P.E.O. VS. R.J. (FV-07-3008-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-5354-18T1
P.E.O.,
Plaintiff-Appellant,
v.
R.J.,
Defendant- Respondent.
________________________
Argued telephonically April 22, 2020 –
Decided May 11, 2020
Before Judges Koblitz, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-3008-19.
Celeste Fiore argued the cause for appellant (Argentino
Family Law & Child Advocacy, LLC, attorneys;
Celeste Fiore and Jodi Ann Argentino, on the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff, P.E.O., 1 appeals after trial from the June 28, 2019 denial of a
final restraining order (FRO), pursuant to the Prevention of Domestic Violence
Act (PDVA), N.J.S.A. 2C:25-17 to -35. The trial court found that plaintiff's
wife, R.J., a black belt in martial arts and kickboxing instructor, assaulted her,
causing physical injuries, and also falsely imprisoned her. Nonetheless, the trial
court determined that a FRO was unnecessary to protect plaintiff from future
acts or threats of violence. We now reverse.
The parties, who were together since 1996, married in Canada in October
2003. The two women had two children together using an anonymous sperm
donor. Defendant carried both children, and both parties are listed as the parents
on the children's birth certificates.
In January 2019, defendant asked plaintiff for a divorce. Plaintiff testified
that "[t]here[] [had] been tension" between them, they "did not communicate
very well," and a pattern of name calling had developed. Plaintiff believed
defendant began a romantic relationship with her co-worker and kickboxing
instructor, however, defendant testified that he was only a "good friend." On
March 15, 2019, plaintiff called defendant's co-worker approximately seventy
1
We use initials to protect the identity of victims of domestic violence and to
preserve the confidentiality of these proceedings. R. 1:38-3(d)(9) to -(10).
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times in hopes of making "it difficult for him [so] that he would leave
[defendant] alone."
Five days later, plaintiff visited the co-worker's daughter's Instagram page
and commented below a post, "Why don't you ask your father why he's sleeping
with a married woman." About "three to four minutes" later, when she tried to
delete the comment, it was no longer there. Upon plaintiff arriving home from
work that night, defendant confronted her about the comment. Plaintiff walked
into the laundry room and defendant followed her in there. Plaintiff testified
defendant "had backed [her] up" into the ironing board and punched her in the
face and chest. Although plaintiff explained at trial that because she "had a
concussion . . . [she] ha[s] holes in [her] memory," she said defendant also put
her "hand on [plaintiff's] throat and said, something to the effect of [']I could
kill you['] or [']I would kill you. [']"
When plaintiff told defendant that their son was standing behind them,
defendant left the laundry room, closing the door. Plaintiff tried to leave, but
defendant held the door shut. About "[thirty] seconds to a minute" later, plaintiff
was able to exit the laundry room and saw defendant gathering things together
for herself and the children to leave the home. Over plaintiff's objections,
defendant left the marital apartment with the children.
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Defendant testified to a somewhat different incident. While she admitted
that she confronted plaintiff in the laundry room about the Instagram comment
and held the door shut, defendant testified that she did not punch plaintiff at that
time. Rather, defendant claimed that while she was collecting items for herself
and the children from the bedroom, she heard plaintiff tell a mutual friend over
the phone that defendant was being "violent" and "aggressive." Defendant went
towards plaintiff to try to speak into the phone, but as plaintiff moved away,
defendant explained she saw plaintiff's "hand coming up towards [her]," so she
"ducked out of the way and . . . punched" plaintiff in self-defense. Defendant
testified, "I was shocked. I, also, couldn't believe that I would do something
like that. I don't do things like that. I am not a violent person." Plaintiff then
pushed defendant, who sustained bruising.
After defendant left, the police responded to plaintiff's call at about 10:00
p.m. Plaintiff told the police what defendant did and explained she "was not
concerned . . . [defendant] would harm the children." She did not seek a
temporary restraining order (TRO) at that time because she did not want
defendant to be arrested in front of the children.
Plaintiff had redness and a cut on her chin the evening of the incident.
The next day, she visited an urgent care but was directed to go to the emergency
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room. Plaintiff's hospital discharge summary explained that she might have a
concussion. She testified that in the days following the incident, she "had
headaches and pain . . . around [her] eye, [and her] cheek and had difficulty
concentrating and completing [her] work."
