M.D. v. C.W

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                                NOT FOR PUBLICATION WITHOUT THE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-3249-19

M.D.,1

          Plaintiff-Respondent,

v.

C.W.,

     Defendant-Appellant.
_______________________

                   Submitted February 24, 2021 – Decided April 5, 2021

                   Before Judges Rose and Firko.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Middlesex County,
                   Docket No. FV-12-1472-20.

                   The DeTommaso Law Group, LLC, attorneys for
                   appellant (Michael J. DeTommaso, on the briefs).

                   Law Offices of Jonathan F. Marshall, attorneys for
                   respondent (Brett M. Rosen, on the brief).



1
  We use initials for the parties to protect plaintiff's confidentiality. R. 1:38-
3(d)(10).
PER CURIAM

      Defendant C.W.2 appeals from a March 4, 2020 final restraining order

(FRO) issued in favor of her former boyfriend, plaintiff M.D., pursuant to the

Prevention of Domestic Violence Act (PDVA),  N.J.S.A. 2C:25-17 to -35. We

affirm.

                                        I.

      We glean the following facts from the testimony elicited at the FRO

hearing.   Plaintiff and defendant were in a dating relationship and were

household members living in an apartment until January 26, 2020, when plaintiff

moved out to live with his parents. Defendant testified that plaintiff ended their

relationship on December 30, 2019, but the parties intended to reside together

until the expiration of their joint lease in March 2020.

      On January 26, 2020, while the parties were driving on the Turnpike,

defendant testified that while plaintiff was driving, she informed him she was

going on a date that night. Plaintiff testified he became upset because he thought

they were moving on too quickly and should wait until they both vacated the



2
  We refer to the parties as their names appear in the caption on appeal. The
Family Part judge referred to defendant as "plaintiff" and plaintiff as
"defendant" prior to rendering his opinion consistent with the order in which the
complaints under the PDVA were filed.
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apartment to pursue other relationships. Defendant claimed plaintiff began to

drive erratically, and plaintiff denied this.

      After returning to their apartment, defendant held up a bottle, threatening

to "punch" and "kill" plaintiff. He testified that defendant became very violent

and angry, proceeding to get in his face.        While waiving three fingers in

plaintiff's face, defendant told him that he "doesn't get to tell her what to do."

Plaintiff stood up and tried to calm defendant down, but she slapped him across

the face with such force that his eyeglasses flew off. She then took a letter

opener, placed it against plaintiff's chest, and told him, "I'm going to kill you."

      After putting down the letter opener, defendant began "swinging" at

plaintiff. Ultimately, both parties fell to the ground; plaintiff held d efendant's

wrists to stop her from hitting him. Defendant struck plaintiff "multiple times."

When defendant got up, she grabbed the collar of plaintiff's shirt and almost

"ripped all the way through" as he tried to run into the bedroom and close the

door for his safety. Defendant grabbed plaintiff's guitar and attempted to break

it while he held it. He dropped the guitar and while in the bedroom, defendant

pushed or kicked the door open, and then kicked plaintiff from behind as he

headed towards the closet.




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        Plaintiff told defendant to "get away" from him, and he pushed her onto

the bed. Defendant testified plaintiff told her to give her date a "blow job," get

an STD, and die. From the edge of the bed, defendant kicked plaintiff in his

chest, arms, and legs. She called him a "pussy" and said he had a "small dick."

Defendant called the police claiming plaintiff attacked her. Plaintiff testified he

did not want to apply for a temporary restraining order (TRO) that day and

declined to file criminal charges against defendant because he "didn't want her

to get in trouble," and "didn't want anything bad to happen to her." Because he

was in a state of "panic," plaintiff did not tell the police about the letter opener

incident. After observing plaintiff covered in red marks on his torso and chest,

and a dark, red burn on his neck, the police arrested defendant on January 26,

2020.

