G.D. VS. U.D. (FV-12-1715-18, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-1492-19
G.D.,
Plaintiff-Respondent,
v.
U.D.,
Defendant-Appellant.
Submitted December 9, 2020 – Decided March 22, 2021
Before Judges Alvarez and Sumners.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-1715-18.
Ryan E. Gilbert, attorney for appellant.
Spencer & Associates, LLC, attorneys for respondent
(Remi L. Spencer, on the brief).
PER CURIAM
Defendant U.D.1 appeals the entry of a June 20, 2019 final restraining
order (FRO) pursuant to the Prevention of Domestic Violence Act (Act),
N.J.S.A. 2C:25-17 to -35. He also appeals the judge's November 18, 2019
reconsideration decision awarding plaintiff G.D. $31,978 in counsel fees and
$4000 in punitive damages. 2 See N.J.S.A. 2C:25-29(b)(4) (authorizing punitive
and compensatory damages for acts of domestic violence). We affirm.
The trial was conducted over six months on seven days. Many text
messages and emails were introduced by both parties that clearly supported the
judge's finding that the parties had a "volatile" relationship.
Plaintiff testified that on April 28, 2018, shortly after she dismissed a
temporary restraining order (TRO) she had previously obtained protecting her
from defendant, he appeared at her home. Plaintiff, who had been asleep, came
downstairs in her pajamas, a sweater, and "pajama bootie things . . . ."
Defendant had earlier texted that he was on the way—but since plaintiff had
gone to bed, she did not see the message. Her twenty-three-year-old daughter
answered the door and awakened her. Plaintiff did not want her sixteen-year-
1
We use initials to protect the parties' privacy. R. 1:38-3(d)(9).
2
The judge awarded plaintiff $614.93 in compensatory damages, which are not
appealed.
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old son, who was also home, to see her talking to defendant, so she agreed to
speak to defendant in his car, and she asked him to park around the corner. Once
plaintiff sat in the car, defendant drove off, refusing to let her out. He alternated
between verbal abuse and extreme affection. He kept the car doors locked and
took her cell phone—as she said, "that's one of the first things he always does,
is he takes my phone away." When defendant finally arrived at his townhouse,
plaintiff got out and the two struggled for her cell phone. Plaintiff eventually
relinquished it, moving towards the house in an effort to gain entry and escape
through the front door. Defendant grabbed her left leg and pulled it up while
twisting to the side. As he did so, he told her that she would die that night.
Plaintiff fell during the brief physical confrontation. When defendant turned
back to his car, which he had left still running parked in the garage, plaintiff fled
to a neighbor's home. The neighbor immediately let her in, and called police
and an ambulance. The cell phone was later found on a garage window sill.
Plaintiff was taken to a hospital for treatment; defendant was located at his
estranged wife's home sometime later, having left the scene.
Plaintiff described at least two prior incidents. In one, while dining with
her daughter and her daughter's friends, defendant deliberately poured a beer
over her head. On March 24, 2018, while the two were staying overnight at a
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motel, she and defendant began to argue. While they were fighting, defendant
began to cry, strike plaintiff, and yell, "why do you do this to me, why do you
make me do these things to you? Look what you do to me. Why do you do
this?" Plaintiff testified defendant strangled her during this altercation, and she
escaped, running barefoot into the motel lobby looking for help while defendant
followed, throwing things at her, including the contents of her purse. Although
the criminal charges she earlier filed were still pending when defendant injured
her leg, she had by then dismissed the TRO she had also obtained.
Defendant called three police officers as witnesses, all of whom
essentially corroborated plaintiff's testimony. For example, a Union City officer
testified that on September 14, 2017, he was called to plaintiff's home. Dispatch
informed him that plaintiff's son called 911 to report that he thought he heard
the parties pushing and shoving and was afraid of what might happen to his
mother. The officer who arrived at the scene on the night of the April 2018
incident at issue testified that the neighbor who called police heard and saw
portions of the incident.
Plaintiff's treating physician and orthopedic surgeon also testified.
Plaintiff's knee injuries required surgery after a course of physical therapy and
reduction in swelling from the trauma inflicted on the joint. Plaintiff's doctor
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almost exclusively performed knee surgeries, hundreds a year. When plaintiff
met with him and his office partner, she described the way she incurred the
injury in the same terms as she had described to police, and to which she testified
at trial.
The surgeon stated that plaintiff told him defendant grabbed her leg and
twisted it violently in a figure-four position when she heard the sound of a crack.
