J.B. VS. J.D. (FV-15-1966-17, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0025-17T1
J.B.,
Plaintiff-Respondent,
v.
J.D.,
Defendant-Appellant.
_________________________________
Submitted August 7, 2018 – Decided August 10, 2018
Before Judges Sabatino and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County,
Docket No. FV-15-1966-17.
Eli L. Eytan, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Defendant J.D. appeals from two July 17, 2017 orders, which
denied her a Final Restraining Order (FRO) against plaintiff J.B.
and granted J.B. an FRO against J.D., pursuant to the Prevention
of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We
affirm.
The parties are the parents of a child and live in the
residence of defendant's grandmother, along with defendant's
children from a different relationship. On the evening of June
10, 2017, the parties had returned from a family outing. The
parties' testimony at the FRO hearing1 diverged regarding what
happened next.
According to plaintiff, at approximately 8:00 p.m. defendant
left the residence to socialize with her friends. Plaintiff
consumed three shot glasses of scotch, retired to bed at 10:00
p.m., and later awoke at 2:00 a.m. to have a cigarette on the back
porch of the residence. Plaintiff claimed he stepped off the
porch and urinated in the backyard. When plaintiff attempted to
re-enter the residence, he and defendant began a physical
altercation.
Plaintiff testified he re-entered the residence and was
standing in the foyer. He testified defendant was intoxicated,
attempted to push him out of the home, and screamed at him to
leave. Plaintiff testified he agreed to leave, but requested his
debit card, which defendant refused to give him. Instead, she
continued to scream at him, pushed him to the ground two times,
ran into the kitchen, and returned with two knives and attacked
1
Defendant was represented by counsel at the hearing and plaintiff
was self-represented.
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plaintiff. Plaintiff testified defendant stabbed him in the bicep
and cut his forearm, and that he grabbed her wrists in self-defense
to prevent further injury.
According to defendant, plaintiff's abuse of alcohol was a
contentious issue throughout the parties' relationship. Defendant
testified that after the parties returned from the family outing,
they put the children to bed at approximately 8:00 p.m. Defendant
testified she had plans to visit her friends at approximately
10:00 p.m., and needed to use the parties' vehicle. Before
defendant left, plaintiff announced he was taking the vehicle to
the gas station to fuel it. According to defendant, based on the
parties' history, defendant actually intended to consume beer he
had stored in the vehicle; therefore she hid the beer in the trunk.
According to defendant, while she was out, plaintiff had sent
her a text message at 12:11 a.m. stating: "Trust that I am going
to get you back for stealing my beer. That is all. I do love
you. Know that as well. And you're going to stop bitching as
well[;] know that." Defendant testified she returned from visiting
her friends at approximately 12:45 a.m. Plaintiff was asleep, and
defendant laid next to him playing a game on her telephone.
Defendant testified plaintiff awoke at approximately 1:45 a.m.,
and was intoxicated. He stumbled out of bed and onto the back
porch and began urinating on the deck.
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Defendant testified she got out of bed, pushed plaintiff, and
locked him out of the residence. According to defendant, plaintiff
"knocked [a] window in," leaned through the window, and "smacked
the [telephone] out of [defendant's] hand" while she attempted to
call the police. Defendant testified plaintiff was attempting to
enter the residence through the window, and she was pushing him
out. She testified
[a]nd then we were scuffling a little bit.
And he grabbed me by my right bicep[] and my
throat. . . . And he looked me dead in my
eye. He said "[J.D.], don't make me hurt you."
And as he was choking me, he had a knife on
the window sill. And, with my right arm,
'cause it was free from the elbow down, I
grabbed the knife and I stabbed him in the
right bicep.
And then he let go of my throat. But by this
point . . . he was back in the foyer. And
then my dog heard the scuffle, and she charged
into the back room and got between us, and her
going after him, gave me the opportunity to
. . . get out of the back room[.]
Defendant testified plaintiff was the aggressor during the
argument, and that he grabbed her upper arm and tried to choke
her. Defendant adduced photographs purporting to show bruising
to her arm and neck. Defendant denied retrieving a knife from the
kitchen and intentionally stabbing defendant. She testified she
used the knife in self-defense by taking it from the window sill
during the altercation. She claimed "[plaintiff] just kept knives,
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kitchen knives, pocket knives, utility knives, they were
everywhere."2
Defendant called the police, but she was arrested as a result
of the injuries police observed on plaintiff. Following
defendant's arrest and removal from the parties' residence, the
parties exchanged a series of texts. Although we have not been
provided with a copy of it, defendant confirmed on cross
examination that plaintiff sent her a text stating "I'll just stop
texting you; I will see you in court. Tonight looks great for
you." to which defendant responded "You too sweetness, with your
dramatic ass self."