        After the January 26, 2020 incident, plaintiff sent defendant text messages

on January 29 and 30, 2020, inquiring as to how she was feeling and stating they

"need to talk." Plaintiff testified the parties had "to initiate conversation" about

the expiration of their apartment lease and moving out. Defendant did not

respond to plaintiff's text messages. Prior to the entry of the February 4, 2020

TRO, plaintiff returned to the apartment during his lunch hour from work on

more than one occasion to retrieve his personal possessions when defendant was


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not there. He testified that if defendant was there or showed up, he "probably"

would have called the police.

      On February 4, 2020, defendant obtained a TRO against plaintiff and

several weeks later, plaintiff obtained a cross-TRO against defendant on

February 25, 2020. He amended his cross-TRO two days later and added

additional instances of prior domestic violence between the parties.

      At trial, plaintiff testified and gave his account of the January 26, 2020

incident. In terms of the prior history of domestic violence between the parties,

plaintiff testified that in July 2019, defendant repeatedly punched him after she

had been drinking.     He also testified about an incident that occurred in

November 2019 when defendant threw a glass at him, which he disclosed to his

psychiatrist. According to plaintiff, he was treating with a psychiatrist for

anxiety and depression.

      Plaintiff sought to introduce his psychiatrist's notes from his November 2,

2019 session into evidence under Rule 803(c)(3), "Then-Existing Mental,

Emotional, or Physical Condition," Rule 803(c)(4), "Statements for Pur poses of

Medical Diagnosis or Treatment," and Rule 803(c)(6), "Records of a Regularly

Conducted Activity." The psychiatrist did not testify at trial and no custodian

of records appeared to authenticate the doctor's notes as being kept in the


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ordinary course of business. The judge inquired of plaintiff's counsel whether

an adjournment was requested to have someone appear from the doctor's office

to testify. Plaintiff's counsel agreed to do that, but defendant's counsel and

defendant did not want an adjournment. The judge admitted the psychiatrist's

record into evidence. Plaintiff testified that his psychiatrist noted in his record

that defendant was physically aggressive towards him that day and on prior

occasions.

      In December 2019, defendant became angry at plaintiff, and he testified

she slammed a keyboard against the wall. Plaintiff did not call the police

following these incidents because he did not want anything to happen to her, and

he feared retaliation because she is a "violent person." The record also shows

that defendant weighed fifty pounds more than plaintiff.

      Officer Michael Kelly testified upon arriving at the scene, that plaintiff

was "shirtless," "very visibly distraught," and "covered in red marks along his

torso and chest." Officer Kelly also stated plaintiff had a "dark red burn along

his neck" and "a couple of scratch marks along the upper chest." According to

Officer Kelly, defendant had "no sign of injury on her."

      Following the close of evidence, the Family Part judge rendered a

thorough oral decision. The judge summarized the evidence presented regarding


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domestic violence and analyzed the testimony pursuant to the framework

established under Silver v. Silver,  387 N.J. Super. 112, 126 (App. Div. 2006).

Based on this assessment, the judge found defendant did not satisfy her burden

of proof by a preponderance of the credible evidence as to the predicate acts of

harassment,  N.J.S.A. 2C:33-4(b); assault,  N.J.S.A. 2C:12-1(1); or terroristic

threats,  N.J.S.A. 2C:12-3(a). Accordingly, the judge dismissed defendant's TRO

and domestic violence complaint against plaintiff.

      As to plaintiff's complaint, the judge found plaintiff was "far more

credible as a witness" than defendant, and Officer Kelly to be "extremely

credible." The judge determined that plaintiff satisfied his burden of proof as to

the predicate acts of harassment, assault, and terroristic threats, satisfying the

first Silver prong. After addressing the prior history of domestic violence

between the parties in conjunction with the predicate acts proven by plaintiff,

the judge analyzed the second Silver prong. The judge concluded an immediate

danger existed in light of the "severity of the assault" by defendant against

plaintiff on January 26, 2020, and the July 2019 incident involving alcohol. As

such, plaintiff required an FRO to protect him "from further abuse at the hand"

of defendant. This appeal followed.

      On appeal, defendant argues:


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            (1) the judge abused his discretion in concluding
            plaintiff satisfied his burden under the second prong of
            Silver because the evidence and testimony did not
            support a finding he was in immediate danger of her;
            and

            (2) the judge abused his discretion in concluding
            plaintiff had satisfied his burden under the second
            prong of Silver because the evidence relied upon to
            establish a prior history of domestic violence
            constituted inadmissible hearsay.