Plaintiff vacated the marital apartment and stayed in a hotel for two weeks
with her father. Whenever plaintiff visited the children, she asked her father to
accompany her because she "was afraid that [she] would be hurt again." On
March 30, 2019, during one of plaintiff's prearranged visits, defendant texted
plaintiff to "[s]top milling the fuck around and leave" the apartment and called
plaintiff a "piece of sh[i]t." Two days later, plaintiff amended her police report
to include that she had "a contusion under her right eye and on her chest." The
attending officer asked plaintiff whether she wanted to file a TRO, but plaintiff
declined to do so.
Plaintiff testified that because she was still afraid of defendant, and her
father could not be with her forever, she spoke to a domestic violence agency
and realized "what [she] needed to do for [her]self was to file for the restraining
order." On April 8, 2019, plaintiff obtained a TRO against defendant, alleging
defendant subjected her to assault, terroristic threats, criminal restraint, false
imprisonment and harassment. The FRO hearing occurred over two days. The
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court heard from plaintiff, defendant and the police officer who responded to
plaintiff's call on the night of the incident. Plaintiff entered into evidence
photographs depicting her injuries, spanning from the date of the incident,
March 20, to March 28, 2019. Defendant also presented photographs of the
bruising on her forearm sustained from plaintiff shoving her after being hit.
On June 28, 2019, while the court was delivering its oral opinion, plaintiff
suffered a panic attack and a nosebleed, requiring medical attention. When the
proceeding resumed, plaintiff's counsel unsuccessfully asked for an adjournment
until the next business day because plaintiff was no longer present. Although
the court found defendant assaulted and falsely imprisoned plaintiff, the FRO
was denied.
"We have a strictly limited standard of review from the fact-findings of
the Family Part judge." R.L.U. v. J.P., 457 N.J. Super. 129, 134 (App. Div.
2018) (quoting N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super.
551, 577 (App. Div. 2010)). Because a Family Part judge "possess[es] special
expertise in the field of domestic relations," we defer to those factual findings.
Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Furthermore, we defer because
Family Part judges have the "opportunity to make first-hand credibility
judgments about the witnesses who appeared on the stand." R.L.U., 457 N.J.
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Super. at 134. Therefore, when considering a FRO we "grant substantial
deference to the trial court's findings of fact and the legal conclusions based
upon those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013).
We may, however, disturb the factual findings and legal conclusions of
the trial court if we are "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." Cesare, 154 N.J. at 412 (quoting Rova
Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Questions of law
are reviewed de novo. R.L.U., 457 N.J. Super. at 134.
Plaintiff argues that because the trial court found defendant had
committed physically violent predicate acts of domestic violence, a FRO should
have been entered as a matter of law. Relying upon A.M.C. v. P.B., 447 N.J.
Super. 402, 417 (App Div. 2016), she asserts analysis of "the second prong of
Silver[2] is not even necessary in light of a violent predicate act."
The PDVA "is intended to assist those who are truly the victims of
domestic violence." Silver, 387 N.J. Super. at 124 (quoting Kamen v. Egan, 322
N.J. Super. 222, 229 (App. Div. 1999)). When deciding whether to grant a FRO,
the trial court has a "two-fold" task. Id. at 125. A court must first determine
2
Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006).
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whether the plaintiff can demonstrate by a preponderance of the evidence that
the defendant has committed a predicate act of violence under N.J.S.A. 2C:25-
19(a). Ibid.
The court must then determine "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), to protect the victim from an immediate danger or to prevent further
abuse." Id. at 127. The court should consider, but is not limited to six factors,
of which four are relevant here:
(1) The previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;
(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the plaintiff and
defendant;
(4) The best interests of the victim and any child
[N.J.S.A. 2C:25-29(a)(1) to -(4).]
Of the five acts of domestic violence plaintiff alleged, the court found that
plaintiff established by a preponderance of the evidence the predicate acts of
assault, N.J.S.A. 2C:12-1(a)(1), and false imprisonment, N.J.S.A. 2C:13-3.
Assault occurs when a person "[a]ttempts to cause or purposely, knowingly or
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recklessly causes bodily injury to another." N.J.S.A. 2C:12-1(a)(1). "Bodily
injury means physical pain, illness or any impairment of physical condition."
