P.E.O v. R.J

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                                NOT FOR PUBLICATION WITHOUT THE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-5354-18T1

P.E.O.,

          Plaintiff-Appellant,

v.

R.J.,

     Defendant- Respondent.
________________________

                    Argued telephonically April 22, 2020 –
                    Decided May 11, 2020

                    Before Judges Koblitz, Gooden Brown and Mawla.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FN-07-3008-19.

                    Celeste Fiore argued the cause for appellant (Argentino
                    Family Law & Child Advocacy, LLC, attorneys;
                    Celeste Fiore and Jodi Ann Argentino, on the brief).

                    Respondent has not filed a brief.

PER CURIAM
      Plaintiff, P.E.O., 1 appeals after trial from the June 28, 2019 denial of a

final restraining order (FRO), pursuant to the Prevention of Domestic Violence

Act (PDVA),  N.J.S.A. 2C:25-17 to -35. The trial court found that plaintiff's

wife, R.J., a black belt in martial arts and kickboxing instructor, assaulted her,

causing physical injuries, and also falsely imprisoned her. Nonetheless, the trial

court determined that a FRO was unnecessary to protect plaintiff from future

acts or threats of violence. We now reverse.

      The parties, who were together since 1996, married in Canada in October

2003. The two women had two children together using an anonymous sperm

donor. Defendant carried both children, and both parties are listed as the parents

on the children's birth certificates.

      In January 2019, defendant asked plaintiff for a divorce. Plaintiff testified

that "[t]here[] [had] been tension" between them, they "did not communicate

very well," and a pattern of name calling had developed. Plaintiff believed

defendant began a romantic relationship with her co-worker and kickboxing

instructor, however, defendant testified that he was only a "good friend." On

March 15, 2019, plaintiff called defendant's co-worker approximately seventy



1
  We use initials to protect the identity of victims of domestic violence and to
preserve the confidentiality of these proceedings. R. 1:38-3(d)(9) to -(10).
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times in hopes of making "it difficult for him [so] that he would leave

[defendant] alone."

      Five days later, plaintiff visited the co-worker's daughter's Instagram page

and commented below a post, "Why don't you ask your father why he's sleeping

with a married woman." About "three to four minutes" later, when she tried to

delete the comment, it was no longer there. Upon plaintiff arriving home from

work that night, defendant confronted her about the comment. Plaintiff walked

into the laundry room and defendant followed her in there. Plaintiff testified

defendant "had backed [her] up" into the ironing board and punched her in the

face and chest. Although plaintiff explained at trial that because she "had a

concussion . . . [she] ha[s] holes in [her] memory," she said defendant also put

her "hand on [plaintiff's] throat and said, something to the effect of [']I could

kill you['] or [']I would kill you. [']"

      When plaintiff told defendant that their son was standing behind them,

defendant left the laundry room, closing the door. Plaintiff tried to leave, but

defendant held the door shut. About "[thirty] seconds to a minute" later, plaintiff

was able to exit the laundry room and saw defendant gathering things together

for herself and the children to leave the home. Over plaintiff's objections,

defendant left the marital apartment with the children.


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      Defendant testified to a somewhat different incident. While she admitted

that she confronted plaintiff in the laundry room about the Instagram comment

and held the door shut, defendant testified that she did not punch plaintiff at that

time. Rather, defendant claimed that while she was collecting items for herself

and the children from the bedroom, she heard plaintiff tell a mutual friend over

the phone that defendant was being "violent" and "aggressive." Defendant went

towards plaintiff to try to speak into the phone, but as plaintiff moved away,

defendant explained she saw plaintiff's "hand coming up towards [her]," so she

"ducked out of the way and . . . punched" plaintiff in self-defense. Defendant

testified, "I was shocked. I, also, couldn't believe that I would do something

like that. I don't do things like that. I am not a violent person." Plaintiff then

pushed defendant, who sustained bruising.

      After defendant left, the police responded to plaintiff's call at about 10:00

p.m. Plaintiff told the police what defendant did and explained she "was not

concerned . . . [defendant] would harm the children."         She did not seek a

temporary restraining order (TRO) at that time because she did not want

defendant to be arrested in front of the children.

      Plaintiff had redness and a cut on her chin the evening of the incident.

The next day, she visited an urgent care but was directed to go to the emergency


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room. Plaintiff's hospital discharge summary explained that she might have a

concussion. She testified that in the days following the incident, she "had

headaches and pain . . . around [her] eye, [and her] cheek and had difficulty

concentrating and completing [her] work."