He compared the injury to those resulting from wrestling or "kids horsing around
and one falls on the other . . . ." The surgeon also compared it to a PCL tear that
he had seen when a motorcycle fell on a rider stopped at a light. The surgeon
surgically repaired plaintiff's torn PCL. The torn LCL and other muscular
injuries did not require reconstructive surgery.
The judge sustained defense counsel's objection to the surgeon recounting
plaintiff's statement describing how the injury occurred because he had not
included causation in his report. By that juncture, however, the doctor had said,
without eliciting objection, that the injuries were consistent with plaintiff's
description of defendant's assault. On cross-examination, the surgeon repeated
that the physical aspects of the injuries were consistent with plaintiff's
explanation of how her injuries occurred.
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When asked about defendant's expert's disagreement with his opinion,
plaintiff's treating surgeon said that the opinion actually coincided with his own
in that the injury was the product of a "lift and a twist and a bend . . . ." He
expressed surprise that the expert disputed the manner in which the injury was
inflicted, because he treated "knee ligament injuries quite often and [he knew]
that they can be injured in a variety of mechanisms and the one described is very
consistent with the findings." The surgeon explained, while placing his leg in a
figure-four position, that if a person were to fall on him while he held his leg at
that angle, "standing or lying on the ground like these kids who wrestle and hurt
themselves, the injury pattern would be similar." He further agreed the
description plaintiff gave in his office of the way the injury was inflicted was
consistent with her testimony. In fact, after being read plaintiff's testimony, the
doctor said:
This is a little more in depth and in detail[,] but this [is]
how exactly I pictured it, in a few seconds, these
ligaments tear in a matter of nanoseconds. So what
happens is a ligament is actually quite elastic if given
the opportunity but if it's provid[ed] with a large force
that is quick, then it doesn't have the opportunity to
become elastic and it's like a stick and it snaps like a
twig. So a few seconds is all it takes.
Defendant's expert, a board-certified orthopedic surgeon, did not have a
practice specializing in sports-type knee injuries. He disagreed that the injury
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could have been caused by defendant pulling plaintiff's left leg with one hand
while she stood. He believed she must have fallen or "some other mechanism
must have occurred . . . ."
The judge found plaintiff to be a credible witness. He placed the final
April 2018 incident in the context of defendant's "escalating" violence. The
judge further observed that the "attention drawn in this case to the mechanics of
. . . plaintiff's injuries . . . misses the mark." There was a "physical interaction"
between the parties during which "plaintiff experienced pain and heard a
popping sound when the leg was twisted." Thus, she had established "by a
preponderance of the evidence . . . that defendant purposefully grabbed and
intentionally twisted plaintiff's leg causing her to experience pain." He
considered both doctors to be credible, but gave dispositive weight to plaintiff's
surgeon's opinion that the incident caused the injury.
The judge further found defendant committed predicate acts of assault and
harassment. N.J.S.A. 2C:25-19; N.J.S.A. 2C:12-1; N.J.S.A. 2C:33-4. He did
not reach as moot plaintiff's other allegations of kidnapping, criminal restraint,
or terroristic threats. Given the nature of defendant's conduct and the parties'
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history, both prongs were met under Silver v. Silver.3 In addition to granting
the FRO, the judge fined defendant $250. Without explanation, he denied
counsel fees.
On reconsideration, the judge acknowledged he failed to provide findings
of fact and conclusions of law regarding plaintiff's request for counsel fees and
costs, compensatory damages, and punitive damages. After reviewing plaintiff's
counsel's affidavit, he reduced the amount requested only to those charges
generated by the domestic violence proceedings, as opposed to the criminal
proceedings. He granted $31,978 in fees and compensatory damages of $614.93.
In his reconsideration decision, the court observed that "defendant did not
deny the acts attributed to him by this [c]ourt." Given the history of "wrongful
and volatile conduct by [d]efendant towards . . . [p]laintiff," in front of plaintiff's
children, in public, and in private settings, he concluded the acts displayed "the
requisite element of evil mindedness or bad motive[,]" relying on Sielski v.
Sielski, 254 N.J. Super. 686, 690 (Ch. Div. 1992). He found defendant
deliberately inflicted serious injury on plaintiff, and left her in that condition as
3
387 N.J. Super. 112, 125-27 (App. Div. 2006) (holding that to qualify for an
FRO, a plaintiff must first prove by a preponderance of the evidence that a
predicate act of domestic violence occurred and then establish that an FRO is
necessary to prevent further domestic violence).