N.J.S.A. 2C:11-1(a). False imprisonment occurs when a person "knowingly
restrains another unlawfully so as to interfere substantially with his [or her]
liberty." N.J.S.A. 2C:13-3. The court emphasized that defendant admitted to
punching plaintiff and that plaintiff "produced pictures which show[ed] redness
on her face, bruising under her eye and bruising on her chest."
"When the predicate act is an offense that inherently involves the use of
physical force and violence, the decision to issue a FRO 'is most often
perfunctory and self-evident.'" A.M.C., 447 N.J. Super. at 417 (quoting Silver,
387 N.J. Super. at 127).
In discussing the N.J.S.A. 2C:25-29(a) factors, the court reasoned that a
FRO was not necessary to protect plaintiff. The court noted that no history of
domestic abuse existed. Although after defendant told plaintiff she wanted a
divorce, a "breakdown of the relationship" began with the parties calling each
other names, defendant giving plaintiff "the silent treatment," and plaintiff
calling defendant's co-worker and commenting under his daughter's Instagram
post, the court emphasized that plaintiff was the party who caused "the
escalation of a certain type of behavior."
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The court found that plaintiff was in a stronger financial position than
defendant. Defendant moved out of state because she could no longer afford to
live in New Jersey and, therefore, "had to relinquish residential custody of the
. . . children."
Finding that "other [than] . . . plaintiff saying that she's afraid, there [was]
nothing in the record which [gave] this [c]ourt reason to conclude that . . .
defendant ha[d] exerted any power or control over . . . plaintiff, . . . or has the
means or ability to do so in the future," the court denied the FRO.
In A.M.C. we reversed the denial of a FRO where the trial court found the
defendant committed the predicate offense of assault, but nonetheless concluded
that a FRO was unnecessary to protect the plaintiff. Id. at 422-23. There the
trial court determined the plaintiff did not need ongoing protection because:
(1) the defendant, who was unaware that a TRO was issued against him, had no
desire to have a continuing relationship with the plaintiff and did not try to
communicate with her after she left the marital home; (2) the parties did not
have any children together; and (3) the plaintiff established only two instances
of domestic violence, despite alleging many other, during the short nature of the
parties' marriage. Id. at 411–12.
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In reversing the trial court's decision, we found the parties' childlessness
should not adversely affect the plaintiff's entitlement to injunctive relief. Id. at
415. We also found the defendant's conduct after the plaintiff left the marital
home and the brevity of the parties' marriage were not relevant in deciding
whether a FRO should be issued under the second prong of Silver. Id. at 416.
The trial court's findings were "based more on speculation than evidence in the
record" as there was "no rational basis for the [court] to use the duration of the
marriage as a reliable predictor of [the] defendant's future conduct with [the]
plaintiff" and the court "minimized one of the principal concerns that drove our
analysis in Silver: [w]hether the predicate offense involved a violent act." Id. at
416.
Here, the parties had a lengthy relationship and two young children
together, necessitating further contact between the parties. The children made
the need for protection stronger and potential hazards of further violence more
serious.
As in A.M.C., the trial court minimized the violent nature of defendant's
actions. While it acknowledged that defendant "[c]ertainly" caused plaintiff
injuries, the court explained it did "not find [plaintiff's] testimony credible as it
relates to how the injuries occurred." The court noted that since plaintiff
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repeatedly testified that she suffered from memory loss due to her concussion,
"her memory [was] not exactly the most reliable." Although the court
downplayed plaintiff's credibility and stated that defendant had been provoked
prior to punching plaintiff, it found that defendant had committed two acts of
domestic violence, including an assault that caused bruising and a head injury.
The court over-emphasized the lack of prior physical abuse between the
parties. Although "domestic violence is ordinarily more than an isolated
aberrant act," id. at 124 (quoting Corrente v. Corrente, 281 N.J. Super. 243, 248
(App. Div. 1995)), and a history or pattern of abuse is a "classic characteristic
of domestic violence," an order of protection may be granted "in the absence of
such a pattern where there is 'one sufficiently egregious action,'" id. at 128
(quoting Cesare, 154 N.J. at 402). The court primarily denied the FRO because
no history of domestic abuse existed. Although we defer to a family court's
findings and credibility judgments, the court's denial of the FRO in these
circumstances is contrary to the interests of justice and the purpose of the PDVA.
Neither plaintiff's posting on Instagram, nor any other non-violent act justified
defendant's physical violence.
Reversed. We remand only for the entry of a final restraining order and
do not retain jurisdiction.
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