V.H.,1 v. J.X

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                                NOT FOR PUBLICATION WITHOUT THE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-4005-18T2

V.H.,1

          Plaintiff-Respondent,

v.

J.X.,

          Defendant-Appellant.


                   Argued October 8, 2020 - Decided November 12, 2020

                   Before Judges Currier and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Bergen County,
                   Docket No. FV-02-1699-19.

                   J.X., appellant argued the cause pro se.

                   Scott D. Danaher argued the cause for respondent
                   (Snyder Sarno D'Aniello Maceri & Da Costa, LLC,
                   attorneys; Scott D. Danaher, on the brief).

PER CURIAM

1
  We use initials to preserve the confidentiality of court records concerning
domestic violence. R. 1:38-3(d)(9).
      Defendant appeals from the final restraining order (FRO) entered against

him under the Prevention of Domestic Violence Act (PDVA),  N.J.S.A. 2C:25-

17 to -35. After a review of the respective contentions and the record, in light

of the applicable principles of law, we affirm.

      We derive the following facts from the parties' testimony at trial. The

parties were going through divorce proceedings at the time of these events but

still lived together. They have two young children.

      On the night of these events, in March 2019, the parties were arguing

about the preparation of tax returns for plaintiff's business. Plaintiff stated that

defendant slapped her on the face during the argument. She also testified that

when her mother came downstairs and got between the parties, defendant also

struck her. Plaintiff's mother confirmed in her testimony that she was struck by

defendant. Plaintiff denied striking her husband. Plaintiff said defendant had

struck her on prior occasions and she is afraid of him.

      Although defendant agreed he and plaintiff were arguing about a business

matter, he disputed that he struck her during the encounter. Instead, he testified

plaintiff slapped him across the face during the argument. He also stated that as

he walked away, plaintiff hit him on the back of his neck. Defendant denied




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striking plaintiff's mother.   Both parties called the police.    Defendant was

arrested and charged with assault,  N.J.S.A. 2C:12-1(a).

      During the FRO trial, both parties testified regarding a 2015 incident. On

that occasion, plaintiff said defendant became angry and threw their child's

highchair and a toy chair onto the floor. Plaintiff stated she and the child were

injured during the incident. The police were called. Although plaintiff obtained

a temporary restraining order (TRO), she later dismissed it.

      In contrast, defendant contended plaintiff was the aggressor of that

incident. He said she jumped on top of him while he was sitting on the couch

and he was defending himself from the attack.         During cross-examination,

plaintiff admitted that both parties were slapping each other and that she bit

defendant while he was restraining her wrists.

      Plaintiff obtained a TRO the day following the March 2019 incident.

During the April 8, 2019 trial, both parties were represented by counsel.

Plaintiff's mother testified with the use of an interpreter. Neither of the parties

nor their counsel requested the use of the interpreter during their respective

testimony.




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                                        3
      In a well-reasoned oral decision following the close of testimony, Judge

Terry Paul Bottinelli granted plaintiff a FRO. In making credibility findings,

Judge Bottinelli stated:

            I was watching carefully the testimony that was given.
            I am satisfied that the testimony of the mother-in-law
            was accurate. I do not believe that she was making this
            up. She was very clear with what happened between
            the two of them with the arguments that developed
            between he, she, the husband and the wife, that she
            came downstairs with the children, that when she tried
            to intervene with this, that she was struck on the right
            side of her head.

            Similarly, with V.H., I'm satisfied that when she was
            asked a question, she answered the questions clearly
            and succinctly. She did not embellish, although she
            could have. She testified quite forthrightly that, during
            the course of this incident, that her husband had struck
            her on the right-hand side of her face. She testified that
            the police came and, as a result of an investigation by
            the police, there were charges that were lodged not
            against her but against her husband.

            J.X. testified that he never did anything, he didn't strike
            his wife, he didn't strike his mother-in-law. He testified
            that this incident is all as a result of the filing of a
            complaint . . . for divorce.

            ....

            He said that it was she who slapped him and it was he
            who called the police.

            On his cross-examination, it seemed that he was
            wandering a bit with regard to his testimony. He

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            testified that it's his belief that when there are claims
            that are made by the husbands, that the law does not
            protect husbands. The law [as defendant misperceives
            it] goes and protects the wives.

            I find that [plaintiff] was credible in her testimony. I
            do not find that the husband was particularly credible.
            He was argumentative with regard to questions that
            were being asked and I find that the wife was more
            credible as far as what transpired that evening, as well
            as that which happened with the mother-in-law.

      Judge Bottinelli found defendant had struck plaintiff and her mother and,

therefore, had established a predicate act of assault. In addressing plaintiff's

need for a FRO, the judge found there was a need to protect plaintiff from further

acts of domestic violence. He noted she had previously received a TRO and

dismissed it when defendant promised he would not hurt her again. Therefore,

the court granted the FRO.

      On appeal, defendant contends the trial court erred in issuing a FRO and

was mistaken in not identifying inconsistencies in the testimony and in his

interpretation of the testimony. Defendant also asserts the court erred in its

ruling on certain objections.    We disagree and affirm substantially for the

reasons expressed in Judge Bottinelli's thoughtful decision.

      Our scope of review of Family Part orders is limited. Cesare v. Cesare,

 154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's


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findings of fact because of its special expertise in family matters. Id. at 413.

Deference is especially appropriate in bench trials when the evidence is "largely

testimonial and involves questions of credibility." Id. at 412. A trial judge who

observes witnesses and listens to their testimony is in the best position to "make

first-hand credibility judgments about the witnesses who appear on the stand."

N.J. Div. of Youth & Family Servs. v. E.P.,  196 N.J. 88, 104 (2008).

      We are satisfied the totality of the circumstances supports Judge

Bottinelli's findings that plaintiff established a predicate act of assault and there

was sufficient evidence that a FRO was necessary to protect her from future acts

of assault and domestic violence. See Silver v. Silver,  387 N.J. Super. 112, 127

(App. Div. 2006). Although defendant is correct that plaintiff initially said she

was not afraid to have defendant in the home, she later stated she was mistaken

and that she was "afraid" and "scared." Having 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,  154 N.J. at 411-12.

      All other points raised by defendant lack sufficient merit to warrant

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




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Affirmed.




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