimony that she was afraid of

defendant, and found that the situation within the family was

"dysfunctional."

                               II

     On this appeal, defendant contends that the trial court erred

in refusing to admit several police reports in evidence; refusing

to admit in evidence a proposed agreement to consent to the entry

of civil restraints; and in finding that defendant committed an

act of domestic violence against plaintiff.

     Defendant's first two arguments are without sufficient merit

to warrant discussion in a written opinion, beyond the following

comments.    R. 2:11-3(e)(1)(E).



                                   3                        A-3741-16T4
     We review a trial judge's evidentiary rulings for abuse of

discretion, and we find none here.   See Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co., 
202 N.J. 369, 383-84 (2010).    Both parties

were represented by counsel at the FRO hearing.     The trial court

permitted defendant's attorney to cross-examine plaintiff about

statements contained in certain police reports, but would not

allow defense counsel to introduce the reports in evidence.       The

trial court did not err in declining to admit the police reports

in evidence.   If properly authenticated, police reports may be

admitted in evidence as business records.    See N.J.R.E. 803(c)(6).

However, in this case, as the judge correctly ruled, the documents

were not authenticated, either by a witness or an authenticating

affidavit.

     The unsigned civil restraints agreement was not admissible

in evidence, because it was a proposed settlement of the FRO

application.   Under N.J.R.E. 408, a proposed settlement agreement

cannot be admitted as proof of the invalidity of a party's claim.

That was the purpose for which defendant offered the document, and

the judge properly exercised discretion in excluding it.

     In his third point, defendant argues that the judge's factual

findings are against the weight of the evidence, and there was

insufficient proof that an FRO was needed.    See Silver v. Silver,


387 N.J. Super. 112 (App. Div. 2006).    We cannot agree.     Having

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reviewed the record, we find no basis to disturb the judge's

credibility determinations, and his factual findings are supported

by substantial credible evidence.          See Cesare v. Cesare, 
154 N.J.
 394, 411-12 (1998).      Contrary to defendant's argument, the judge

properly found that defendant committed acts of domestic violence,

and   that   plaintiff   was   in   fear   of   defendant   and   needed   the

protection of an FRO.

      Affirmed.




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