A.S. v. R.S

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0942-20

A.S.,1

Plaintiff-Respondent,

R.S.,

Defendant-Appellant.
_________________________

Submitted December 6, 2021 – Decided December 20, 2021

Before Judges Sumners and Vernoia.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FV-20-1405-20.

Lubiner, Schmidt & Palumbo, LLC, attorneys for
appellant (Todd D. Palumbo and John E. Jenkins, on
the briefs).

Thomas F. Verrastro, attorney for respondent.

1
We use initials because the names of victims and alleged victims of domestic
violence are excluded from public access under Rule 1:38-3(c)(12).
PER CURIAM

Defendant R.S. appeals from an October 23, 2020 final domestic violence

restraining order (FRO) entered in favor of his twenty-one-year-old daughter,

plaintiff A.S., pursuant to the Prevention of Domestic Violence Act (PDVA),

N.J.S.A. 2C:25-17 to -35. The Family Part entered the FRO following a trial

and its determination defendant committed the predicate act of simple assault,

N.J.S.A. 2C:12-1, under the PDVA, see N.J.S.A. 2C:25-19(a)(2), and an FRO

was required to protect plaintiff from future acts of domestic violence.

On appeal, defendant does not dispute the court's determination he

committed the predicate act of simple assault. He argues the FRO should be

reversed because the evidence does not support the court's determination an FRO

is necessary to protect plaintiff from future acts of domestic violence.

Unpersuaded by defendant's argument, we affirm.

During the two-day trial, plaintiff offered her version of the May 13, 2020

incident that gave rise to her complaint for an FRO. Plaintiff testified she was

home from college and became involved in an argument with defendant. During

the argument, defendant demanded that plaintiff give him her cellphone. When

she retreated into the kitchen with the phone, defendant followed her. Plaintiff

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moved through the kitchen and onto a landing for the steps leading to the

basement. Defendant entered the kitchen, picked up a plastic step stool, and

threw it at plaintiff. The step stool struck plaintiff in the stomach.

Plaintiff went into the basement, and defendant continued following her.

Plaintiff testified she could not leave the basement because there were plastic

storage bins on one side of her, a barbell set on the other, and defendant stood

in front of her. Plaintiff explained defendant "was throwing things at [her]" and

she "had [her] hands over [her] head just trying to protect" herself. Defendant

threw a plastic storage bin at plaintiff, and, after it shattered, he threw shards of

plastic from the bin at her. Plaintiff attempted to cover her face, holding her

wallet and keys over her head, and clenching her arms and hands in front of her

body. The shards of plastic defendant threw at plaintiff struck her. While

defendant continued yelling "at the top of his lungs" to "give him [her]

cellphone," he "hit[] [her] on the head with his palm" and pulled her "hair

rotating [her head] back and forth," causing her eye to strike the barbell set.

Defendant then "ripped" the wallet and keys from plaintiff's hands, and left the

basement. Plaintiff identified photos depicting bruises to her eye, rib cage, and

her thigh that she attributed to defendant's actions during the incident.

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Plaintiff also testified concerning prior acts of domestic violence. When

she was a sophomore in high school, defendant told plaintiff to sit on the floor,

and that if she spoke, he would hit her in the head. Defendant struck her in the

head "multiple times" after she spoke. In 2018, plaintiff received text messages

from defendant in which he said, "I want to smack you across the face if that's

the way you want to fight back," and "I want to smash you through a wall right

now." 2 In December 2019, sixth months before the May 13, 2020 incident,

plaintiff and defendant argued during a car ride, and defendant accelerated the

vehicle and threatened to crash it into a pole. Additionally, during one occasion

while she was in college, defendant struck plaintiff with his right hand above

her shoulder during an argument while defendant drove her in a car. While

plaintiff was in college, defendant also threatened to "beat the crap out of" her

a least a few times a year.

Defendant denied all the alleged prior acts of domestic violence and he

offered a different version of the May 13, 2020 incident. He acknowledged he

argued with plaintiff, raised his voice, and used foul language throughout the

incident. He asserted that he asked plaintiff to give him her cellphone, she

2
The text messages were admitted in evidence but are not included in the record
on appeal. Our description of the content of the text messages is based on the
plaintiff's unrefuted trial testimony.
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refused, and he acted out of "frustration" because plaintiff refused to give him

her phone. Defendant testified he followed plaintiff from the living room, where

he first told her to give him the phone, into the kitchen in order to obtain the

phone. He denied throwing the plastic step stool at her, but he admitted kicking

it "hard" "out of frustration" with plaintiff after he entered the kitchen. He

testified that after he kicked the stool, it went toward the landing. Defendant

denied he saw plaintiff on the landing at that time and that the stool hit her.

