L.M. VS. D.M. (FV-02-0772-18, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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-1813-17T1
L.M.,
Plaintiff-Appellant,
v.
D.M.,
Defendant-Respondent.
________________________
Argued November 8, 2018 – Decided November 28, 2018
Before Judges Koblitz and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FV-02-0772-18.
L.M., appellant, argued the cause pro se.
D.M., respondent, argued the cause pro se.
PER CURIAM
Plaintiff L.M.1 appeals from the November 2, 2017 dismissal of her
complaint and denial of her application for a final restraining order (FRO) under
the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act).2
We affirm.
Both parties were represented by counsel at trial. They lived together until
April 2017, when they separated. At the time of this incident, they had a six-
year-old son and three-year-old daughter. Defendant came to plaintiff's home
at her request at about 6:15 a.m. on October 18, 2017, to ready the children for
school. An altercation took place between the parties that began as a verbal
argument when plaintiff asked defendant to clean up because she was not feeling
well.
Plaintiff testified that defendant threatened to "knock [her] head off" and
"pushed [her] with both hands," causing her to fall back. She testified that after
being pushed, defendant continued to make breakfast. Plaintiff poured a bowl
of raw eggs on defendant's head and back. Defendant then threw the egg carton
1
We use initials to identify the parties to preserve the confidentiality of these
proceedings. R. 1:38-3(d)(10).
2
We have disregarded any material provided by plaintiff in her appendix that
post-dates the decision under review. Although both parties sought FROs, and
the judge denied both, only L.M. appeals.
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"across the room." She sought medical attention at an urgent care facility the
day of the incident. Regarding past history, plaintiff said defendant choked her
in 2009, and restrained her with "martial arts Aketo moves" twenty to twenty-
five times during their relationship.
Defendant testified he went to plaintiff's house most mornings to ready
the children for school and returned to put them to bed. He admitted to pushing
plaintiff on October 18, saying he did so "[b]ecause she was right in my face
touching me with her middle fingers and yelling from the bottom of her lungs."
He said she took two steps back as a result of the shove. He agreed with plaintiff
about the egg-throwing. He admitted he made a fist and said to plaintiff, after
she poured eggs on him, "if you touch me one more time, I'm going to knock
you down . . . ." He testified they had engaged in "horseplay" in the past and he
had once put his hands around her throat in 2009 to "calm things down."
Defendant said plaintiff had a history of being verbally abusive toward him.
Citing to Corrente v. Corrente and E.M.B. v. R.F. B.,3 the trial court found
that the behavior complained of by both parties was not so abusive that it caused
3
Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995) ("The
domestic violence law was intended to address matters of consequence, not
ordinary domestic contretemps such as this."); E.M.B. v. R.F.B., 419 N.J. Super.
177, 183-84 (App. Div. 2011) (holding that an adult son calling his mother a
"senile old bitch" was insufficient evidence to sustain an FRO).
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an immediate danger to either party. The court found plaintiff was not afraid
of defendant, and found "defendant substantially more credible than . . .
plaintiff." The court stated:
[D]efendant's questions were far more direct, far more
responsive, he gave very, very direct and simple
answers to questions. He admitted to a number of
things which arguably are against his interest and when
he does, that's something the [c]ourt considers.
The court found plaintiff's testimony, in so far as it differed from
defendant's version of the facts, such as her testimony that defendant threatened
to harm her physically before she poured raw eggs on him, rather than
afterwards, "not remotely credible." He found no need to protect either party
from the other, finding nothing defendant did to be "a matter of consequence."
When reviewing "a trial court's order entered following trial in a domestic
violence matter, we grant substantial deference to the trial court's findings of
fact and the legal conclusions based upon those findings." D.N. v. K.M., 429
N.J. Super. 592, 596 (App. Div. 2013). We do not disturb the "factual findings
and legal conclusions of the trial judge 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." Cesare v.
Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins.
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Co., 65 N.J. 474, 484 (1974)). Deference is particularly appropriate when the
evidence is testimonial and involves credibility issues because the judge who
observes the witnesses and hears the testimony has a perspective the reviewing
court does not enjoy. Pascale v. Pascale, 113 N.J. 20, 33 (1988).
The Act defines domestic violence by referring to a list of predicate
offenses found within the New Jersey Criminal Code. J.D. v. M.D.F., 207 N.J.
458, 473 (2011). "[T]he commission of a predicate act, if the plaintiff meets the
definition of a 'victim of domestic violence,' N.J.S.A. 2C:25-19(d), constitutes
domestic violence . . . ." Ibid.Before an FRO is entered, the trial court must make specific findings
consistent with our opinion in Silver v. Silver, 387 N.J. Super. 112, 125-27
(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, 154 N.J. at 402). Next, the court
must determine whether a restraining order is required to protect the party
seeking restraints from future acts or threats of violence. Id. at 126-27. "[U]pon
a finding of the commission of a predicate act of domestic violence," "[t]he
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second inquiry . . . is whether the court should enter a restraining order that
provides protection for the victim." Ibid. In other words, the mere finding of a
predicate act of domestic violence, standing alone, is insufficient to support the
issuance of an FRO. Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999).
An FRO should only issue after "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.
We defer to the credibility determinations of the trial court, which support
its determination that plaintiff did not prove the need for an FRO.
Affirmed.
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