C.M.S. VS. R.M. (FV-06-0072-20, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-0037-19T2
C.M.S.,
Plaintiff-Respondent,
v.
R.M.,
Defendant-Appellant.
_______________________
Submitted October 1, 2020 – Decided January 7, 2021
Before Judges Ostrer and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland County,
Docket No. FV-06-0072-20.
Jacobs & Barbone, PA, attorneys for appellant (Louis
M. Barbone, on the brief).
Rutgers Domestic Violence Clinic, Rutgers Law,
attorneys for respondent (Victoria Chase, Clinical
Associate Professor, of counsel; Abigail Cook,
admitted pursuant to Rule 1:21-3(b), on the brief).
PER CURIAM
Defendant appeals from a Final Restraining Order (FRO) issued under the
New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17
to -35. The court granted the order after finding that defendant assaulted his
then-girlfriend and that she needed protection. We affirm.
I.
A.
Both parties testified that they argued on the day of the assault, but their
descriptions of the argument differed drastically. According to Carla ,1 her
boyfriend Roberto, a police officer, had been drinking and was intoxicated. He
wanted to go to a bar in Philadelphia, but could not remember the name. He
repeatedly demanded that she tell him the name; when she refused, he tried to
grab her phone from her hands, and accused her of hiding something from him.
Carla testified that she decided to leave, and that as she prepared to do so,
Roberto attacked her, putting her in a "choke hold" and "flinging [her] around"
in the bedroom doorway. Carla demonstrated or described the "choke hold" in
various ways: either Roberto's hand or hands were on her shoulder, or his arm
was around her neck. As she screamed for help, he tried to stick his fingers in
1
We use pseudonyms for the reader's convenience, and to protect the privacy
of the domestic-violence victim. See R. 1:38-3(d)(9) to (10).
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her mouth. He blocked one door and locked another after she unlocked it. She
said that during the altercation, Roberto punched her cellphone, making it
"completely unusable." She also testified that he broke the house phone while
she tried to use it to call 911. According to a police report, Carla did not say
that Roberto broke the house phone, but only that the phone was unplugged. But
Carla testified that she "believe[d]" she told the police that Roberto threw the
phone at the wall.
Roberto stopped Carla from leaving not only by blocking the doors, but
also by throwing her phone and keys near the knife block. She scrambled for
the phone and keys, but feared that he might kill her with a knife. So she struck
him several times with a frying pan before leaving the house.
After the fight, Carla drove straight to her sister's house, not to the police
station, though both were the same distance away. She said that when she left
the house she "had no phone or nothing that [she] could use." However, her
sister testified that Carla called her from the car using Bluetooth.
Encouraged by her sister, Carla went to the police department and reported
the incident. She told the interviewing officer that Roberto had been cho king
her. According to the police report, which Carla never signed, she claimed that
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Roberto placed her in a "headlock," but she did not claim that she was "choked
or lost consciousness."
Her sister took photos of her injuries after returning from the police station
early the next morning. They depicted scrapes on Carla's hands, bruising on her
arms and legs, and bruising near her shoulder and collarbone, but no bruising on
her neck.
Roberto recalled the incident very differently. He testified that when
Carla refused to answer his questions about the bar, he became "suspicious"; he
"always ha[d] issues of trusting her." Nonetheless, when she left the bedroom ,
he simply moved out of her way, waiting until she reached the front door before
asking if they could talk. Carla yelled at him, telling him to leave her alone and
let her go.
She had to come back to get her keys; Roberto followed her, then tried to
calm her down with a hug. His strategy backfired. Carla, yelling that she wanted
to go and that she was leaving, struck him several times with a frying pan.
Roberto told her to go. She left. When she was already in her car, Roberto
called 911 to report that she assaulted him. Roberto offered into evidence
photographs of his bruises.
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B.
Carla testified that the assault followed a history of controlling behavior
and domestic violence. She said that Roberto tracked her physical movements
using an app; he called her constantly; and he did not even let her close the door
when she used the bathroom. When she tried to leave the relationship — which
she did more than once — he looked for her, claiming that not only did he miss
her, but that his children also missed her.
Carla recounted two specific incidents of violence. Unsurprisingly, her
recollection of the events differs from Roberto's.
The first incident occurred more than a year before the predicate offense.
According to Carla, she and Roberto quarreled while at a club. On the way
home, Roberto, who was drunk, punched Carla and twisted her wrist. He also
punched and damaged the car's dashboard. Carla's sister and brother-in-law
testified that they each later confronted Roberto about his laying hands on Carla;
Roberto apologized to the brother-in-law and promised both of them that it
would never happen again.
Roberto gave a different account. He asserted that Carla struck him
repeatedly, and he grabbed her wrist to protect himself. He admitted that he
later apologized to her family members, but only "because she had bruising."
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The second incident occurred not long after the first. According to Carla,
she and Roberto got engaged. Around the same time, though, Roberto became
violent and yanked her shoulder. When she told him she was leaving and not
coming back, he broke her house key and her engagement ring.
But according to Roberto, Carla had repeatedly treated the ring with
disdain, either throwing it at him or leaving it in the house. On the evening in
question, she threw it. Frustrated, Roberto smashed the ring, but did not
confront her physically.
C.
In its oral decision granting Carla relief, the court found Carla's testimony
"entirely credible" and Roberto's testimony only partially credible. The court
thus resolved any possible discrepancies in Carla's favor.
Regarding the parties' history, the court found that Roberto had attempted
to control Carla by, for example, tracking her with an app. The court did not
explicitly find that the wrist-twisting incident occurred the way Carla described
it, but it concluded that Roberto must have done something wrong; otherwise,
he would not have apologized to her family.
