E v. VS. L.G. (FV-13-0029-20, MONMOUTH COUNTY AND STATEWIDE) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-0338-19T3
E.V.,
Plaintiff-Respondent,
v.
L.G.,
Defendant-Appellant.
_______________________
Submitted September 16, 2020 – Decided September 24, 2020
Before Judges Ostrer and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FV-13-0029-20.
Aleksandra N. Gontaryuk, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Defendant L.G. 1 appeals from an August 12, 2019 final restraining order
(FRO) entered in favor of plaintiff E.V., pursuant to the Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm, substantially for the reasons
set forth in Judge Angela White Dalton's cogent oral decision.
We will not recite in detail the history between the parties. Instead, we
incorporate by reference the factual findings and legal conclusions contained in
Judge White Dalton's decision. We add the following comments.
The parties were previously married and have two teenage children. They
have had ongoing disputes over child support and parenting issues. While in
court before a different judge regarding such matters, L.G. assaulted E.V., her
former husband. That same day, E.V. obtained a temporary restraining order
(TRO) against L.G.
At the FRO hearing that followed, plaintiff testified that he requested a
TRO because defendant jumped on his back, causing him pain, and he feared
that she would continue to harass him. Defendant admitted she
hit [plaintiff] there in front of the judge, because my
other daughter was making fun of my [eleven-]year
[-]old daughter because her father's in jail.
1
We refer to the parties by initials to protect their privacy. R. 1:38-3(d)(9).
A-0338-19T3
2
[A]nd now he's be[en] putting ideas in my children's
minds that they should be with him, that they would be
better off with him.
Judge White Dalton asked defendant why she "jump[ed]" plaintiff in the
courtroom and she responded, "[b]ecause he's never helped either my husband
or I with the children." The judge then inquired why defendant jumped on
plaintiff's back, and defendant replied, "[b]ecause I'm finally tired and angry
. . . because of all of the problems that he's caused me and my family." She
further explained she assaulted plaintiff "when he told the judge that I had said
that he was an ungrateful dog and I said, that's what you are." Additionally,
defendant testified that plaintiff previously physically assaulted her.
Plaintiff responded to defendant's allegations and testified that his former
spouse "does not bother me now because the [restraining] order is there. She -
- as soon as there's no order, she's going to be texting me, she's going to be
assaulting me by phone, and with the children. I know what she's like."
After taking a brief recess, Judge White Dalton rendered her oral decision.
She concluded, "it's uncontroverted, in the presence of the court, the defendant
jumped on the plaintiff, attacked him, hit him, assaulted him. He testified today
that he felt pain." Accordingly, the judge found defendant committed the
predicate act of assault, N.J.S.A. 2C:12-1.
A-0338-19T3
3
Regarding whether an FRO should issue, the judge noted that plaintiff did
not complain about a prior history of domestic violence. Nonetheless, she found
the parties were "still in the midst of" litigation, that they could not "agree that
the sky is blue or the sun is out today. There is an escalation here as a result of
something that is going on between the minor children." Moreover, the judge
found that because the parties had children together, and "there's fighting, there's
arguments," there was a need for an FRO. The judge was particularly struck by
the fact that defendant, "in the middle of the courtroom, with law enforcement,
would . . . physically assault the other party." She concluded, "that, in and of
itself, speaks for the need for a final restraining order today."
On appeal, defendant argues that Judge White Dalton erred in granting an
FRO because she failed to consider "vital testimonial evidence" and "issued a
finding inconsistent with domestic violence law in New Jersey." These
arguments lack merit.
In adjudicating a domestic violence case, the trial judge has a "two-fold"
task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). First, the
judge must determine if the plaintiff has proven, by a preponderance of
evidence, that the defendant committed one of the predicate acts referenced in
N.J.S.A. 2C:25-19(a). Id. at 125-26. The judge must construe any such acts in
A-0338-19T3
4
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); N.J.S.A. 2C:25-29(a)(1). "[N]ot only may one sufficiently
egregious action constitute domestic violence under the Act, even with no
history of abuse between the parties, but a court may also determine that an
ambiguous incident qualifies as prohibited conduct, based on a finding of
violence in the parties' past." Cesare v. Cesare, 154 N.J. 394, 405 (1998).
Next, if a predicate offense is proven, a court must 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 (2011)
(quoting Silver, 387 N.J. Super. at 127). Whether a restraining order should
issue 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)); Cesare, 154
N.J. at 402.
A-0338-19T3
5
Applying these standards to L.G.'s arguments, we are satisfied there was
ample evidence to support Judge White Dalton's finding that E.V. satisfied each
Silver prong. Indeed, since defendant conceded she committed the predicate act
of assault, the judge appropriately found the first Silver prong was satisfied.
Further, there was enough evidence to support the judge's conclusion that
plaintiff needed an FRO to prevent defendant from inappropriately
communicating with him and to stop the escalation of the parties' conflicts. As
the judge noted, because there was ongoing litigation and fighting between the
parties, there was a need to stop the escalation of conflict.
Our review of a trial judge's fact-finding function is limited. Cesare, 154
N.J. at 411. A judge's fact-finding is "binding on appeal when supported by
adequate, substantial, credible evidence." Id. at 411-12 (quoting Rova Farms
Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Moreover,
"[b]ecause of the family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court factfinding."
Id. at 413. This is so because the judge has the opportunity to see and hear the
witnesses as they testify, thereby developing a "'feel of the case' that can never
be realized by a review of the cold record." N.J. Div. of Youth & Family Servs.
v. G.M., 198 N.J. 382, 396 (2009) (quoting N.J. Div. of Youth & Family Servs.
A-0338-19T3
6
v. E.P., 196 N.J. 88, 104 (2008)). A judge's purely legal decisions, however, are
subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App.
Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)). Tethered to these standards, we perceive no basis to
disturb Judge White Dalton's finding that defendant's decision to physically
assault plaintiff "in the middle of the courtroom, with law enforcement" present ,
due to her frustration with plaintiff's handling of "the co-parenting situation,"
warranted the entry of the FRO.
To the extent we have not addressed defendant's remaining arguments, we
find they are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
A-0338-19T3
7