J.L.A. v. C.J.A. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-3690-21
J.L.A.,
Plaintiff-Respondent,
v.
C.J.A.,
Defendant-Appellant.
_________________________
Submitted November 29, 2023 – Decided January 4, 2024
Before Judges Firko and Susswein.
On appeal from the Superior Court of New Jersey,
Family Part, Cape May County, Docket No.
FV-05-0554-22.
Tonacchio, Spina & Compitello, attorneys for appellant
(Jeremy Stephen Price and Stephen R. Cappetta, on the
brief).
Respondent has not filed a brief.
PER CURIAM
C.J.A.1 appeals from the final restraining order (FRO) entered against him
on July 19, 2022, pursuant to the Prevention of Domestic Violence Act (PDVA),
N.J.S.A. 2C:25-17 to -35. C.J.A. and J.L.A. are father and son.2 After
convening trial on their mutual requests for FROs, Family Part Judge Joseph A.
Levin found C.J.A. committed the predicate act of harassment and further found
that an FRO was needed to prevent him from committing future acts of domestic
violence. After carefully reviewing the record in light of the applicable legal
principles, we affirm.
Because we affirm substantially for the reasons explained in Judge Levin's
thoughtful and comprehensive oral opinion, we need only briefly summarize the
pertinent facts. J.L.A. testified that during an altercation on June 25, 2022,
C.J.A. made threats to burn the house down with his family inside. J.L.A. also
testified about a prior incident during which C.J.A. strangled him in the presence
of his younger sister.
C.J.A.'s seventeen-year-old daughter testified she called the police
because C.J.A. started an argument with her mother regarding mortgage
1
We use initials to protect the privacy and confidentiality of these
proceedings. R. 1:38-39(d)(10).
2
The trial court also granted C.J.A.'s application for an FRO against his son,
J.L.A. That decision is not before us in this appeal.
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payments. The daughter testified she was scared that if her mother did not talk,
"he would do something to her." She also confirmed her father strangled J.L.A.
in the past so that he was unable to breathe.
C.J.A.'s wife testified she did not think C.J.A. made threats on the day in
question and that she "was so in a zone of trying to just get him to leave." She
testified about past acts of domestic violence, referring to photographs the
family has of punched holes in the walls, kicked doors, and blue paint on the
wall from a soda pack C.J.A. threw at her. She testified that police had come to
the house twice.
C.J.A. testified that on June 25, 2022, because he and his wife were
separating, he asked her about the mortgage payments, but she refused to answer
his question and claimed she would let him know some other day. He admitted
to having a drinking problem in the past. He testified J.L.A. was "out-of-his
mind on drugs" when the strangulation incident occurred. He also said his son
refuses to take his depression and anxiety medication.
Judge Levin found the parties minimized their conduct, especially with
regard to the strangulation incident. The judge nonetheless found J.L.A and his
mother were credible witnesses. The judge took note of C.J.A.'s prior drinking
problem and a recent incident where he took Xanax, which, C.J.A.
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acknowledged he "took too many" and claimed "it was a mistake." The judge
added that C.J.A. did not rebut the prior episode of domestic violence when he
threw a twelve pack of soda at his wife.
Judge Levin found by a preponderance of the evidence C.J.A. committed
all three types of harassment defined in N.J.S.A. 2C:33-4.3 The judge also
considered the six factors for determining whether an FRO is needed, which are
codified in N.J.S.A. 2C:25-29(a)(1) through (6). With respect to the prior
history of domestic violence, the judge found:
3
N.J.S.A. 2C:33-4 provides in pertinent part:
[A] person commits a petty disorderly persons offense
if, with purpose to harass another, he [or she]:
a. Makes, or causes to be made, one or more
communications anonymously or at extremely
inconvenient hours, or in offensively coarse language,
or any other manner likely to cause annoyance or alarm;
[or]
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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In my fact-finding, there's a lengthy prior history of
domestic violence, including physical choking, a
grabbing the [c]ourt credited. Threats, rages, things of
that nature, so there's extensive prior history whose
existence is an immediate danger to [J.L.A.] and the
property. It was—the property was threatened to be
burned down. There's financial circumstances that are
intertwined. It's in the best interest of [J.L.A.] and if
you look at all the factors, well over a preponderance
of the evidence that there’s a need to [issue] . . . a
restraining order . . . to prevent future acts of domestic
violence.
On appeal C.J.A. contends Judge Levin erred in finding by a
preponderance of the evidence that he committed the predicate act of harassment
under N.J.S.A. 2C:33-4. Specifically, C.J.A. contends Judge Levin did not
properly weigh the testimony and erred in finding he acted with the requisite
intent to harass. C.J.A. also contends Judge Levin erred by finding that issuance
of an FRO was necessary to protect against future acts of domestic violence.