Defendant further acknowledged following plaintiff into the basement,

continuing his demands for the phone. Defendant testified that he repeatedly

told plaintiff, "I am not here to beat the crap out of you. I just want the phone."

He admitted he threw a plastic storage bin that broke into pieces when it struck

the barbell set located near plaintiff. He denied throwing the bin at plaintiff.

Defendant testified he picked up a large piece of the broken bin and struck it

repeatedly on the barbell set, causing it to shatter into smaller pieces. According

to defendant, this was all done while he continued to insist, in a raised voice,

that plaintiff turn over her phone. Defendant explained that he finally "pried"

the phone out of plaintiff's hands and then left the basement. He admitted his

hands may have become tangled in her hair when he did so.

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In its decision from the bench, the court "found [plaintiff's] testimony to

be more credible than [defendant's] testimony." The court further found:

defendant was "angry" and "very frustrated" during the incident; he threatened

to "beat the crap out of" plaintiff; he either kicked or threw the plastic stool in

the direction of the landing despite knowing plaintiff was on the landing; and he

threw the plastic storage bin at her, and, "in his rage" picked up a piece of the

bin and "bang[ed] it against the barbell set" with the pieces hitting plaintiff as

she was "huddled down . . . right there." The court also accepted plaintiff's

testimony that as she "cowered in front of" defendant, he grabbed her hair and

caused her to hit her head, before prying the items from her hand and leaving

the basement. Based on those findings, and the court's determination the injuries

depicted in the photographs entered in evidence were sustained during the

incident, the court found defendant committed the predicate act of simple assault

through knowing and reckless conduct. See N.J.S.A. 2C:12-1(a)(1).3

3
Plaintiff's complaint also alleged defendant committed the predicate act of
harassment. N.J.S.A. 2C:33-4(a). It appears plaintiff did not pursue the claim
at trial, and the court did not make any findings on the claim. Plaintiff neither
cross-appealed from the lack of a determination on the claim nor argues on
appeal the court erred by not addressing it. We therefore do not consider the
claim on appeal.
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The court accepted as credible plaintiff's testimony concerning the prior

incidents of domestic violence, finding defendant previously hit and threatened

plaintiff with violence. The court determined there was a need for a restraining

order to protect plaintiff from future acts of domestic violence under the

standard established in Silver v. Silver, 387 N.J. 112, 125-27 (App. Div. 2006),

explaining:

there is a previous history of domestic violence. And
the existence of immediate danger to person or property
based on the relationship of father to child. There is
always going to be this connection, even if she's not
living in the house. They are parent to child. And there
is the continued possibility. . . that they would be back
together . . . [a]nd there is the possibility based on the
history that . . . that [plaintiff] . . . could be placed in
immediate danger . . . As for financial circumstances, I
don’t believe . . . they exist at this time. I do believe
that [defendant] did have financial power over
[plaintiff] at the time even though college had been paid
for. But he provided a roof over her head, the car, the
cell phone. And that was used here, at least in this case,
over the . . . plaintiff. But at this point she is out of the
home and no longer will be requiring his financial
assistance. But . . . there were in this circumstance
clearly the financial circumstances did take a part in
that. And there's no custody or children or other orders
of protection.

The court concluded a "restraining order is necessary to protect the victim

from this danger repeating itself," and entered the FRO. This appeal followed.

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II.

"We accord substantial deference to Family Part judges, who routinely

hear domestic violence cases and are 'specially trained to detect the difference

between domestic violence and more ordinary differences that arise between

couples.'" C.C. v. J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020) (quoting

J.D. v. M.D.F., 207 N.J. 458, 482 (2011)). "[D]eference is especially

appropriate 'when the evidence is largely testimonial and involves questions of

credibility.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting

Cesare v. Cesare, 154 N.J. 394, 412 (1998)). We will "not disturb the 'factual

findings and legal conclusions of the trial [court] unless . . . 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. Invs. Ins. of Am., 65 N.J.
474, 484 (1974)). "[A] 'trial [court's] findings are not entitled to that same

degree of deference if they are based upon a misunderstanding of the applicable

legal principles.'" R.G. v. R.G., 449 N.J. Super. 208, 218 (App. Div. 2017)

(quoting N.T.B. v. D.D.B., 442 N.J. Super. 205, 215-16 (App. Div. 2015)).

To properly enter a FRO under the PDVA, a trial court must make findings

in accordance with the two-prong analysis established in Silver, 387 N.J. at 125-

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27. The court must first "determine whether the plaintiff proved by a

preponderance of the credible evidence" that the defendant committed "one or

more of the predicate acts" of domestic violence set forth in N.J.S.A. 2C:25-

19(a). Id. at 125. Second, if the court finds plaintiff proved the defendant

committed one or more predicate acts of domestic violence, it must then

determine whether it "should enter a restraining order that provides protection

for the victim." Id. at 126.