      Defendant does not appeal the dismissal of her TRO and domestic

violence complaint.

                                       II.

      Our review of the Family Part judge's decision to enter a FRO in a

domestic violence matter is limited. Peterson v. Peterson,  374 N.J. Super. 116,

121 (App. Div. 2005). "A reviewing court is bound by the trial court's finding s

'when supported by adequate, substantial, credible evidence.'" Ibid. (quoting

Cesare v. Cesare,  154 N.J. 394, 412 (1998)). "This deferential standard is even

more appropriate 'when the evidence is largely testimonial and involves

questions of credibility.'" L.M.F. v. J.A.F., Jr.,  421 N.J. Super. 523, 533 (App.

Div. 2011) (quoting In re Return of Weapons to J.W.D.,  149 N.J. 108, 117

(1997)). "Reversal is warranted only when a mistake must have been made

because the trial court's factual findings are 'so manifestly unsupported by or


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                                       8
inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice[.]'" Elrom v. Elrom,  439 N.J. Super. 424, 433

(App. Div. 2015) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,  65 N.J. 474, 484 (1974)). However, we review de novo "the trial judge's legal

conclusions, and the application of those conclusions to the facts[.]" Ibid.

(quoting Reese v. Weis,  430 N.J. Super. 552, 568 (App. Div. 2013)).

      In adjudicating a domestic violence case, the trial judge has a "two-fold"

task. Silver,  387 N.J. Super. 125. The judge must first determine whether the

plaintiff has proven, by a preponderance of the evidence, that the defendant

committed one of the predicate acts referenced in  N.J.S.A. 2C:25-19(a) as

conduct constituting domestic violence. Id. at 125-26. The judge must construe

any such acts in light of the parties' history to better "understand the totality of

the circumstances of the relationship and to fully evaluate the reasonableness of

the victim's continued fear of the perpetrator." Kanaszka v. Kunen,  313 N.J.

Super. 600, 607 (App. Div. 1998); see  N.J.S.A. 2C:25-29(a)(1).

      A finding of harassment requires proof that the defendant acted "with

purpose to harass."     N.J.S.A. 2C:33-4; see Silver,  387 N.J. Super. at 124.

Although a purpose to harass may, in some cases, be "inferred from the

evidence," and may be informed by "[c]ommon sense and experience[,]" a


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                                         9
finding by the court that the defendant acted with a purpose or intent to harass

another is integral to a determination of harassment. State v. Hoffman,  149 N.J.
 564, 577 (1997).

       We note that purposeful conduct "is the highest form of mens rea

contained in our penal code, and the most difficult to establish."       State v.

Duncan,  376 N.J. Super. 253, 262 (App. Div. 2005). Its establishment requires

proof, in a case such as this, that it was the actor's "conscious object to engage

in conduct of that nature or to cause [the intended] result."  N.J.S.A. 2C:2- -

2(b)(1). A plaintiff's assertion that the conduct is harassing is not sufficient.

J.D. v. M.D.F.,  207 N.J. 458, 484 (2011). Further, a "victim's subjective reaction

alone will not suffice; there must be evidence of the improper purpose." Id. at

487.

       When deciding the issues of intent and effect, we are mindful of the fact

that

             harassment is the predicate offense that presents the
             greatest challenges to our courts as they strive to apply
             the underlying criminal statute that defines the offense
             to the realm of domestic discord. Drawing the line
             between acts that constitute harassment for purposes of
             issuing a domestic violence restraining order and those
             that fall instead into the category of "ordinary domestic
             contretemps" presents our courts with a weighty
             responsibility and confounds our ability to fix clear
             rules of application.

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                                       10
            [Id. at 475 (citation omitted).]

"[T]he decision about whether a particular series of events rises to the level of

harassment or not is fact-sensitive." Id. at 484.

