A.M.M. v. A.M.U. ( 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NOT FOR PUBLICATION WITHOUT THE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-0687-22
A.M.M.,
Plaintiff-Respondent,
v.
A.M.U.,1
Defendant-Appellant.
_______________________
Submitted March 5, 2024 – Decided April 15, 2024
Before Judges Mayer and Paganelli.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FV-08-1326-22.
Mario J. Persiano, III, attorney for appellant.
Cordry Hartman, LLC, attorneys for respondent
(Frances Ann Hartman, on the brief).
PER CURIAM
1
We use initials to protect the confidentiality of the parties. R. 1:38-3(d)(10).
Defendant appeals from a July 7, 2022 final restraining order (FRO)
entered against him and in favor of plaintiff, pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Because the trial
judge made appropriate credibility determinations, his factual findings are
supported by substantial credible evidence, and those facts were correctly
applied to the law, we affirm.
We glean the facts and procedural history from the trial record. On April
11, 2022, plaintiff obtained a temporary restraining order (TRO) against
defendant following an incident that occurred between them on that day. She
alleged the predicate act of assault under N.J.S.A. 2C:12-1. She claimed:
[S]he was in defendant's room in his residence and a
verbal argument ensued over issues with infidelity.
Plaintiff stated during this argument def[endant] began
to choke her. Pla[intiff] stated def[endant] placed his
hand around her neck and had her on her back on his
bed. Pla[intiff] believes she was choked for
approximately twenty seconds and she stated that she
felt dizzy as he obstructed her airway but did not lose
consciousness. Pla[intiff] advised that she was able to
scream for him to get off her and had to physically push
him do she could get up from the bed.
Plaintiff also described a prior history of domestic violence that involved "one
other time [d]ef[endant] had [his] hand around pla[intiff's] neck and choked her,
unreported."
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On May 12, 2022, plaintiff amended the TRO to include further
allegations of the parties' history of domestic violence to include:
10-30-21 def[endant] slapped pla[intiff] in face [and]
left a bruise. [11-20]-21 def[endant] slapped pla[intiff]
[and] left a red mark. 1-21-22 def[endant] slapped
pla[intiff] in the face [and] left a red mark. 1[-]27[-]22
– 1[-]28[-]22 def[endant] called [pla]intiff a whore,
stupid, and other awful names. 1-27-21 def[endant]
threw pla[intiff] into a wall [and] choked her. 10-24-
21 def[endant] grabbed [and] bit pla[intiff] on the
shoulder, neck, chest [and] legs. He caused pain and
bruising. Def[endant] said he was a lion and pla[intiff]
was his prey.
The matter was tried over two days, June 16 and July 7, 2022. Plaintiff
and her mother testified on her behalf. Defendant did not testify, but his father
and stepmother testified on his behalf.
Plaintiff testified that her and defendant's dating relationship included
"sadomasochistic type sexual behavior." She admitted they "engaged in rough
sex" including "consensual choking." Some of these activities left marks and
bruises.
Plaintiff testified she loaned defendant money. She explained when she
sought repayment, he would avoid her. Plaintiff asked defendant to hang-out,
intending to ask him for the money. They agreed to meet on April 11, 2022, at
defendant's house. Once at the house, they went to his bedroom. Sitting on
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opposite ends of his bed, they discussed their relationship and his desire for them
to continue their relationship. Defendant moved closer to plaintiff, caressing
her leg and touching her back and arms. Plaintiff tried to move his hand away
and told him she was uncomfortable and did not want to have sex. Then
defendant lunged at her, grabbed her throat, and pushed her back on the bed.
Plaintiff described defendant "squeezing" her throat and her "struggling to
breathe."
The trial judge found plaintiff to be "overall a credible witness." He
observed she "answered directly under cross examination" and "never seemed
particularly evasive in any way." The judge noted "[h]er displays of emotion
were few and far between, but [he] thought appropriate to the occasion."
In addition, the trial judge reviewed pictures of plaintiff taken on and a
few days after the April 11, 2022 incident. The judge described the pictures as
depicting: (1) discoloration and darkness of plaintiff's right eye; (2) finger
marks on the left side of plaintiff's neck; and (3) "reddish purple" bruising on
the left side of plaintiff's neck. The judge concluded "the marks [we]re
consistent with plaintiff's testimony [of] a choking act by" defendant.
The trial judge stated that he expected defendant to testify. The judge
noted defendant did not have a "burden" and was not required to "disprove" the
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case. Moreover, he observed defendant's testimony was protected under the
PDVA and could not be used except in limited circumstances in a criminal trial.
Nonetheless, the judge explained he reasonably expected defendant to "explain,"
"clarify," or "contradict" plaintiff's evidence, and he declined to do so. Under
the circumstances, the judge noted he could take an adverse inference against
defendant based on his choice not to testify.
The trial judge found defendant committed the predicate act of assault.
The judge determined defendant "grab[bed plaintiff] by the throat, squeez[ed]
to the point where [he] saw evidence of injury around the eyes and the left side
of her throat, and cut[] off her air supply." The judge credited plaintiff's
testimony wherein she "absolutely den[ied]" anything sexual about the April 11
incident.
The judge considered whether there were prior acts of domestic violence.
