M.D. VS. C.W. (FV-12-1472-20, 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NOT FOR PUBLICATION WITHOUT THE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-3249-19
M.D.,1
Plaintiff-Respondent,
v.
C.W.,
Defendant-Appellant.
_______________________
Submitted February 24, 2021 – Decided April 5, 2021
Before Judges Rose and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-1472-20.
The DeTommaso Law Group, LLC, attorneys for
appellant (Michael J. DeTommaso, on the briefs).
Law Offices of Jonathan F. Marshall, attorneys for
respondent (Brett M. Rosen, on the brief).
1
We use initials for the parties to protect plaintiff's confidentiality. R. 1:38-
3(d)(10).
PER CURIAM
Defendant C.W.2 appeals from a March 4, 2020 final restraining order
(FRO) issued in favor of her former boyfriend, plaintiff M.D., pursuant to the
Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We
affirm.
I.
We glean the following facts from the testimony elicited at the FRO
hearing. Plaintiff and defendant were in a dating relationship and were
household members living in an apartment until January 26, 2020, when plaintiff
moved out to live with his parents. Defendant testified that plaintiff ended their
relationship on December 30, 2019, but the parties intended to reside together
until the expiration of their joint lease in March 2020.
On January 26, 2020, while the parties were driving on the Turnpike,
defendant testified that while plaintiff was driving, she informed him she was
going on a date that night. Plaintiff testified he became upset because he thought
they were moving on too quickly and should wait until they both vacated the
2
We refer to the parties as their names appear in the caption on appeal. The
Family Part judge referred to defendant as "plaintiff" and plaintiff as
"defendant" prior to rendering his opinion consistent with the order in which the
complaints under the PDVA were filed.
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apartment to pursue other relationships. Defendant claimed plaintiff began to
drive erratically, and plaintiff denied this.
After returning to their apartment, defendant held up a bottle, threatening
to "punch" and "kill" plaintiff. He testified that defendant became very violent
and angry, proceeding to get in his face. While waiving three fingers in
plaintiff's face, defendant told him that he "doesn't get to tell her what to do."
Plaintiff stood up and tried to calm defendant down, but she slapped him across
the face with such force that his eyeglasses flew off. She then took a letter
opener, placed it against plaintiff's chest, and told him, "I'm going to kill you."
After putting down the letter opener, defendant began "swinging" at
plaintiff. Ultimately, both parties fell to the ground; plaintiff held d efendant's
wrists to stop her from hitting him. Defendant struck plaintiff "multiple times."
When defendant got up, she grabbed the collar of plaintiff's shirt and almost
"ripped all the way through" as he tried to run into the bedroom and close the
door for his safety. Defendant grabbed plaintiff's guitar and attempted to break
it while he held it. He dropped the guitar and while in the bedroom, defendant
pushed or kicked the door open, and then kicked plaintiff from behind as he
headed towards the closet.
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Plaintiff told defendant to "get away" from him, and he pushed her onto
the bed. Defendant testified plaintiff told her to give her date a "blow job," get
an STD, and die. From the edge of the bed, defendant kicked plaintiff in his
chest, arms, and legs. She called him a "pussy" and said he had a "small dick."
Defendant called the police claiming plaintiff attacked her. Plaintiff testified he
did not want to apply for a temporary restraining order (TRO) that day and
declined to file criminal charges against defendant because he "didn't want her
to get in trouble," and "didn't want anything bad to happen to her." Because he
was in a state of "panic," plaintiff did not tell the police about the letter opener
incident. After observing plaintiff covered in red marks on his torso and chest,
and a dark, red burn on his neck, the police arrested defendant on January 26,
2020.