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he fled the scene. Taking into consideration the "severe and extensive physical
injury" to plaintiff, the court assessed $4000 in punitive damages pursuant to
Act.
Now on appeal, defendant raises the following points:
POINT I
THE TRIAL COURT ERRED IN ALLOWING
HEARSAY EVIDENCE FROM THE POLICE
REPORT ON THE APRIL 27, 2018 INCIDENT.
POINT II
THE TRIAL COURT ERRED IN ALLOWING
[G.D.'S] EXPERT MEDICAL WITNESS TO
TESTIFY AS TO HIS OPINION CONCERNING
CAUSATION ISSUES NOT INCLUDED IN THE
PRETRIAL EXPERT REPORT DISCLOSED TO THE
DEFENSE.
POINT III
THERE WAS INSUFFICIENT EXPERT MEDICAL
TESTIMONY TO EXPLAIN OR CORROBORATE
[G.D.'S] STORY, AND SHE FAILED TO CARRY
HER BURDEN OF PROOF.
POINT IV
THE TRIAL COURT ERRED IN ITS BENCH ORDER
BY MATERIALLY MISCHARACTERIZING DR.
NASAR'S EXPERT MEDICAL TESTIMONY AND
MAKING AN ADVERSE INFERENCE FROM
[U.D.'S] FAILURE TO TESTIFY.
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POINT V
[G.D.] OFFERED NO NEW EVIDENCE IN HER
MOTION FOR RECONSIDERATION, AND IN
AWARDING ATTORNEY'S FEES AND PUNITIVE
DAMAGES THE TRIAL COURT RELIED UPON
FACTUAL FINDINGS NOT IN THE RECORD,
PARTICULARLY [G.D.'S] UNSUPPORTED
ALLEGATIONS OF PRIOR ACTS OF DOMESTIC
VIOLENCE AND THE LACK OF EVIDENCE OF
[U.D.'S] WANTON CONDUCT.
I.
Defendant first asserts the judge erred in admitting hearsay—specifically,
the testimony proffered when a Sayreville Police Officer was cross-examined.
The somewhat confused record reflects that the judge sustained defense
counsel's objection to the officer's repetition of statements the neighbor made to
police. When plaintiff's counsel reframed the question in terms of what the
officer "learned," the judge overruled the objection. The officer continued that
the neighbor "went outside and saw through a window some type of
altercation[;]" counsel again objected. That objection was overruled.
We agree that the material was hearsay. See N.J.R.E. 801(c) (hearsay is
an out-of-court statement offered to prove the truth of the matter asserted).
Hearsay is inadmissible absent an exception. N.J.R.E. 802.
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Arguably, the neighbor's description of what he saw and heard constitutes
an excited utterance. See N.J.R.E. 803(c)(2). It is unclear from the record,
however, if it can be characterized in that fashion, but, in any event, its
admission was at worst harmless error. See R. 2:10-2. The comments did
nothing more than corroborate what plaintiff had already described, and upon
which she was extensively cross-examined. Plaintiff was uninjured when she
arrived. She suffered from a significant injury when she left. The officer's
limited responses did not lead to a result that the trial court would not have
otherwise reached. See State v. Prall, 231 N.J. 567, 581 (2018).
II.
For purposes of our discussion, we combine defendant's point two through
a portion of point four into one section. As the judge accurately observed, the
focus on "the mechanics of the plaintiff's injuries . . . misses the mark."
Trial courts have broad discretion in evidentiary matters. Brenman v.
Demello, 191 N.J. 18, 31 (2007); State v. Sands, 76 N.J. 127, 140 (1978). A
decision should "stand unless so wide of the mark that a manifest denial of
justice resulted." Ratner v. General Motors Corp., 241 N.J. Super. 197, 202
(App. Div. 1990). Family courts are also afforded broad discretion because they
"possess special expertise in the field of domestic relations." Cesare v. Cesare,
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154 N.J. 394, 412 (1998). Credibility determinations should stand unless
"'clearly mistaken' or 'wide of the mark'" as well. N.J. Div. of Youth and Fam.
Servs. v. E.P., 196 N.J. 88, 104 (2008).
The same abuse of discretion standard governs the admission or exclusion
of expert testimony. In re Accutane Litigation, 234 N.J. 340, 391-92 (2018). It
follows that discretion includes the scope of direct and cross-examination. See
Townsend v. Pierre, 221 N.J. 36, 52-53 (2015) (holding the trial court has the
ability to limit testimony on direct); Prioleau v. Kentucky Fried Chicken, Inc.,
434 N.J. Super. 558, 587 (App. Div. 2014) (holding trial courts have discretion
to limit expert testimony on cross-examination). A judge is similarly vested
with the discretion to assess the weight of and evaluate those opinions. N.J. Div.
of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 93 (App. Div. 2013). The
judge may accept all, none, or just a portion of an expert's opinion. E & H Stahl
v. PSEG Fossil, LLC, 455 N.J. Super. 12, 29-30 (App. Div. 2018).
