O.T v. M.T., JR

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                                NOT FOR PUBLICATION WITHOUT THE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-2257-20

O.T.,

          Plaintiff-Respondent,

v.

M.T., JR.,

     Defendant-Appellant.
_______________________

                   Submitted March 16, 2022 – Decided March 28, 2022

                   Before Judges Accurso and Enright.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Monmouth County,
                   Docket No. FV-13-0471-21.

                   H. Tiffany Weiner, attorney for appellant (H. Tiffany
                   Weiner, of counsel; Jeffrey Zajac, on the brief).

                   Respondent has not filed a brief.

PER CURIAM
      In this one-sided appeal, defendant M.T., Jr.1 challenges the March 2,

2021 final restraining order (FRO) entered in favor of his estranged wife,

plaintiff O.T., pursuant to the Prevention of Domestic Violence Act,  N.J.S.A.

2C:25-17 to -35.2 We affirm, substantially for the reasons set forth in Judge

Gregory L. Acquaviva's comprehensive oral opinion, and add the following

comments.

       The parties were married in 2015 and have two children, ages four and

six. When Judge Acquaviva heard this matter, the parties were in the midst of

divorce proceedings. The judge found that during a parenting time exchange at

a police station on October 5, 2020, while the parties' two young children were

seated in defendant's car, plaintiff approached the passenger side of defendant's

car "in an aggressive demeanor" and started "banging on the door . . . demanding

[defendant] open the door." She then walked to the driver's side of the car and

began yelling at defendant about an issue regarding the children. Defendant




1
 We use initials to protect the privacy of the individuals involved in this appeal.
R. 1:38-3(d)(9).
2
  An FRO also was granted against plaintiff at the March 2 hearing; she does
not appeal from the FRO against her.


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"encourage[d] her to back up" as she was "encroaching on his personal space,"

but "[s]he refuse[d]."

      Despite defendant's continuing entreaties, plaintiff did not move away

from his car.    Defendant responded by calling her a "raging animal" and

sarcastically told her she should "lay down" in front of the car. Further, he told

her to "get out of his face." Plaintiff taunted defendant, saying "who cares about

your face, only your mother." Additionally, she struck defendant "about the

shoulder [and] neck."

      Based on surveillance video and audio from the incident, as well as the

testimony of the parties, the judge summarized what happened next:

                  . . . At this point, [defendant] becomes adamant
            about leaving[.] . . . He asks her to move her feet. She
            says no. He responds, "I will run it over." The car
            lurches forward one time[.] . . . His steering wheel was
            cocked to the right and the car is turning away from her.
            [Plaintiff] yips. The movement of the car was minimal,
            however, [plaintiff] is in the door [of the car,] the door
            is open, the kids are playing nearby. . . . [Defendant]
            says that he was trying to de-escalate the situation. . . .
            [But h]e said "I will run it over" and the car lurched
            forward. It's not a de-escalation. It was reckless.

                   . . . . [T]he outdoor video [shows plaintiff]
            staggers and she was shocked, there was a[] yelp by
            [her]. And again, at that point, the [defendant's] car
            stops, it goes in reverse and stops again.



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                   . . . [T]he appearance [is] that [defendant]
            believes that he ran over [plaintiff's] foot, contrary to
            his first statements. . . . She states that she went to the
            hospital the next day due to pain. . . .

                    In the lobby [of the police station] right after the
            incident, [plaintiff] is noticeably limping. . . . As the
            lobby video demonstrates, her limping becomes worse.
            . . . She removes her flip flop. She removes her sock to
            look at her foot. She's repeatedly examining her foot.

                   While the [c]ourt believes that [plaintiff] is
            exaggerating how long the car was on her foot and [her]
            injuries, the parties['] initial reactions are clear[.] [S]he
            yelps, staggers . . . , he stops the car out of concern.
            They go to the lobby. She's examining her foot, taking
            off her flip flop, taking off her sock and noticeably
            limping around the lobby.

                  . . . Did she harass him? Yes. . . . But does that
            mean that she should have her foot run over by a Jeep
            Wrangler? Absolutely not. It's not a proportional
            response. There are other more appropriate responses,
            [such as] asking her to please move[,] to try to exit the
            vehicle, [or] calling inside to the police station to ask
            for assistance.