      As to harassment, the judge reasoned that plaintiff proved the elements

under  N.J.S.A. 2C:33-4(b) because there was "striking, kicking and shoving" by

defendant, specifically slapping plaintiff across the face, causing a scratch near

his right temple. Calling plaintiff a "pussy" and saying he has a "small dick"

were found to be domestic contretemps by the judge and did not constitute a

separate act of harassment.

      Based on his assessment, the judge also found that a simple assault

occurred, contrary to  N.J.S.A. 2C:12-1(a)(1), as a result of defendant's punches

to plaintiff's "arms, head and torso," and kicking "him in the chest while she was

on the bed." In pertinent part, the assault statute provides a person is guilty of

assault if he or she "attempts to cause or purposely, knowingly or recklessly

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

defendant's actions were "done purposely and knowingly under the assault

statute."




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                                       11
      The judge also credited plaintiff's testimony over that of defendant before

concluding she committed the predicate act of terroristic threats. A person

commits the act of terroristic threats if a person

            threatens to commit any crime of violence with the
            purpose . . . to put [that other person] in imminent fear
            of death under circumstances reasonably causing the
            victim to believe the immediacy of the threat and the
            likelihood that it will be carried out.

            [N.J.S.A. 2C:12-3.]

      Proof of terroristic threats must be assessed by an objective standard.

State v. Smith,  262 N.J. Super. 487, 515 (App. Div. 1993). "The pertinent

requirements are whether: (1) the defendant in fact threatened the plaintiff; (2)

the defendant intended to so threaten the plaintiff; and (3) a reasonable person

would have believed the threat." Cesare,  154 N.J. at 402.

      Here, in the face of the "severity of the altercation," the judge determined

that defendant telling plaintiff she was going to kill him was said "with the

purpose to terrorize him," as defined in  N.J.S.A. 2C:12-3(a). We are satisfied

defendant's actions met these requirements and qualified as terroristic threats. 3


3
  Plaintiff also pled criminal mischief as a predicate act in his complaint, but
the judge did not address criminal mischief in his opinion. Since plaintiff
needed only to prove that one predicate act set forth in  N.J.S.A. 2C:25-19(a)
occurred, we nonetheless affirm the FRO. Silver,  387 N.J. Super. at 125; Cesare,
 154 N.J. at 402.
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                                       12
Given our deferential standard of review, we discern no basis to disturb the

judge's findings as to harassment, assault, and terroristic threats.

      If a predicate offense is proven, the judge must then assess "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 (6), to protect the victim from an immediate danger

or to prevent further abuse." J.D.,  207 N.J. at 475-76 (quoting Silver,  387 N.J.

Super. at 127). The factors which the court should consider include, but are not

limited to:

              (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;

              (5) In determining custody and parenting time the
              protection of the victim's safety; and

              (6) The existence of a verifiable order of protection
              from another jurisdiction.

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




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                                        13
      Here, the judge properly considered and permitted plaintiff's testimony on

prior acts of domestic violence and addressed the six statutory factors set forth

in  N.J.S.A. 2C:25-29(a). Based upon the substantial credible evidence in the

record, the judge found "the existence of immediate danger" posed by defendant

to plaintiff. Defendant's conduct was not an isolated incident based on plaintiff's

credible testimony that defendant assaulted him in the recent past. We discern

no abuse of discretion in the issuance of the FRO for plaintiff's protection.

      Defendant's argument that the judge abused his discretion in concluding

plaintiff satisfied his burden under the second prong of Silver because the

evidence relied upon—the psychiatrist's record—constituted inadmissible

hearsay is rejected. In his opinion, the judge highlighted that he "had not

considered anything" in the psychiatrist's record, "other than the recitation of

[plaintiff's] own statements to his mental health professional" relative to the

November 2019 incident. Moreover, defendant and her counsel declined the

opportunity for an adjournment to have the psychiatrist or the custodian of

records testify. Therefore, we discern no violation of any evidence rule and

there was no resulting prejudice to defendant. The judge's determination that an

FRO was necessary to protect plaintiff was well-founded.




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                                       14
      In light of our decision, we need not address plaintiff's argument that

defendant's appeal was filed beyond the forty-five-day time limit set forth in

Rule 2:4-1(a).

      Affirmed.




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