Additionally, "a treating doctor testifying as a fact witness is permitted to
testify about the cause of the patient's . . . injury, because causation is an
essential part of diagnosis and treatment." Parker v. Poole, 440 N.J. Super. 7,
17-18 (App. Div. 2015) (citing Stigliano by Stigliano v. Connaught Lab., 140
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N.J. 305, 314 (1995)). Indeed, a treating physician's testimony cannot be
artificially categorized as fact or opinion. Ibid. It is both.
Strictly speaking, therefore, plaintiff's surgeon was not testifying in a
manner that required him to phrase his conclusions, contrary to defendant's
position, to a reasonable medical probability. The surgeon relied on plaintiff's
description of the events in his diagnosis, and found the injuries revealed during
the operation corroborated her explanation. He too was found to be a credible
witness, and the judge's acceptance of his testimony to explain causation was a
reasonable exercise of discretion.
Plaintiff's credibility was not undermined by the minor discrepancies
elicited during cross-examination. Defendant's expert's testimony in that vein
corroborated plaintiff's treating physician's testimony. Events happened
quickly, plaintiff fell during the altercation, and she could not be expected to
precisely pinpoint the moment and infliction of force which caused the PCL and
LCL injuries. Thus, the judge's admission and weighing of the experts'
testimony were not an abuse of discretion. When joined with her testimony, the
medical proofs established a violation of the Act which warranted issuance of
the FRO by a preponderance of the credible evidence.
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III.
The judge did not say that defendant did not testify at trial. For him to
have done so, or relied upon defendant's silence in reaching his determination,
would have been improper. See H.E.S. v. J.C.S., 175 N.J. 309, 331 (2003) (a
court may not make an unfavorable inference due to a defendant's silence in a
domestic violence final hearing). He specifically said he drew no inference from
defendant's silence. In his reconsideration written decision, the judge did
mention that defendant "did not deny the acts attributed to him by this [c]ourt."
But that one sentence does not mean the judge violated established precedent.
Nor does it nullify the judge's detailed discussion of the proofs and the
law in the reconsideration decision as well as his earlier ruling. We have no
reason after our review of the record, which the judge thoroughly canvassed, to
conclude that the judge took defendant's silence into account when making his
decision.
IV.
"[F]ee determinations by trial courts will be disturbed only on the rarest
of occasions, and then only because of a clear abuse of discretion." Packard-
Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001); Rendine v. Pantzer, 141
N.J. 292, 317 (1995). Defendant disputes the judge's award of counsel fees as
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well as punitive damages. Defendant's attack, however, is premised on his
argument that plaintiff was not believable and therefore did not meet her burden
of proof. Having found plaintiff credible, the judge had ample basis for also
finding that defendant assaulted her in the manner she described. We see
nothing in the record that would cause us to set aside that finding. A trial court's
credibility determination stands "unless 'clearly mistaken' or 'wide of the mark.'"
E.P., 196 N.J. at 104. Plaintiff's credible narrative established a history of
domestic violence and the final serious assault.
The Act authorizes the judge's award of counsel fees. N.J.S.A. 2C:25-
29(b)(4). He reviewed counsel's submission and reduced the amount of fees
requested based on defendant's objection that some charges included work
counsel performed unrelated to the hearing. The award came only after the
judge's detailed review of counsel's submission and a discussion of the relevant
factors. See McGowan v. O'Rourke, 391 N.J. Super. 502, 507-08 (App. Div.
2007). The fee award should not be disturbed, as no abuse of the judge's
discretion occurred. See Collier, 167 N.J. at 444.
The Act similarly allows for the award of punitive damages. N.J.S.A.
2C:25-29(b)(4). Such damages are appropriate where a court finds, as it did
here, that the actor's conduct was motivated by "actual malice or accompanied
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by a wanton and willful disregard of persons who foreseeably might be harmed
by those acts or omissions." N.J.S.A. 2A:15-5.12(a). In light of the judge's
conclusion that plaintiff's testimony was credible, and that defendant had a
history of domestic violence culminating in plaintiff's crippling injury, the
judge's findings with regard to punitive damages were also warranted.
Affirmed.
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