We begin our analysis by acknowledging the scope of our review is
limited. Appellate courts "accord substantial deference to Family Part judges,
who routinely hear domestic violence cases and are 'specially trained to detect
the difference between domestic violence and more ordinary differences that
arise between couples.'" C.C. v. J.A.H., 463 N.J. Super. 419, 428 (App. Div.
2020) (quoting J.D. v. M.D.F., 207 N.J. 458, 482 (2011)). Moreover,
"[d]eference is especially appropriate 'when the evidence is largely testimonial
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and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412
(1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
Accordingly, we will not disturb the factual findings of the trial judge unless
"they are so manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the interests of justice."
C.C., 463 N.J. Super. at 428 (quoting S.D. v. M.J.R., 415 N.J. Super. 417, 429
(App. Div. 2010)).
The PDVA authorizes courts to issue restraining orders "after a
finding . . . is made that an act of domestic violence was committed by that
person." N.J.S.A. 2C:25-29(a). An FRO may be issued if two criteria are met.
Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). The plaintiff
seeking the FRO must prove that (1) "one or more of the predicate acts set forth
in N.J.S.A. 2C:25-19(a) has occurred," and (2) that the order is necessary to
protect the plaintiff from "immediate danger or to prevent further abuse." Id. at
127.
"The plaintiff must prove an act of domestic violence by a preponderance
of the evidence." S.D., 415 N.J. Super. at 431 (citing N.J.S.A. 2C:25-29(a)).
Under a preponderance standard, "'a litigant must establish that a des ired
inference is more probable than not. If the evidence is in equipoise, the burden
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has not been met.'" N.J. Div. of Youth & Fam. Servs. v. N.S., 412 N.J. Super.
593, 615 (App. Div. 2010) (quoting Liberty Mut. Ins. Co. v. Land, 186 N.J. 163,
169 (2006)). "The evidence must demonstrate that the offered hypothesis is a
rational inference, that it permits the trier[] of fact to arrive at a conclusion
grounded in a preponderance of probabilities according to common experience."
Ibid. (alteration in original) (quoting In re Estate of Reininger, 388 N.J. Super.
289, 298 (Ch. Div. 2006)).
In Silver, we explained "the commission of any one of the predicate acts
enumerated in [the PDVA] does not automatically warrant issuance of a
domestic violence restraining order. . . ." 387 N.J. Super. at 124. In R.G. v.
R.G., we reaffirmed that principle, explaining "the trial court must find a
predicate offense and also find a basis, upon the history of the parties'
relationship, to conclude the safety of the victim is threatened and a restraining
order is necessary to prevent further danger to person or property." 449 N.J.
Super. 208, 224 (App. Div. 2017); see also Corrente v. Corrente, 281 N.J. Super.
243, 248 (App. Div. 1995) ("[T]he drafters of the law did not intend that the
commission of any one of these acts automatically would warrant the issuance
of a domestic violence order.").
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The second prong of the Silver two-part test "reflects the reality that
domestic violence is ordinarily more than an isolated aberrant act and
incorporates the legislative intent to provide a vehicle to protect victims whose
safety is threatened. This is the backdrop on which defendant's acts must be
evaluated." R.G., 449 N.J. Super. at 229 (citing Corrente, 281 N.J. Super. at
248).
Applying these guiding principles to the matter before us, we conclude
entry of the FRO was appropriate. Judge Levin's oral opinion shows he reviewed
the witness's testimony in detail and made credibility findings. With respect to
the critical question of whether C.J.A. had the intent to harass, Judge Levin
stated:
The [c]ourt here is going to find that by more than a
preponderance of the evidence that [C.J.A.] had the
purpose to harass on June 25th, 2022 when he . . .
threatened to hurt the family and burn the house down,
when you have those types of threats, the [c]ourt's
finding . . . that's a purpose to harass. There's no other
way to interpret those types of comments other than a
purpose to harass. There's no other legitimate, legal,
rational, reasonable way. The [c]ourt's going to find
there's a purpose to harass.
We are unpersuaded by C.J.A.'s argument that the threat to burn the house
down is insufficient to support a finding of harassment in light of our decision
in Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995). C.J.A.'s reliance on
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that case is misplaced. In Peranio, we held that in context, saying "I'll bury you"
did not constitute a predicate act of harassment. Id. at 55. We emphasized there
was no finding that the defendant intended to harass the plaintiff. Ibid. We
noted that to the contrary, "[t]he trial judge appears to have found that defendant
did not make the statement 'I'll bury you' for harassing purposes, but that it was
nevertheless objectively alarming to plaintiff. This finding is insufficient as a
matter of law to meet the statutory standard." Ibid. The present situation is
starkly different. Here, Judge Levin found C.J.A. had the purpose to harass
when he threatened to burn down the house with his family inside.
In sum, we have no basis upon which to second-guess Judge Levin's
findings that C.J.A. committed the predicate act of harassment. Nor is there
reason to disturb Judge Levin's finding that, considering the history of domestic
violence, an FRO was needed to prevent future acts of domestic violence.
Affirmed.
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