At 6:31 a.m., defendant began texting plaintiff with regard
to the parties' son. Her first text stated: "I know things got
out of hand the other night, but can we be okay and civil enough
to handle [our son] and life without the court involved?"
Plaintiff did not respond to this message. At 8:00 p.m., defendant
sent a final message "Please don't make me call the police. If
you keep ignoring me while you have my son the police will be
knocking on the front door and I will file a motion for custody."
2
Defendant also adduced testimony from her grandmother for
purposes of corroborating her claim that plaintiff kept knives
"everywhere."
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The trial judge rendered an oral decision and subsequently
filed an amplification pursuant to Rule 2:5-1 to clarify her
findings regarding credibility. The judge found plaintiff had
proved assault pursuant to N.J.S.A. 2C:12-1(a)(1), and concluded
defendant had neither proved assault nor harassment pursuant to
N.J.S.A. 2C:33-4(a) or (b), as defendant had argued.
The trial judge found plaintiff to be more credible than
defendant. Because of the diametrically opposite testimony
regarding the incident and the lack of a history of domestic
violence to aid the judge to determine who the aggressor was, the
judge made detailed credibility findings in order to adjudicate
the dispute. The judge stated:
With respect to . . . plaintiff, I did find
his testimony to be direct and
straightforward. There were some small issues
that required clarification. [Defendant's
counsel] points out [Exhibit] D-1, that even
though [plaintiff] said that he was asleep
throughout the night, that D-1 indicates that
he was, in fact, awake an[d] able to send a
text.3
And I do find that that was . . . what the
[c]ourt would characterize as a small
discrepancy. But, otherwise, [plaintiff] was
direct and straightforward. And generally
speaking, he held up under cross examination.
He remained steady and consistent.
. . . .
3
D-1 refers to text messages introduced into evidence on July 11,
2017.
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[P]laintiff's testimony was very detailed
. . . he made excellent eye contact, both on
direct examination and . . . essentially
throughout his entire testimony.
. . . .
[T]he details of the plaintiff's testimony
certainly were corroborative . . . . He was
incredibly detailed as to where he and . . .
defendant were standing when this incident
took place.
The trial judge drew a different conclusion regarding
defendant's credibility. The judge noted defendant's "eye contact
[was] very poor." Importantly, "[t]he [c]ourt also found the
sequence that . . . defendant put forth to be at times confusing,
and certainly . . . did not make sense the same way that . . .
plaintiff's testimony clearly did."
The trial judge found the photos that plaintiff adduced as
evidence of the stab wounds to his bicep and arm consistent with
plaintiff's description of the incident, i.e., "that it was . . .
defendant who was advancing on . . . plaintiff and not the other
way around." The judge found implausible defendant's testimony
regarding the location of the knife she used to stab plaintiff.
The judge stated in that regard: "The steak knife in the
defendant's words was immediately nearby on the window sill. And
the fact that it was so close on the window sill after she alleges
being choked . . . in the [c]ourt's estimation, def[ies] a
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sequential logic." The judge concluded the testimony of defendant
and her grandmother that steak knives were kept "everywhere" was
not believable, "especially with . . . kids . . . running around,
it defies logic that there would be . . . a steak knife on the
window sill . . . ."
The judge found defendant's text messages to plaintiff
following the incident further confirmed she was the aggressor.
The judge concluded:
Importantly, in the [c]ourt's view, the
defendant made, if not a full admission of
sorts in her text, certainly an . . .
acknowledgement of her own conduct in text
messages where she said, "I know things got
out of hand . . . the other night."
. . . .
And, again, if that's not entirely an
admission of sorts, it's certainly an
acknowledgment of her own behavior not being
entirely self-defense as she wants the [c]ourt
to consider it for.
There also was another text message that . . .
plaintiff pointed out, where . . . defendant
replied to . . . plaintiff, calling him a
"dramatic ass self." And, again, in the
[c]ourt's view, a reasonable person wouldn't
call the aggressor a "dramatic ass self."
