M.F. VS. R.W. (FV-11-1425-16, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-4943-15T3
M.F.,
Plaintiff-Respondent,
v.
R.W.,
Defendant-Appellant.
____________________________________
Submitted July 18, 2017 – Decided July 28, 2017
Before Judges Reisner and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FV-11-1425-16.
R.W., appellant pro se.1
Respondent has not filed a brief.
PER CURIAM
1
The brief submitted by R.W. includes the name of his former
attorney, but it is signed by R.W. in a self-represented capacity.
R.W.2 appeals the entry of a final restraining order (FRO) on
July 7, 2016 under the Prevention of Domestic Violence Act (the
Act), N.J.S.A. 2C:25-17 to -35. We affirm.
M.F. (Mary) is the adult daughter of R.W. (Ryan). They are
former members of the same household. Mary testified that she had
been living in Florida, but recently moved back to Trenton at the
urging of D.W., Mary's grandmother and Ryan's mother
(grandmother), to assist with grandmother's care. Ryan and his
brother had been providing care for grandmother, who may have
dementia. Grandmother testified she asked Mary to return to New
Jersey because she understood Mary had no other place to go.
On May 17, 2016, just two days after Mary returned from
Florida, a confrontation occurred between Ryan and Mary at
grandmother's house. During the confrontation, Mary said Ryan
grabbed her clothing as she was ascending the stairs, pulled her
down the steps, "stomped" on her chest and head, and kicked her.
Mary called the police, but according to her, they asked her to
leave the premises. She went to the hospital and was admitted
overnight for a lung contusion.
2
We use initials and pseudonyms throughout the opinion because of
the underlying domestic violence litigation. R. 1:38-3.
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Ryan denied he was the aggressor in the confrontation,
testifying that he intervened during Mary's argument with a home
health aide. He testified he did not have physical contact with
Mary except he did "grab" her to keep from falling, and as a
consequence, they both landed on the floor. Neither the home
health aide nor grandmother, both of whom were present, saw the
reported physical confrontation between Ryan and Mary, although
they both testified that at some point Ryan threw Mary's clothes
down the steps to the first floor.
Mary applied for and obtained a temporary restraining order
(TRO) against Ryan. The predicate offenses alleged were assault,
N.J.S.A. 2C:12-1; harassment, N.J.S.A. 2C:33-4; and terroristic
threats, N.J.S.A. 2C:12-3. See N.J.S.A. 2C:25-19(a) (listing
predicate offenses). A few days later, Ryan also obtained a
temporary restraining order (Ryan's TRO) against Mary.3
The cases were adjourned to enable Mary to obtain counsel,
but she did not do so and represented herself at trial. After two
days of testimony, the trial judge found "a large part of the
testimony of both parties was simply not credible. It was prone
3
Ryan's TRO under docket number FV-11-1465-16 was not referenced
in his appeal. It was tried together with Mary's request for a
final restraining order, and was dismissed, but there is no order
to this effect in the record.
3 A-4943-15T3
to exaggeration." However, because of the hospital record that
indicated Mary had suffered a lung contusion, the court was
satisfied Mary had proven that an assault occurred. The court
found "there was a contusion to the chest sufficient enough for
them to prescribe pain medication, to encourage her to return at
a future date."
The trial court concluded that Mary had proven the predicate
acts of assault and harassment by a preponderance of the evidence,
but that she had not proven the predicate act of terroristic
threats, which claim was dismissed.4 Based upon Mary's allegation
that there had been two prior incidents of domestic violence, the
court found there was a need to protect her from Ryan. The court
accepted this portion of Mary's testimony about past domestic
violence, finding Ryan's denials were not credible. The court
entered the FRO on July 7, 2016 that restrained Ryan from contact
with Mary.
On appeal, Ryan contends that Mary failed to prove the acts
of assault or harassment, that the FRO was not supported by
sufficient credible evidence in the record, and that on remand the
case should be heard by a different judge.
4
Mary did not appeal nor file a brief in this appeal.
4 A-4943-15T3
Our standard of review of the trial court's factual findings
is limited. Factual findings are "binding on appeal when supported
by adequate, substantial, and credible evidence." Rova Farms
Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)
(citation omitted). Findings and conclusions of the trial judge
are entitled to enhanced deference in family court matters. Cesare
v. Cesare, 154 N.J. 394, 413 (1998). We also defer to credibility
assessments made by a trial court unless they are manifestly
unsupported by the record, because the trial court had the critical
ability to observe the parties' conduct and demeanor during the
trial. Weiss v. I. Zapinsky, Inc., 65 N.J. Super. 351, 357 (App.
Div. 1961).
The entry of a final restraining order requires the trial
court to make certain findings. See Silver v. Silver, 387 N.J.
Super. 112, 125-26 (App. Div. 2006). The court "must determine
whether the plaintiff has proven, by a preponderance of the
credible evidence, that one or more of the predicate acts set
forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125. The
court should make this determination "in light of the previous
history of violence between the parties." Ibid. (quoting Cesare,
supra, 154 N.J. at 402). Next, the court must determine whether
a restraining order is required to protect the party seeking
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restraints from future acts or threats of violence. Id. at 126-
27. That means "there must be a finding that 'relief is necessary
to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476
(2011) (quoting N.J.S.A. 2C:25-29(b)).
Here, the record supports the trial court's credibility
determinations and factual findings. The trial judge found that
neither party was entirely credible, but because there was medical
documentation to support Mary's claim that her lung was injured
by Ryan when he "stomped" on her chest, the court found her
credible in this regard.
There was ample evidence to support the court's finding that
the predicate act of simple assault was established. A simple
assault is committed when a person "[a]ttempts to cause or
purposely, knowingly or 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). The court gave credence to Mary's version
of events to the extent corroborated by her medical records,
because "[t]here's no other explanation for [the contusion to the
chest]" other than Mary's testimony that Ryan caused her injury.
Given the court's credibility determination, there was ample
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evidence in the record to support its finding that an assault
occurred.
A person commits the offense of harassment if, "with purpose
to harass another, he . . . [s]ubjects another to striking,
kicking, shoving, or other offensive touching, or threatens to do
so." N.J.S.A. 2C:33-4(b). We agree with the court that the record
supports a finding of harassment based upon the confrontation that
occurred between the parties on May 17 and the medical record
confirmation of an injury.
A restraining order will not issue based solely on the
commission of a predicate offense listed in the Act. Bittner v.
Harleysville Ins. Co., 338 N.J. Super. 447, 454 (App. Div. 2001)
(citing N.B. v. T.B., 297 N.J. Super. 35, 40 (App. Div. 1997)).
A court must also consider additional factors that include "(1)
[t]he previous history of domestic violence between the [parties],
including threats, harassment and physical abuse; (2) [t]he
existence of immediate danger to person or property; . . . [and]
(4) [t]he best interests of the victim and any child[.]" N.J.S.A.
2C:25-29(a)(1), (2) and (4). Indeed, "the guiding standard is
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
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protect the victim from an immediate danger or to prevent further
abuse." Silver, supra, 387 N.J. Super. at 127.
We agree with the court that the record supported the need
to protect Mary against Ryan's acts of domestic violence based on
the court's credibility determination about the earlier acts of
domestic violence, and Mary's fear he would repeat the violence.
We are satisfied that the record supported the entry of the FRO.
Affirmed.
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