      After the judge rendered his factual and credibility findings, he concluded

defendant's conduct constituted an assault,  N.J.S.A. 2C:12-1(a)(1) and

harassment,  N.J.S.A. 2C:33-4(b). In finding defendant harassed plaintiff, the

judge observed that defendant threatened to run over plaintiff's foot before he

carried out his threat. Upon finding defendant committed the predicate acts of

assault and harassment, the judge determined plaintiff was entitled to an FRO to

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preclude future acts of domestic violence. The judge emphasized that the parties

had a "significant [history of] contretemps," "[t]his happened at a police station

parking lot," and "[t]he children were there."

        On appeal, defendant raises the following contentions for our

consideration:

         I.   THE LAW DIVISION COMMITTED REVERSIBLE
              ERROR BY MISAPPLYING THE SECOND PRONG
              OF THE SILVER3 ANALYSIS AND GRANTING
              THE PLAINTIFF’S APPLICATION FOR A FINAL
              RESTRAINING ORDER.

                 A. UNDER THE SECOND PRONG OF SILVER,
                    [O.T.] WAS NOT ENTITLED TO A FINAL
                    RESTRAINING ORDER

                 B. THE TRIAL COURT'S REASONING IS NOT
                    SUPPORTED    BY   THE   ADEQUATE,
                    SUBSTANTIAL CREDIBLE EVIDENCE, AND
                    REQUIRES REVERSAL

        These arguments lack merit. R. 2:11-3(e)(1)(E).

        Appellate courts review a "Family Part judge's findings in accordance

with a deferential standard of review, recognizing the court's 'special jurisdiction

and expertise in family matters.'" Thieme v. Aucoin-Thieme,  227 N.J. 269, 282-

83 (2016) (quoting Cesare v. Cesare,  154 N.J. 394, 413 (1998)). We provide



3
    Silver v. Silver,  387 N.J. Super. 112 (App. Div. 2006).
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that deference especially when much of the evidence is testimonial and

implicates credibility determinations. Cesare,  154 N.J. at 412. Thus, "findings

by a trial court are binding on appeal when supported by adequate, substant ial,

credible evidence." Gnall v. Gnall,  222 N.J. 414, 428 (2015) (quoting Cesare,

 154 N.J. at 411-12). But appellate courts review legal conclusions de novo.

Thieme,  227 N.J. at 283 (citing D.W. v. R.W.,  212 N.J. 232, 245-46 (2012)).

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

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

plaintiff has proven by a preponderance of the evidence the defendant committed

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

harassment,  N.J.S.A. 2C:33-4, and assault,  N.J.S.A. 2C:12-1(a).            N.J.S.A.

2C:25-19(a)(2) and (13). The judge must construe any alleged acts of domestic

violence in light of the parties' history to better "understand the totality of the

circumstances of the relationship." Kanaszka v. Kunen,  313 N.J. Super. 600,

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

      If a predicate offense is proven, the judge must then assess "whether a

restraining order is necessary, upon an evaluation of the facts 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." J.D. v. M.D.F.,  207 N.J. 458, 475-76


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(2011) (quoting Silver,  387 N.J. Super. at 127). Whether a restraining order

should be issued depends on the seriousness of the predicate offense, on "the

previous history of domestic violence between the plaintiff and defendant

including previous threats, harassment[,] and physical abuse[,] and [on] whether

immediate danger to the person or property is present." Corrente v. Corrente,

 281 N.J. Super. 243, 248 (App. Div. 1995) (citing  N.J.S.A. 2C:25-29(a)).

      Here, defendant states he "does not challenge the trial court's finding that

his conduct on October 5, 2020 technically met the requirement for a simple

assault under Title 2C," but contends "the predicate act of simple assault on

October 5 . . . did not reasonably present the threat of immediate or future harm."

We disagree.

      As we noted in Silver, once a court concludes the plaintiff has proved an

act of domestic violence, the "second determination – whether a domestic

violence restraining order should issue – is most often perfunctory and self-

evident."  387 N.J. Super. at 127. Here, given the judge's credibility and factual

findings, which are amply supported on the record, his recognition of the parties'

ongoing acrimonious relationship, and his detailed analysis and application of

both Silver prongs, we perceive no basis to disturb his conclusion plaintiff was

entitled to an FRO to preclude future acts of domestic violence.


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Affirmed.




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