K.M.D. VS. R.A.D. (FV-06-1232-18, CUMBERLAND COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-1088-18T3
K.M.D.,
Plaintiff-Respondent,
v.
R.A.D.,
Defendant-Appellant.
_____________________________
Submitted October 7, 2019 – Decided November 12, 2019
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland County,
Docket No. FV-06-1232-18.
Helmer, Conley & Kasselman, PA, attorneys for
appellant (Patricia B. Quelch, of counsel and on the
brief).
Rutgers Domestic Violence Clinic, Rutgers Law,
attorneys for respondent (Victoria Lynne Chase, of
counsel and on the brief).
PER CURIAM
Defendant (the father) appeals from an August 8, 2018 final restraining
order (FRO) entered against him in favor of plaintiff (the daughter) under the
Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -
35. Judge Michael R. Ostrowski, Jr. conducted a two-day FRO hearing, entered
the FRO, and rendered a detailed oral opinion. On October 9, 2018, Judge
Ostrowski denied the father's motion for reconsideration, which the father also
challenges on appeal. We affirm.
At the FRO hearing, the judge took testimony from three witnesses: the
parties and the daughter's husband (the husband), who witnessed the incident.1
The judge also admitted three pictures of the daughter's injuries from the
incident into evidence. The judge, who noted that the case hinged on credibility,
found the daughter credible, disbelieved the father (finding that the father was
"completely devoid of credibility"), and rejected the husband's testimony,
concluding that it was inconsistent and nonsensical. After considering the
evidence and making thorough credibility findings, the judge entered the FRO
against the father and dismissed the father's temporary restraining order (TRO)
against the daughter.
1
At the FRO hearing, the daughter testified that she planned to divorce the
husband.
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2
On appeal, the father argues that the judge erred by entering the FRO and
dismissing the TRO. The father asserts that the evidence does not support the
judge's findings. The father also contends that the judge mistakenly denied his
request for a new trial, or alternatively, to supplement the record on
reconsideration.
In a domestic violence case, we accord substantial deference to a judge's
findings, which "are binding on appeal when supported by adequate, substantial,
credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). We accord that
deference especially when—like here—much of the evidence is testimonial and
implicates credibility determinations. Ibid. We do not disturb the judge's
factual findings and legal conclusions, unless 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.'" Ibid. (quoting
Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).
When determining whether to grant an FRO pursuant to the PDVA, the
judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-
27 (App. Div. 2006). Under the first Silver prong, "the judge must determine
whether the plaintiff has proven, by a preponderance of the credible evidence,
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that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has
occurred." Id. at 125.
In the daughter's complaint, she alleged that the father committed the
predicate acts of harassment and assault. At the FRO hearing, the daughter
testified that she lived in a house next to the father-in-law's suite. Both
residences were on the same property, which the parties jointly owned. She
explained that the father was drinking alcohol, was "very agitated," and "very
angry." She testified that he entered her home, slammed a steel door against her
"more than ten" times, which struck her side causing "bruises on [her] lip, [her
left] arm, [and her left] cheek." The father also pinched her arm producing
further injury.
A person is guilty of harassment where, "with purpose to harass another,"
he or she:
a. Makes, or causes to be made, a communication or
communications anonymously or at extremely
inconvenient hours, or in offensively coarse language,
or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or
of repeatedly committed acts with purpose to alarm or
seriously annoy such other person.
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[N.J.S.A. 2C:33-4(a) to (c).]
Harassment requires the defendant to act with the purpose of harassing the
victim. J.D. v. M.D.F., 207 N.J. 458, 486 (2011). A judge may use "[c]ommon
sense and experience" when determining a defendant's intent. State v. Hoffman,
149 N.J. 564, 577 (1997).
The judge found defendant guilty of harassment. "The ugly names, the
name-calling, the pursuing, the slamming of the door, the holding of the door,
the taunting . . . I do find all of that amounts to highly offensive communication,
highly offensive behavior." The judge concluded that the father "exhibited signs
of being under the influence of some type of substance and had alcohol on his
breath," that he "got in [the daughter's] face," and that "he was so close that his
spit was even getting on her." The judge further noted that the father "pursued
[the daughter] for the purpose of continuing to taunt her, [to] harass her[,]" and
that the father would not allow her to close the steel door. In addition to these
detailed findings, the judge indicated the father called the daughter a "whore."
Although the judge found that the father primarily harassed the daughter,
he also concluded that the father was guilty of simple assault, which occurs 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 consists of
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"physical pain, illness or any impairment of physical condition." N.J.S.A.
2C:11-1(a). The judge determined that the father's "purposeful [and] certainly
reckless actions" injured the daughter. "She was hurt, and I have the pictures to
show it." The judge concluded that the daughter's bruised left arm, swollen lip,
and the discoloration on her cheek came from the father slamming the door
against her. "[S]he did not exaggerate. She said it how it was."
Under the second Silver prong, a judge must also determine whether a
restraining order is necessary to protect the plaintiff from future acts or threats
of violence. 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 [restraining]
order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995).
Although that determination "is most often perfunctory and self-evident, 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 protect the
victim from an immediate danger or to prevent further abuse." Silver, 387 N.J.
Super. at 127.
The daughter testified she did not feel safe. She explained that the father
used alcohol, smoked marijuana, and owned more than five guns. The daughter
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stated he repossessed his guns after they were seized because of the ex-wife's
restraining order against him. The judge found that the daughter retreated into
her home but that "the danger followed her." The daughter testified that the
father had an anger problem and that she feared him. Indeed, the only part of
the father's testimony that was believable—according to the judge—was the
father's admission that he previously threatened the daughter. "[G]iven [the
father's] own admission about feeding her to the pigs, a threat to feed her to the
pigs, and the fact that he pursued her[,]" the judge found that "the fear of further
acts of domestic violence is real[.]" Thus, the judge concluded that the FRO
was necessary to protect the daughter from "not only immediate danger . . . but
[from] further acts of domestic violence."
We reject the father's remaining arguments pertaining to his
reconsideration efforts, which included his attempt to either re-open the trial or
supplement the record. The father maintains that reconsideration was
appropriate because the daughter "provided the [judge] with incomplete and
inaccurate information regarding the incident." The standard for reconsideration
motions is clear:
Reconsideration itself is "a matter within the sound
discretion of the Court, to be exercised in the interest
of justice[.]" It is not appropriate merely because a
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litigant is dissatisfied with a decision of the court or
wishes to reargue a motion, but
should be utilized only for those cases
which fall into that narrow corridor in
which either 1) the [c]ourt has expressed its
decision based upon a palpably incorrect or
irrational basis, or 2) it is obvious that the
[c]ourt either did not consider, or failed to
appreciate the significance of probative,
competent evidence.
[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App.
Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super.
392, 401 (Ch. Div. 1990)).]
"[T]he magnitude of the error cited must be a game-changer for reconsideration
to be appropriate." Id. at 289.
In his oral opinion, the judge reiterated the daughter's testimony that she
smelled alcohol on the father's breath. In rejecting the father's arguments, the
judge also emphasized that he rejected the father and the husband's testimonies.
The judge said there was no evidence that the daughter tried to mislead him.
Affirmed.
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