He noted the evidence revealed consensual "slapping"; "rough sex"; choking of
plaintiff; and "distasteful" name calling. He concluded he could not "make any
affirmative finding" that there was a prior history of domestic violence.
The trial judge found plaintiff required the protection of an FRO. The
judge determined defendant's choking of plaintiff, on April 11, 2022, was an act
of "dominance and control . . . [that] the [PDVA] was geared to prevent." The
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judge determined, unequivocally, the FRO was necessary considering the
"assault by strangulation."
On appeal, defendant argues: (1) his due process rights were violated
when his attorney advised him not to testify because of a parallel criminal
prosecution; and (2) the trial judge erred in his application of the factors under
N.J.S.A. 2C:25-19(a)(1) through (6). We disagree.
Our review of a trial judge's factual findings is limited. Cesare v. Cesare,
154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court
are binding on appeal when supported by adequate, substantial, credible
evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65
N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special
jurisdiction and expertise in family matters, [we] . . . accord deference to family
court fact[-]finding." Id. at 413. Such deference is particularly proper "when
the evidence is largely testimonial and involves questions of credibility." Id. at
412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). On
the other hand, we will review questions of law determined by the trial court de
novo. Smith v. Millville Rescue Squad, 225 N.J. 373, 387 (2016) (citing
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)).
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"We view the task of a judge considering a domestic violence complaint,
where the jurisdictional requirements have otherwise been met, to be two-fold."
Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006).2 "First, the judge
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." Ibid. "In performing th[is] function, the [PDVA]
. . . require[s] that acts claimed by a plaintiff to be domestic violence . . . be
evaluated in light of the previous history of violence between the parties." Id.
at 125-26 (citations and internal quotations omitted).
"The second inquiry, upon a finding of the commission of a predicate act
of domestic violence, is whether the court should enter a restraining order that
provides protection for the victim." Id. at 126; see also J.D. v. M.D.F., 207 N.J.
458, 475-76 (2011) (quoting N.J.S.A. 2C:25-29(b)) (explaining that an FRO
should not be issued without a finding that relief is "necessary to prevent further
abuse"). "[T]he Legislature did not intend that the commission of one of the
enumerated predicate acts of domestic violence automatically mandates the
entry of a domestic violence restraining order." Id. at 126-27 (citation omitted).
2
The parties stipulated to a "dating relationship," N.J.S.A. 2C:25-19(d); and the
trial court's jurisdiction under the PDVA.
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"[T]he guiding standard is 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 –
29[(]a[)](6)." Id. at 127. Because some factors may be irrelevant in a given
circumstance, "N.J.S.A. 2C:25-29(a) does not mandate that a trial court
incorporate all of those factors into its findings when determining whether or
not an act of domestic violence has been committed." Cesare, 154 N.J. at 401-
02.
Moreover, "one sufficiently egregious action [may] constitute domestic
violence . . . , even with no history of abuse between the parties." Id. at 402;
see also A.M.C. v. P.B., 447 N.J. Super. 402, 417 (App. Div. 2016) (citation
omitted) ("When the predicate act is an offense that inherently involves the use
of physical force and violence, the decision to issue an FRO 'is most often
perfunctory and self-evident.'").
The PDVA provides:
If a criminal complaint arising out of the same incident
which is the subject matter of a complaint brought
under [the PDVA] has been filed, testimony given by
the plaintiff or defendant in the domestic violence
matter shall not be used in the simultaneous or
subsequent criminal proceeding against the defendant,
other than domestic violence contempt matters and
where it would otherwise be admissible hearsay under
the rules of evidence that govern where a party is
unavailable.
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[N.J.S.A 2C:25-29(a).]
"A domestic violence complaint is civil in nature." M.S. v. Millburn
Police Dept., 197 N.J. 236, 248 (2008) (citing Cesare, N.J. 154 at 400). In civil
actions, a failure of a party to testify can lead to a negative inference. Duratron
Corp. v. Republic Stuyvesant Corp., 95 N.J. Super. 527, 532 (App. Div. 1967).
Moreover, given the civil nature of these proceedings, a claim of ineffective
assistance of counsel, which applies in criminal cases based upon the Sixth
Amendment right to counsel in such cases, Strickland v. Washington, 466 U.S.
668, 687 (1984), is inapplicable.
Defendant argues the trial judge's "failure to conduct a more thorough
analysis and apply N.J.S.A. 2C:15-29(a)(1) through (6) amounts to an abuse of
discretion in a case such as this where plaintiff testified that the parties would
leave marks on each other during sexual activity." We disagree.
Here, the judge relied on plaintiff's testimony, which he found to be credible;
a negative inference against defendant for his failure to testify; and the photographic
evidence; in finding that defendant assaulted plaintiff under the PDVA. We defer to
the judge's factual findings and credibility determinations in a bench trial. Having
reviewed the record, including the judge's credibility findings, we are satisfied there
was ample credible evidence in the record to support the judge's conclusion that
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defendant committed the predicate act of assault. Moreover, we are convinced the
judge's determination that plaintiff required an FRO was amply supported by
credible evidence. Given the judge's finding of "assault by strangulation," the entry
of an FRO was "self-evident" and "perfunctory" considering the "egregious" nature
of defendant's action.
Any remaining arguments raised by defendant are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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