After the January 26, 2020 incident, plaintiff sent defendant text messages
on January 29 and 30, 2020, inquiring as to how she was feeling and stating they
"need to talk." Plaintiff testified the parties had "to initiate conversation" about
the expiration of their apartment lease and moving out. Defendant did not
respond to plaintiff's text messages. Prior to the entry of the February 4, 2020
TRO, plaintiff returned to the apartment during his lunch hour from work on
more than one occasion to retrieve his personal possessions when defendant was
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not there. He testified that if defendant was there or showed up, he "probably"
would have called the police.
On February 4, 2020, defendant obtained a TRO against plaintiff and
several weeks later, plaintiff obtained a cross-TRO against defendant on
February 25, 2020. He amended his cross-TRO two days later and added
additional instances of prior domestic violence between the parties.
At trial, plaintiff testified and gave his account of the January 26, 2020
incident. In terms of the prior history of domestic violence between the parties,
plaintiff testified that in July 2019, defendant repeatedly punched him after she
had been drinking. He also testified about an incident that occurred in
November 2019 when defendant threw a glass at him, which he disclosed to his
psychiatrist. According to plaintiff, he was treating with a psychiatrist for
anxiety and depression.
Plaintiff sought to introduce his psychiatrist's notes from his November 2,
2019 session into evidence under Rule 803(c)(3), "Then-Existing Mental,
Emotional, or Physical Condition," Rule 803(c)(4), "Statements for Pur poses of
Medical Diagnosis or Treatment," and Rule 803(c)(6), "Records of a Regularly
Conducted Activity." The psychiatrist did not testify at trial and no custodian
of records appeared to authenticate the doctor's notes as being kept in the
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ordinary course of business. The judge inquired of plaintiff's counsel whether
an adjournment was requested to have someone appear from the doctor's office
to testify. Plaintiff's counsel agreed to do that, but defendant's counsel and
defendant did not want an adjournment. The judge admitted the psychiatrist's
record into evidence. Plaintiff testified that his psychiatrist noted in his record
that defendant was physically aggressive towards him that day and on prior
occasions.
In December 2019, defendant became angry at plaintiff, and he testified
she slammed a keyboard against the wall. Plaintiff did not call the police
following these incidents because he did not want anything to happen to her, and
he feared retaliation because she is a "violent person." The record also shows
that defendant weighed fifty pounds more than plaintiff.
Officer Michael Kelly testified upon arriving at the scene, that plaintiff
was "shirtless," "very visibly distraught," and "covered in red marks along his
torso and chest." Officer Kelly also stated plaintiff had a "dark red burn along
his neck" and "a couple of scratch marks along the upper chest." According to
Officer Kelly, defendant had "no sign of injury on her."
Following the close of evidence, the Family Part judge rendered a
thorough oral decision. The judge summarized the evidence presented regarding
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domestic violence and analyzed the testimony pursuant to the framework
established under Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006).
Based on this assessment, the judge found defendant did not satisfy her burden
of proof by a preponderance of the credible evidence as to the predicate acts of
harassment, N.J.S.A. 2C:33-4(b); assault, N.J.S.A. 2C:12-1(1); or terroristic
threats, N.J.S.A. 2C:12-3(a). Accordingly, the judge dismissed defendant's TRO
and domestic violence complaint against plaintiff.
As to plaintiff's complaint, the judge found plaintiff was "far more
credible as a witness" than defendant, and Officer Kelly to be "extremely
credible." The judge determined that plaintiff satisfied his burden of proof as to
the predicate acts of harassment, assault, and terroristic threats, satisfying the
first Silver prong. After addressing the prior history of domestic violence
between the parties in conjunction with the predicate acts proven by plaintiff,
the judge analyzed the second Silver prong. The judge concluded an immediate
danger existed in light of the "severity of the assault" by defendant against
plaintiff on January 26, 2020, and the July 2019 incident involving alcohol. As
such, plaintiff required an FRO to protect him "from further abuse at the hand"
of defendant. This appeal followed.