Typically speaking, that would be words that
you would use to somebody that may have been
victimized, and then accusing that victim of
being dramatic about the nature and extent of
the victim's wounds.
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The trial judge concluded defendant had assaulted plaintiff
by admitting to pushing him and due to the evidence that she had
stabbed him with a knife. The judge concluded the evidence of
injury to defendant's neck and wrists supported his claim that he
was pushing defendant away in self-defense.
As we noted, the judge concluded defendant had not proved
either harassment or assault by plaintiff. The judge's findings
plaintiff had physical contact with defendant for self-defense
purposes negated the requisite mens rea necessary to prove
harassment under N.J.S.A. 2C:33-4(b) or assault. The judge
characterized the texts plaintiff had sent defendant as "impolite
conversation" and "domestic contretemps." Moreover, the judge
found the texts sent by plaintiff after the incident were not
proof of harassment but "understandable, after plaintiff had been
stabbed." Thus, the judge concluded the texts were not sent by
plaintiff for purposes of annoying or alarming defendant.
The trial judge additionally found plaintiff needed the
protection of an FRO because he felt unsafe in defendant's
presence, and feared her. The judge also found plaintiff to be
in immediate danger because of defendant's use of a knife against
him.
The judge therefore granted plaintiff the FRO and dismissed
defendant's complaint. This appeal followed.
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On appeal, defendant contends the trial judge's credibility
findings are not entitled to deference because the judge allegedly
overlooked photographic evidence of marks on defendant's neck and
wrists. Defendant argues the photographic evidence was not
impeached and was consistent with her testimony that plaintiff
choked her. Defendant further asserts the judge's findings
regarding plaintiff's credibility were erroneous because the judge
did not address "the effect that alcohol and intoxication would
have on [plaintiff's] recollection and perception." Defendant
notes plaintiff did not dispute he urinated on the deck or that
he sent defendant a text threatening to "get [her] back for
stealing [his] beer."
In addition to these specific claims, defendant argues the
trial judge's findings reflect she was biased against defendant.
Defendant notes the trial judge was the same judge who presided
at a hearing to modify the initial Temporary Restraining Order
(TRO), at which the judge maintained custody of the parties' son
with plaintiff. Defendant argues the judge's reliance on the
presumption of custody to the non-abusive parent was based on the
fact the judge failed to disclose she was privy to a report from
the Division of Child Protection and Permanency (DCPP).
Defendant also asserts that "[w]hile not articulated at the
hearing, the evidence of damage to the window and door could have
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supported a finding of domestic violence based on criminal
mischief." We address defendant's arguments in turn.
We begin by reciting our standard of review. In Cesare v.
Cesare, 154 N.J. 394 (1998), the Supreme Court addressed the
standard of review we apply to domestic violence matters. The
Court stated:
The scope of appellate review of a trial
court's fact-finding function is limited. The
general rule is that findings by the trial
court are binding on appeal when supported by
adequate, substantial, credible evidence.
Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,
65 N.J. 474, 484 (1974). Deference is
especially appropriate "when the evidence is
largely testimonial and involves questions of
credibility." In re Return of Weapons to
J.W.D., 149 N.J. 108, 117 (1997). Because a
trial court "'hears the case, sees and
observes the witnesses, [and] hears them
testify,' it has a better perspective than a
reviewing court in evaluating the veracity of
witnesses." Pascale v. Pascale, 113 N.J. 20,
33 (1988) (quoting Gallo v. Gallo, 66 N.J.
Super. 1, 5 (App. Div. 1961)) (alterations in
original). Therefore, an appellate court
should not disturb the "factual findings and
legal conclusions of the trial judge unless
[it is] convinced that they are so manifestly
unsupported by or inconsistent with the
competent, relevant and reasonably credible
evidence as to offend the interests of
justice." Rova Farms, 65 N.J. at 484. The
appellate court should "exercise its original
fact finding jurisdiction sparingly and in
none but a clear case where there is no doubt
about the matter." Ibid.
Furthermore, matrimonial courts possess
special expertise in the field of domestic
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relations. See Brennan v. Orban, 145 N.J.
282, 300-01 (1996).
. . . .