      Plaintiff vacated the marital apartment and stayed in a hotel for two weeks

with her father. Whenever plaintiff visited the children, she asked her father to

accompany her because she "was afraid that [she] would be hurt again." On

March 30, 2019, during one of plaintiff's prearranged visits, defendant texted

plaintiff to "[s]top milling the fuck around and leave" the apartment and called

plaintiff a "piece of sh[i]t." Two days later, plaintiff amended her police report

to include that she had "a contusion under her right eye and on her chest." The

attending officer asked plaintiff whether she wanted to file a TRO, but plaintiff

declined to do so.

      Plaintiff testified that because she was still afraid of defendant, and her

father could not be with her forever, she spoke to a domestic violence agency

and realized "what [she] needed to do for [her]self was to file for the restraining

order." On April 8, 2019, plaintiff obtained a TRO against defendant, alleging

defendant subjected her to assault, terroristic threats, criminal restraint, false

imprisonment and harassment. The FRO hearing occurred over two days. The


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court heard from plaintiff, defendant and the police officer who responded to

plaintiff's call on the night of the incident. Plaintiff entered into evidence

photographs depicting her injuries, spanning from the date of the incident,

March 20, to March 28, 2019. Defendant also presented photographs of the

bruising on her forearm sustained from plaintiff shoving her after being hit.

      On June 28, 2019, while the court was delivering its oral opinion, plaintiff

suffered a panic attack and a nosebleed, requiring medical attention. When the

proceeding resumed, plaintiff's counsel unsuccessfully asked for an adjournment

until the next business day because plaintiff was no longer present. Although

the court found defendant assaulted and falsely imprisoned plaintiff, the FRO

was denied.

      "We have a strictly limited standard of review from the fact-findings of

the Family Part judge." R.L.U. v. J.P.,  457 N.J. Super. 129, 134 (App. Div.

2018) (quoting N.J. Div. of Youth & Family Servs. v. I.H.C.,  415 N.J. Super.
 551, 577 (App. Div. 2010)). Because a Family Part judge "possess[es] special

expertise in the field of domestic relations," we defer to those factual findings.

Cesare v. Cesare,  154 N.J. 394, 412-13 (1998). Furthermore, we defer because

Family Part judges have the "opportunity to make first-hand credibility

judgments about the witnesses who appeared on the stand." R.L.U., 457 N.J.


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                                         6 Super. at 134.     Therefore, when considering a FRO we "grant substantial

deference to the trial court's findings of fact and the legal conclusions based

upon those findings." D.N. v. K.M.,  429 N.J. Super. 592, 596 (App. Div. 2013).

        We may, however, disturb the factual findings and legal conclusions of

the trial court if 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." Cesare,  154 N.J. at 412 (quoting Rova

Farms Resort, Inc. v. Inv'rs Ins. Co.,  65 N.J. 474, 484 (1974)). Questions of law

are reviewed de novo. R.L.U.,  457 N.J. Super. at 134.

        Plaintiff argues that because the trial court found defendant had

committed physically violent predicate acts of domestic violence, a FRO should

have been entered as a matter of law. Relying upon A.M.C. v. P.B.,  447 N.J.

Super. 402, 417 (App Div. 2016), she asserts analysis of "the second prong of

Silver[2] is not even necessary in light of a violent predicate act."

        The PDVA "is intended to assist those who are truly the victims of

domestic violence." Silver,  387 N.J. Super. at 124 (quoting Kamen v. Egan,  322 N.J. Super. 222, 229 (App. Div. 1999)). When deciding whether to grant a FRO,

the trial court has a "two-fold" task. Id. at 125. A court must first determine


2
    Silver v. Silver,  387 N.J. Super. 112, 125-27 (App. Div. 2006).
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whether the plaintiff can demonstrate by a preponderance of the evidence that

the defendant has committed a predicate act of violence under  N.J.S.A. 2C:25-

19(a). Ibid.

      The court must then determine "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." Id. at 127. The court should consider, but is not limited to six factors,

of which four are relevant here:

               (1) The previous history of domestic violence between
               the plaintiff and defendant, including threats,
               harassment and physical abuse;

               (2) The existence of immediate danger to person or
               property;

               (3) The financial circumstances of the plaintiff and
               defendant;

               (4) The best interests of the victim and any child

               [ N.J.S.A. 2C:25-29(a)(1) to -(4).]

      Of the five acts of domestic violence plaintiff alleged, the court found that

plaintiff established by a preponderance of the evidence the predicate acts of

assault,  N.J.S.A. 2C:12-1(a)(1), and false imprisonment,  N.J.S.A. 2C:13-3.

Assault occurs when a person "[a]ttempts to cause or purposely, knowingly or


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recklessly causes bodily injury to another."  N.J.S.A. 2C:12-1(a)(1). "Bodily

injury means physical pain, illness or any impairment of physical condition."