On appeal, defendant argues:
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(1) the judge abused his discretion in concluding
plaintiff satisfied his burden under the second prong of
Silver because the evidence and testimony did not
support a finding he was in immediate danger of her;
and
(2) the judge abused his discretion in concluding
plaintiff had satisfied his burden under the second
prong of Silver because the evidence relied upon to
establish a prior history of domestic violence
constituted inadmissible hearsay.
Defendant does not appeal the dismissal of her TRO and domestic
violence complaint.
II.
Our review of the Family Part judge's decision to enter a FRO in a
domestic violence matter is limited. Peterson v. Peterson, 374 N.J. Super. 116,
121 (App. Div. 2005). "A reviewing court is bound by the trial court's finding s
'when supported by adequate, substantial, credible evidence.'" Ibid. (quoting
Cesare v. Cesare, 154 N.J. 394, 412 (1998)). "This deferential standard is even
more appropriate 'when the evidence is largely testimonial and involves
questions of credibility.'" L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App.
Div. 2011) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117
(1997)). "Reversal is warranted only when a mistake must have been made
because the trial court's factual findings are 'so manifestly unsupported by or
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inconsistent with the competent, relevant and reasonably credible evidence as to
offend the interests of justice[.]'" Elrom v. Elrom, 439 N.J. Super. 424, 433
(App. Div. 2015) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65
N.J. 474, 484 (1974)). However, we review de novo "the trial judge's legal
conclusions, and the application of those conclusions to the facts[.]" Ibid.(quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
In adjudicating a domestic violence case, the trial judge has a "two-fold"
task. Silver, 387 N.J. Super. 125. The judge must first determine whether the
plaintiff has proven, by a preponderance of the evidence, that the defendant
committed one of the predicate acts referenced in N.J.S.A. 2C:25-19(a) as
conduct constituting domestic violence. Id. at 125-26. The judge must construe
any such acts in 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); see N.J.S.A. 2C:25-29(a)(1).
A finding of harassment requires proof that the defendant acted "with
purpose to harass." N.J.S.A. 2C:33-4; see Silver, 387 N.J. Super. at 124.
Although a purpose to harass may, in some cases, be "inferred from the
evidence," and may be informed by "[c]ommon sense and experience[,]" a
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finding by the court that the defendant acted with a purpose or intent to harass
another is integral to a determination of harassment. State v. Hoffman, 149 N.J.
564, 577 (1997).
We note that purposeful conduct "is the highest form of mens rea
contained in our penal code, and the most difficult to establish." State v.
Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). Its establishment requires
proof, in a case such as this, that it was the actor's "conscious object to engage
in conduct of that nature or to cause [the intended] result." N.J.S.A. 2C:2 -
2(b)(1). A plaintiff's assertion that the conduct is harassing is not sufficient.
J.D. v. M.D.F., 207 N.J. 458, 484 (2011). Further, a "victim's subjective reaction
alone will not suffice; there must be evidence of the improper purpose." Id. at
487.
When deciding the issues of intent and effect, we are mindful of the fact
that
harassment is the predicate offense that presents the
greatest challenges to our courts as they strive to apply
the underlying criminal statute that defines the offense
to the realm of domestic discord. Drawing the line
between acts that constitute harassment for purposes of
issuing a domestic violence restraining order and those
that fall instead into the category of "ordinary domestic
contretemps" presents our courts with a weighty
responsibility and confounds our ability to fix clear
rules of application.
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[Id. at 475 (citation omitted).]
"[T]he decision about whether a particular series of events rises to the level of
harassment or not is fact-sensitive." Id. at 484.
As to harassment, the judge reasoned that plaintiff proved the elements
under N.J.S.A. 2C:33-4(b) because there was "striking, kicking and shoving" by
defendant, specifically slapping plaintiff across the face, causing a scratch near
his right temple. Calling plaintiff a "pussy" and saying he has a "small dick"
were found to be domestic contretemps by the judge and did not constitute a
separate act of harassment.