Because of the family courts' special
jurisdiction and expertise in family matters,
appellate courts should accord deference to
family court factfinding. As noted previously
by this Court, the Legislature "has reposed
grave responsibilities on Family Part judges
to ensure the safety and well-being of women
and children in our society. . . . We are
confident that they can successfully balance
the interests of society in deterring the
evils of domestic violence and caring for
families." Brennan, 145 N.J. at 304-05.
[Cesare, 154 N.J. 411-12.]
We reject defendant's challenges to the trial judge's
credibility determinations because such findings are entitled to
a high degree of deference. Moreover, as we recited above, when
faced with diametrically opposite explanations of the incident
between the parties, the trial judge gave detailed reasons why she
found defendant's testimony not credible and plaintiff's
recitation truthful. Contrary to defendant's argument on appeal,
by comparison, the trial judge was not required to explore the
impact of plaintiff's alcohol use on his ability to recall the
facts, where the record demonstrated there was no issue with his
recollection during his testimony. The record also demonstrates
defendant's counsel was able to probe plaintiff's recollection of
the incident and draw an admission from plaintiff regarding his
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use of alcohol on the night in question. Notwithstanding, the
judge found the greater weight of the evidence supported
plaintiff's version of the incident. We have no basis to second
guess the judge's findings, which have ample support in the record.
We also disagree with defendant's contention the trial judge
overlooked evidence of the injuries suffered by defendant to her
neck and wrists. The judge acknowledged the photographic evidence4
of the injuries, but found it not dispositive of defendant's
assertion that plaintiff had choked her. Indeed, the trial judge
provided detailed reasoning why "the slight neck bruising"
suffered by defendant was actually evidence of plaintiff defending
himself against defendant, who wielded two knives during the
attack. The judge ultimately found the photographic evidence of
defendant's injuries "inconclusive." Defendant's arguments on
appeal represent a disagreement with the conclusions drawn by the
trial judge. However, given the deference we owe the trial judge's
factual findings, there is no basis for us to reach a different
conclusion because the record allegedly supports the judge's
findings.
We also reject defendant's argument the trial judge was pre-
disposed against her because the judge maintained custody of the
4
We note defendant's counsel did not provide the photographs in
the appendices on appeal.
13 A-0025-17T1
parties' son with plaintiff pending the final outcome of the
matter. As a general proposition, a judge hearing an application
for a TRO is empowered to grant ex parte relief, including an
award of temporary custody pending the FRO hearing. N.J.S.A.
2C:25-28(g). Defendant demonstrated no link between the trial
judge's exercise of authority to grant temporary relief under the
TRO, and the decision to grant plaintiff an FRO.
Moreover, the record does not support defendant's claim the
trial judge was biased because she had reviewed a DCPP report
before the trial. In fact, following the entry of the FRO in
favor of plaintiff, the judge addressed the other non-restraint-
related dispositive relief sought by the parties, namely,
defendant's request for parenting time. In doing so, the trial
judge entered a protective order before reviewing the DCPP report
with the parties on the record and addressing parenting time.
Significantly, the judge stated "I'm just reading [the DCPP report]
for the first time now . . . ." Therefore, the record does not
evidence the trial judge was pre-disposed against defendant by
virtue of the DCPP report and this claim lacks merit.
Finally, we reject defendant's assertion the trial judge
should have concluded plaintiff engaged in criminal mischief by
breaking down the window adjacent to the foyer during the incident.
The judge rejected defendant's theory of the sequence of events,
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including defendant's claim plaintiff had re-entered the residence
in this fashion, and we have not been persuaded otherwise. More
importantly, criminal mischief was not pled in defendant's TRO,
and defendant did not argue grounds for entry of an FRO on such a
basis to allow the trial judge to afford plaintiff due process and
the ability to prepare a defense. Our Supreme Court has stated:
[D]ue process forbids the trial court "to
convert a hearing on a complaint alleging one
act of domestic violence into a hearing on
other acts of domestic violence which are not
even alleged in the complaint." [S]ee L.D.
v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999)
(explaining that "it is clearly improper to
base a finding of domestic violence upon acts
or a course of conduct not even mentioned in
the complaint.").
[J.D. v. M.D.F., 207 N.J. 458, 478-79 (2011)
(citation omitted).]
For these reasons, we reject this argument as grounds for reversal.
In sum, the trial judge's findings of fact and conclusions
of law are supported by the substantial, adequate, and credible
evidence in the record. Applying the governing deferential
standard of review, we must sustain those determinations.
Affirmed.
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