As noted, defendant does not challenge the court's determination he

committed the predicate act of simple assault, N.J.S.A. 2C:12-1(a)(1), and

plaintiff satisfied her burden under Silver's first prong. Defendant claims only

that the court erroneously determined plaintiff established by a preponderance

of the evidence that an FRO is necessary to "protect [plaintiff] from an

immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127.

The commission of one of the predicate acts of domestic violence set forth

in N.J.S.A. 2C:25-19(a) does not, on its own, "automatically . . . warrant the

issuance of a domestic violence order." Corrente v. Corrente, 281 N.J. Super.
243, 248 (App. Div. 1995). Where a court determines a defendant committed a

predicate act of domestic violence, it must then consider the factors enumerated

in N.J.S.A. 2C:25-29(a)(1) to (6) to determine whether an FRO is necessary "to

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protect the victim from an immediate danger or to prevent further abuse." Silver,

387 N.J. Super. at 125-27; see also A.M.C. v. P.B., 447 N.J. Super. 402, 414

(App. Div. 2016). A court should consider "[t]he nonexclusive statutory factors

[in N.J.S.A. 2C:25-29(a)(1) to (6),] includ[ing] the 'previous history of domestic

violence between the plaintiff and defendant, including threats, harassment and

physical abuse,' the 'existence of immediate danger to person or property,' and

the 'best interests of the victim and any child.'" D.D.B., 442 N.J. Super. at 223

(quoting N.J.S.A. 2C:25-29(a)(1)-(2), (4)). Nonetheless, we have held that

[w]hen the predicate act is an offense that inherently
involves the use of physical force and violence, the
decision to issue an FRO "is most often perfunctory and
self-evident." But even when the predicate act does not
involve physical violence, the trial court must still
evaluate the factors in N.J.S.A. 2C:25-29(a)(1) to -(6)
to determine whether an FRO is warranted to protect
the victim from an immediate danger or to prevent
further abuse.

[A.M.C., 447 N.J. Super. at 417 (internal citations
omitted) (quoting Silver, 387 N.J. Super. at 127).]

Contrary to defendant's contention, the court correctly applied these

principles in determining an FRO is necessary to protect plaintiff from futu re

acts of domestic violence. In the first instance, the May 13, 2020 incident

involved "the use of physical force and violence" against plaintiff, see ibid., and

threats of physical violence as well. Defendant pursued plaintiff, threw or

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kicked a stool that struck her in the stomach, and followed her to the basement.

He threw the plastic bin and shards of the bin at plaintiff, and then pulled her

hair, rotating her head and causing it to strike the barbells and resulting in an

injury to her eye. The court found that while he assaulted plaintiff in the

basement, defendant also repeatedly threatened to "beat the crap out of" her.

Defendant does not challenge the court's findings, and they are otherwise

supported by the evidence the court deemed credible. They reveal threats of

violence and a physical assault resulting from defendant's anger and frustration

over his adult daughter's simple refusal to accede to his demand that she turn

over a cellphone.

The court's determination an FRO is required to protect plaintiff from

future acts of domestic violence is founded on its consideration of the factors

set forth in N.J.S.A. 2C:25-29(a)(1) to (6). For example, the court relied on

"[t]he previous history of domestic violence" between the parties, "including

threats, harassment, and physical abuse." N.J.S.A. 2C:25-29(a)(1). The court

accepted plaintiff's testimony that during the four years she was in college

immediately prior to the May 13, 2019 incident, defendant struck her on one

occasion and threatened physical violence against her in text messages and

otherwise on numerous occasions. Again, the record supports the court's

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findings as to the prior history, and defendant does not challenge those findings

on appeal.

The court also considered the financial circumstances of the plaintiff and

defendant, N.J.S.A. 2C:25-29(a)(3), noting that when the incident occurred

defendant provided plaintiff's place of residence and otherwise provided some

financial support for her. The court, however, recognized that factor was no

longer relevant because at the time of trial plaintiff was not dependent on

defendant for any financial support.

The court, however, determined that due to the parent-child relationship

between defendant and plaintiff, there was a possibility of future interactions

between them if an FRO was not entered. The court determined that due to a

physical and violent assault on May 13, 2019, defendant's threats of violence on

that day, and the history of domestic violence, it was in plaintiff's best interests,

N.J.S.A. 2C:25-29(a)(4), to protect her from future acts of domestic violence by

defendant.

Defendant argues the court erred because he has no desire to maintain a

relationship with plaintiff and, therefore, he poses no risk to her for future acts

of domestic violence. The argument is untethered to any competent evidence.

Defendant did not testify at trial he has no desire to maintain a relationship with

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plaintiff, and the record is otherwise bereft of any evidence he does not want a

relationship with her. To the contrary, defendant testified he loves plaintiff and

"always wanted to spend more time with her." He never testified that following

the incident his love for plaintiff, or his desire to spend time with her, changed.

