B.E.S., III v. E.E. (FV-08-0348-22, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

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NOT FOR PUBLICATION WITHOUT THE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-0738-21
B.E.S., III,
Plaintiff-Respondent,
v.
E.E.,1
Defendant-Appellant.
_______________________
Submitted September 29, 2022 – Decided October 6, 2022
Before Judges Haas and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FV-08-0348-22.
Hark & Hark, attorneys for appellant (Michael J. Collis,
on the briefs).
Tonacchio, Spina & Compitello, attorneys for
respondent (Joseph Compitello, on the brief).
1
We use initials to protect the parties' privacy and the confidentiality of these
proceedings. R. 1:38-3(d)(9).
PER CURIAM
Plaintiff commenced this action, pursuant to the Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35, based on an allegation that defendant
assaulted him on August 29, 2021. At the conclusion of a final hearing at which
both parties testified, 2 the judge rendered detailed findings of fact and entered a
final restraining order (FRO) in plaintiff's favor.
On appeal, defendant raises the following arguments:
I. APPELLATE STANDARD OF REVIEW
II. THE COURT DID NOT PROVIDE THE
PARTIES WITH THE CONSEQUENCES OF A
FINAL RESTRAINING ORDER NOR DID IT
ADVISE DEFENDANT OF HER RIGHT TO AN
ATTORNEY. (Not Raised Below). 3
III. PLAINTIFF DID NOT PROVE BY A
PREPONDERANCE OF THE EVIDENCE THAT
DEFENDANT'S ACTIONS CONSTITUTED A
PREDICATE ACT OF ASSAULT UNDER N.J.S.A.
2C:12-1 (Not Raised Below).
2
Plaintiff was represented by counsel at the hearing. Defendant was pro se.
3
Contrary to defendant's position, the judge's opening statement provided
detailed instructions on the consequences of being subject to an FRO, including
that a violation could have criminal consequences and that defendant would have
to be fingerprinted and photographed. In addition, the judge advised defendant
of her right to seek an attorney and her ability to request a postponement should
she elect to seek the advice of counsel.
A-0738-21
2
IV. PLAINTIFF DID NOT PROVE BY A
PREPONDERANCE OF THE EVIDENCE THAT A
FINAL RESTRAINING ORDER WAS NECESSARY
FOR HIS PROTECTION UNDER SILVER V.
SILVER. (Not Raised Below).
V. THE COURT RELIED ON INADMISSIBLE
EVIDENCE FOR ITS DECISION, WARRANTING
REVERSAL. (Not Raised Below).
We find insufficient merit in defendant's contentions to warrant discussion
in a written opinion. Rule 2:11-3(e)(1)(E). We add only the following, brief
comments.
Our review of a trial judge's fact-finding is limited. Cesare v. Cesare, 154
N.J. 394, 411 (1998). A judge's findings of fact are "binding on appeal when
supported by adequate, substantial, credible evidence." Id. at 411-12 (citing
Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)).
Deference is particularly warranted where, as here, "the evidence is
largely testimonial and involves questions of credibility." Id. at 412 (quoting In
re Return of Weapons of J.W.D., 149 N.J. 108, 117 (1997)). Such findings
become binding on appeal because it is the trial judge who "sees and observes
the witnesses," thereby possessing "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)). Therefore,
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we will not disturb a trial judge's factual findings unless convinced "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 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super.
154, 155 (App. Div. 1963)). However, we review de novo "the trial judge's legal
conclusions, and the application of those conclusions to the facts." Elrom v.
Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Reese v. Weis, 430
N.J. Super. 552, 568 (App. Div. 2013)).
The trial judge found plaintiff's testimony credible after observing "his
body language, his behavior, his testimony, . . . [and] his eye contact." In
addition, the judge found plaintiff's testimony consistent with the initial
allegations contained in the complaint and not completely inconsistent with
defendant's testimony. On the other hand, the judge did not find defendant's
testimony credible.
The judge's determination that defendant assaulted plaintiff was squarely
based upon plaintiff's credible testimony concerning the predicate acts, and his
equally reliable testimony concerning defendant's past history of domestic
violence. We find no principled reason for second-guessing this determination.
A-0738-21
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After careful examination of the record, we are also satisfied that this same
evidence more than amply demonstrated the judge's determination that plaintiff
needed an FRO to protect him and his four-year-old son from further acts of
domestic violence. Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div.
2006). In that regard, we reject defendant's contention that the admission of
plaintiff's son's alleged hearsay statements warrants reversal. Defendant failed
to object to the admission of these statements at the hearing and we conclude
that their admission was not clearly capable of producing an unjust result. Rule
2:10-2. The judge placed scant reliance on the alleged hearsay statements.
Rather, the judge primarily relied on plaintiff's testimony about the subject
assault, defendant's prior assaultive behavior, and the inevitable future
interactions between the parties who are soon-to-be co-parents.
Affirmed.
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