The court found that Roberto committed a predicate act of assault. It
found that the photographs of Carla's injuries, including "a significant bruise
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around her neck," supported her version of what happened that night, rather than
Roberto's testimony that he merely tried to hug her. The court found that
Roberto's calling 911 may have been a "preemptive strike" to protect himself
from a possible restraining order.
The court also found that the parties had a history of domestic violence.
Their relationship was "relatively toxic"; Roberto had an alcohol problem that
damaged the relationship; and Carla tried to leave the relationship multiple
times, but Roberto manipulated her into returning. The court determined that
Carla would need protection in the future. Therefore, the court entered a final
restraining order.
In his appeal, Roberto argues that the court's findings were not based on
adequate, substantial, credible evidence. He principally argues that five aspects
of the record undermine the trial court's findings. He contends that the court
erred in believing Carla's testimony, because Carla delayed reporting the two
earlier instances of domestic violence; after the final incident, she fled to her
sister's home instead of to the police; her descriptions of the alleged chokehold
varied; she falsely claimed that he broke her cell phone; and she inaccurately
described their altercation concerning the landline phone.
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II.
In deciding whether to grant a final restraining order, a trial court must
engage in a two-step inquiry. Silver v. Silver, 387 N.J. Super. 112, 125 (App.
Div. 2006). The court must first determine whether the plaintiff proved, "by a
preponderance of the credible evidence," that the defendant committed one of
the predicate acts listed in the PDVA. Ibid. Assault is one of the predicate acts
listed in the PDVA. N.J.S.A. 2C:25-19(a)(2). If the plaintiff and defendant
share a history of domestic violence, the court must consider evidence of the
predicate act in light of that history. Silver, 387 N.J. Super. at 125-26. If the
court finds that the defendant committed a predicate act, the court must decide
whether to issue a restraining order. Id. at 127. The court will issue a restraining
order if a restraining order is necessary to protect a victim from further abuse.
Ibid.Roberto limits his argument to the trial court's fact-findings, under the
first Silver prong, that he committed a predicate act and that there was a history
of domestic violence. Findings by a trial court are generally binding on appeal,
provided they are "supported by adequate, substantial, credible evidence."
Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). An appellate court should defer
to the trial court's findings unless those findings appear "so manifestly
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unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova
Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). An
appellate court owes a trial court's findings deference especially "when the
evidence is largely testimonial and involves questions of credibility." Ibid.(quoting In re Return of Weapons to J.W.D., 148 N.J. 108, 117 (1997)). In
addition, because of family courts' specialized expertise, an appellate court
should accord special deference to a family court's findings. See id. at 413.
Under this deferential standard, we affirm. Roberto's arguments all attack
the court's determinations of credibility — and a trial court (significantly, a
family court dealing with a family matter) is particularly suited to decide issues
of credibility. Here, the trial court's findings were not "so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." In analyzing the court's
findings and the alleged inconsistencies, we note that a trial court need not
analyze in detail, on the record, all facts bearing on a witness's credibility. See
State v. Locurto, 157 N.J. 463, 475 (1999).
Here, the trial court's findings, although limited, provide sufficient reason
to affirm its judgment. The court relied heavily on the photographic evidence
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of Carla's injuries. As the court noted, her bruising did not come from a mere
hug. Given the sharp differences in the two parties' accounts, the photogr aphs
provided adequate, substantial, credible evidence supporting Carla's account and
a finding that Roberto committed assault.
The court's finding that Roberto committed domestic violence in the past
was also sufficiently grounded in credible evidence. Roberto had, after all,
apologized to Carla's brother-in-law for her injury. The court reasonably
rejected Roberto's explanation that he apologized simply because Carla was
bruised, and not because he was at fault. Roberto admitted that he smashed
Carla's ring, but excused his behavior by saying he was frustrated. The court
also reasonably found that Roberto engaged in other controlling, if not always
violent, behavior.
None of Roberto's claims of inconsistencies in Carla's testimony compel
us to reject the trial court's findings. Roberto argues that Carla delayed reporting
the first two instances of domestic violence to the police, and that she fled to her
sister's home instead of the police station. But Carla testified she did not trust
the police because Roberto, a police officer, had told her they would side with
him. In addition, her sister's home was no farther away than was the police
station.
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Roberto also argues that Carla described the alleged "chokehold"
inconsistently. However, the trial court could reasonably attribute that
inconsistency to a failure of memory due to trying circumstances. In any event,
even if her descriptions varied, and even if he did not have her in a technical
"chokehold," photographic evidence showed bruising in the shoulder and neck
area — bruising consistent with a forceful grip, not a mere hug.
According to Roberto, Carla lied when she said that he had rendered her
cellphone "completely unusable," because her sister testified that Carla called
her from the car. But a phone may be unusable because of a cracked screen, yet
retain some functionality when connected to another device, such as an
automobile's touch screen. Indeed, in response to defense counsel's argument,
Carla's counsel highlighted that explanation in summation, noting Carla's sister's
testimony that Carla used Bluetooth to make her call. We may assume the trial
court was persuaded by that explanation.
Finally, Roberto argues that Carla presented conflicting descriptions of
the incidents regarding the house phone. But her descriptions did not necessarily
conflict. Roberto, who had previously broken Carla's house key and engagement
ring, could well have smashed the phone in anger, whether or not it was plugged
in. Furthermore, perhaps Carla did tell the police that Roberto threw the phone,
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but the police may have failed to include that information in the report — a
report that Carla never signed.
In sum, the trial court's factual findings are adequately supported by
substantial, credible evidence in the record. Under those circumstances, "we
may not second-guess its judgment." N.J. Div. of Youth & Fam. Servs. v. F.M.,
211 N.J. 420, 427 (2012).
Affirmed.
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