Thus, the factual premise for defendant's claim he poses no threat to plaintiff

because he has no interest in seeing her constitutes nothing more than a self-

serving contention unsupported by any evidence. See Baldyga v. Oldman, 261 N.J. Super. 259, 265 (App. Div. 1993) ("The comments following [Rule 1:6-6]

illustrate that its purpose is to . . . eliminate the presentation of facts which are

not of record by unsworn statements of counsel made in briefs and oral

arguments.").

Defendant also argues the evidence does not support an FRO because the

May 13, 2019 incident constituted an "unusual circumstance" and plaintiff failed

to prove the assault was "tainted by a desire to abuse or control plaintiff." In

support of his argument, defendant relies exclusively on our statement in R.G.,

that to support the issuance of an FRO under the PDVA, the predicate offense

"must be tainted by a desire to abuse or control the victim because of their

domestic relationship." 449 N.J. at 230. Defendant's reliance on R.G. is

misplaced.

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In R.G., two brothers who had not resided together in the same household

for thirty-six years became embroiled in a dispute concerning the method of care

for their ill mother. 4 Id. at 213. They exchanged emails over the plaintiff's plans

for the care in which the defendant threatened to "break" the plaintiff

"financially, morally, physically and mentally," and said he "would come down

there real soon . . . [g]et ready," and "I feel like coming to you and slapping you

silly." Id. at 217. They were also involved in an alteration outside of the facility

where their mother was receiving care during which the defendant shoved the

plaintiff six times. Id. at 215.

The plaintiff filed a complaint seeking an FRO under the PDVA claiming

defendant committed the predicate acts of harassment, N.J.S.A. 2C:33-4, and

simple assault, N.J.S.A. 2C:12-1(a)(1). Id. at 217; N.J.S.A. 2C:25-19(a)(2) and

(13). Based on evidence we later determined to be inadmissible, the trial court

found the defendant committed the charged predicate acts and that an FRO was

required to protect the plaintiff from future acts of domestic violence. R.G., 449 N.J. at 217-18.

4
We held the court had jurisdiction over the dispute because, under the 2015
amendments to the PDVA, a person "who is a present household member or was
any time a household member" of the defendant is "a person protected under the
act." Id. at 219 (quoting N.J.S.A. 2C:25-19(d)).
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We reversed on a multitude of grounds. We determined the exchange of

emails did not constitute harassment under N.J.S.A. 2C:33-4. Id. at 224-27. We

found the evidence supported the court's finding committed the predicate act of

simple assault, id. at 228, but we reversed the court's entry of the FRO because

the court's finding the defendant committed prior acts of domestic violence was

based on "irrelevant and inadmissible hearsay" evidence the defendant had

slapped his son. Id. at 222-23. We explained there was no history of domestic

violence between the plaintiff and the defendant, and that "[t]he critical fact

absent from the required analysis is a sufficient nexus between the predicate

conduct, . . . the shoving, and the domestic relationship between the parties." Id.

at 230.

It was in that context we made the statement defendant relies on in support

of his challenge to the court's determination an FRO is necessary to protect

plaintiff – that the predicate act of domestic violence must be tainted by a desire

to control the victim "because of their domestic relationship." Ibid. However,

that declaration provides no support for plaintiff here because unlike the parties

in R.G., plaintiff and defendant had an ongoing domestic relationship at the time

of the May 13, 2019 incident. The incident occurred in defendant's home, which

was plaintiff's primary residence, and there was a clear nexus between

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defendant's assault on plaintiff and their domestic relationship. Moreover,

unlike in R.G., here the court found a history of domestic violence by defendant

against plaintiff that supported its determination an FRO was necessary to

protect plaintiff against future acts of domestic violence.

The evidence further established defendant's May 13, 2019 assault was

"tainted by a desire to . . . control" plaintiff. See ibid. Defendant pursued

plaintiff through the house and into the basement, assaulting and threatening her

along the way, because plaintiff defiantly refused his demand for the phone.

Defendant testified repeatedly at trial that he acted in manner he did because all

he wanted was the phone. In our view, defendant's actions were clearly in

response to his loss of control over a daughter who refused to yield to his

demand, and defendant's assaultive and threatening conduct were the means he

employed to regain control over her. As the evidence established, defendant's

violent course of conduct ended only after he exercised control over his

cowering and scared daughter by forcibly taking from her what she refused to

voluntarily provide.

Defendant's conduct on May 13, 2019, constitutes a paradigm of domestic

violence inflicted as an exercise of control. See ibid. For that reason, and the

many others found by the trial court, there was ample evidence supporting its

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determination an FRO is required to protect plaintiff from future acts of

domestic violence. See Silver, 387 N.J. Super. at 127.

Affirmed.

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