 N.J.S.A. 2C:11-1(a). False imprisonment occurs when a person "knowingly

restrains another unlawfully so as to interfere substantially with his [or her]

liberty."  N.J.S.A. 2C:13-3. The court emphasized that defendant admitted to

punching plaintiff and that plaintiff "produced pictures which show[ed] redness

on her face, bruising under her eye and bruising on her chest."

      "When the predicate act is an offense that inherently involves the use of

physical force and violence, the decision to issue a FRO 'is most often

perfunctory and self-evident.'" A.M.C.,  447 N.J. Super. at 417 (quoting Silver,

 387 N.J. Super. at 127).

      In discussing the  N.J.S.A. 2C:25-29(a) factors, the court reasoned that a

FRO was not necessary to protect plaintiff. The court noted that no history of

domestic abuse existed. Although after defendant told plaintiff she wanted a

divorce, a "breakdown of the relationship" began with the parties calling each

other names, defendant giving plaintiff "the silent treatment," and plaintiff

calling defendant's co-worker and commenting under his daughter's Instagram

post, the court emphasized that plaintiff was the party who caused "the

escalation of a certain type of behavior."


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       The court found that plaintiff was in a stronger financial position than

defendant. Defendant moved out of state because she could no longer afford to

live in New Jersey and, therefore, "had to relinquish residential custody of the

. . . children."

       Finding that "other [than] . . . plaintiff saying that she's afraid, there [was]

nothing in the record which [gave] this [c]ourt reason to conclude that . . .

defendant ha[d] exerted any power or control over . . . plaintiff, . . . or has the

means or ability to do so in the future," the court denied the FRO.

       In A.M.C. we reversed the denial of a FRO where the trial court found the

defendant committed the predicate offense of assault, but nonetheless concluded

that a FRO was unnecessary to protect the plaintiff. Id. at 422-23. There the

trial court determined the plaintiff did not need ongoing protection because:

(1) the defendant, who was unaware that a TRO was issued against him, had no

desire to have a continuing relationship with the plaintiff and did not try to

communicate with her after she left the marital home; (2) the parties did not

have any children together; and (3) the plaintiff established only two instances

of domestic violence, despite alleging many other, during the short nature of the

parties' marriage. Id. at 411–12.




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       In reversing the trial court's decision, we found the parties' childlessness

should not adversely affect the plaintiff's entitlement to injunctive relief. Id. at

415. We also found the defendant's conduct after the plaintiff left the marital

home and the brevity of the parties' marriage were not relevant in deciding

whether a FRO should be issued under the second prong of Silver. Id. at 416.

The trial court's findings were "based more on speculation than evidence in the

record" as there was "no rational basis for the [court] to use the duration of the

marriage as a reliable predictor of [the] defendant's future conduct with [the]

plaintiff" and the court "minimized one of the principal concerns that drove our

analysis in Silver: [w]hether the predicate offense involved a violent act." Id. at

416.

       Here, the parties had a lengthy relationship and two young children

together, necessitating further contact between the parties. The children made

the need for protection stronger and potential hazards of further violence more

serious.

       As in A.M.C., the trial court minimized the violent nature of defendant's

actions. While it acknowledged that defendant "[c]ertainly" caused plaintiff

injuries, the court explained it did "not find [plaintiff's] testimony credible as it

relates to how the injuries occurred."       The court noted that since plaintiff


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repeatedly testified that she suffered from memory loss due to her concussion,

"her memory [was] not exactly the most reliable."           Although the court

downplayed plaintiff's credibility and stated that defendant had been provoked

prior to punching plaintiff, it found that defendant had committed two acts of

domestic violence, including an assault that caused bruising and a head injury.

      The court over-emphasized the lack of prior physical abuse between the

parties.   Although "domestic violence is ordinarily more than an isolated

aberrant act," id. at 124 (quoting Corrente v. Corrente,  281 N.J. Super. 243, 248

(App. Div. 1995)), and a history or pattern of abuse is a "classic characteristic

of domestic violence," an order of protection may be granted "in the absence of

such a pattern where there is 'one sufficiently egregious action,'" id. at 128

(quoting Cesare,  154 N.J. at 402). The court primarily denied the FRO because

no history of domestic abuse existed. Although we defer to a family court's

findings and credibility judgments, the court's denial of the FRO in these

circumstances is contrary to the interests of justice and the purpose of the PDVA.

Neither plaintiff's posting on Instagram, nor any other non-violent act justified

defendant's physical violence.

      Reversed. We remand only for the entry of a final restraining order and

do not retain jurisdiction.


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