Based on his assessment, the judge also found that a simple assault
occurred, contrary to N.J.S.A. 2C:12-1(a)(1), as a result of defendant's punches
to plaintiff's "arms, head and torso," and kicking "him in the chest while she was
on the bed." In pertinent part, the assault statute provides a person is guilty of
assault if he or she "attempts to cause or purposely, knowingly or recklessly
causes bodily injury to another." N.J.S.A. 2C:12-1(a)(1). The judge determined
defendant's actions were "done purposely and knowingly under the assault
statute."
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The judge also credited plaintiff's testimony over that of defendant before
concluding she committed the predicate act of terroristic threats. A person
commits the act of terroristic threats if a person
threatens to commit any crime of violence with the
purpose . . . to put [that other person] in imminent fear
of death under circumstances reasonably causing the
victim to believe the immediacy of the threat and the
likelihood that it will be carried out.
[N.J.S.A. 2C:12-3.]
Proof of terroristic threats must be assessed by an objective standard.
State v. Smith, 262 N.J. Super. 487, 515 (App. Div. 1993). "The pertinent
requirements are whether: (1) the defendant in fact threatened the plaintiff; (2)
the defendant intended to so threaten the plaintiff; and (3) a reasonable person
would have believed the threat." Cesare, 154 N.J. at 402.
Here, in the face of the "severity of the altercation," the judge determined
that defendant telling plaintiff she was going to kill him was said "with the
purpose to terrorize him," as defined in N.J.S.A. 2C:12-3(a). We are satisfied
defendant's actions met these requirements and qualified as terroristic threats. 3
3
Plaintiff also pled criminal mischief as a predicate act in his complaint, but
the judge did not address criminal mischief in his opinion. Since plaintiff
needed only to prove that one predicate act set forth in N.J.S.A. 2C:25-19(a)
occurred, we nonetheless affirm the FRO. Silver, 387 N.J. Super. at 125; Cesare,
154 N.J. at 402.
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Given our deferential standard of review, we discern no basis to disturb the
judge's findings as to harassment, assault, and terroristic threats.
If a predicate offense is proven, the judge must then assess "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 (6), to protect the victim from an immediate danger
or to prevent further abuse." J.D., 207 N.J. at 475-76 (quoting Silver, 387 N.J.
Super. at 127). The factors which the court should consider include, but are not
limited to:
(1) The previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;
(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the plaintiff and
defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the
protection of the victim's safety; and
(6) The existence of a verifiable order of protection
from another jurisdiction.
[N.J.S.A. 2C:25-29(a).]
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Here, the judge properly considered and permitted plaintiff's testimony on
prior acts of domestic violence and addressed the six statutory factors set forth
in N.J.S.A. 2C:25-29(a). Based upon the substantial credible evidence in the
record, the judge found "the existence of immediate danger" posed by defendant
to plaintiff. Defendant's conduct was not an isolated incident based on plaintiff's
credible testimony that defendant assaulted him in the recent past. We discern
no abuse of discretion in the issuance of the FRO for plaintiff's protection.
Defendant's argument that the judge abused his discretion in concluding
plaintiff satisfied his burden under the second prong of Silver because the
evidence relied upon—the psychiatrist's record—constituted inadmissible
hearsay is rejected. In his opinion, the judge highlighted that he "had not
considered anything" in the psychiatrist's record, "other than the recitation of
[plaintiff's] own statements to his mental health professional" relative to the
November 2019 incident. Moreover, defendant and her counsel declined the
opportunity for an adjournment to have the psychiatrist or the custodian of
records testify. Therefore, we discern no violation of any evidence rule and
there was no resulting prejudice to defendant. The judge's determination that an
FRO was necessary to protect plaintiff was well-founded.
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In light of our decision, we need not address plaintiff's argument that
defendant's appeal was filed beyond the forty-five-day time limit set forth in
Rule 2:4-1(a).
Affirmed.
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