C.J.R. v. L.M.V.

PER CURIAM

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

Before Judges Fasciale and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket Nos. FV-10-207-12 and FV-10-211-12.

Anthony J. Danzo argued the cause for appellant.

L.M.V., respondent, argued the cause pro se. PER CURIAM

C.J.R. appeals the denial of a Final Restraining Order (FRO) that he sought against L.M.V. under the Prevention of Domestic Violence Act of l99l (Act), N.J.S.A. 2C:25-17 to -35, and the grant of L.M.V.'s FRO against him. We affirm.

L.M.V. filed a separate appeal; however, she merely opposes C.J.R.'s appeal and does not assert any claims of trial court error. These back-to-back appeals have been consolidated for purposes of this opinion.

The record reveals that on September 26, 2011, C.J.R. obtained a temporary restraining order (TRO) against L.M.V., and on September 27, 2011, she obtained a TRO against him. Each alleged simple assault, N.J.S.A. 2C:12-1(a)(1), and harassment, N.J.S.A. 2C:33-4.

The parties have a son, C.J., who was the subject of an ongoing custody/parenting time dispute. On the date of the alleged domestic violence incident, both parties were in front of C.J.R.'s home waiting for C.J.'s school bus to arrive. It was the first day they were to exchange their son in accordance with a newly revised week-to-week parenting schedule.

At the FRO trial on October 6, 2011, held before Judge Margaret Goodzeit, C.J.R. testified that another court ordered L.M.V. not to be on his property during the exchange. While waiting in his car with his fianc?e, C.J.R. saw L.M.V. drive onto his street and park in a neighbor's driveway. He called the police anticipating trouble.

When the bus arrived, C.J.R. walked across the street to receive C.J. L.M.V. stood at the bus stop holding an umbrella due to rain. L.M.V. told C.J.R. that he was not allowed to take him from the bus because it was her day. When the child got off the bus, both parties grabbed him by an arm and tussled with the child between them. When the child started screaming "[y]ou are hurting me," C.J.R. told L.M.V. to let go of his arm. C.J.R. testified that when L.M.V. let go of C.J., she stumbled and swung the umbrella at him at the same time. She did not hit him and she did not fall to the ground. C.J.R. claimed to have a police report to corroborate his testimony, but the court deemed it hearsay and did not read or admit the report into evidence.

C.J.R. denied any history of domestic violence but mentioned, without specificity, an incident where L.M.V. allegedly struck him in the head with a closed fist when he tried to give her something for the child. He also mentioned another incident in October 2009 when, after an argument during the exchange of the child, L.M.V. threw her cell phone across the parking lot in frustration, but not at him. He presented his sister, who testified about the parking lot incident. Lastly, C.J.R testified that L.M.V. had been harassing him and his fianc?e by threatening to come to his home unannounced, as she did on that day.

His fianc?e testified and corroborated C.J.R.'s version of the bus stop incident. She stated that she was in the car with C.J.R. and observed L.M.V. park her car in a nearby driveway. Although her view was blocked momentarily by the bus, when the bus moved she saw both parties holding onto the child. She heard the parties yelling at each other to let go. She then testified that L.M.V. swung the open umbrella, lost her footing and released C.J., and then began running around in the street.

L.M.V. provided a slightly different version of the bus stop incident and the parties' prior conflicts. First, she asserted that she did not violate any court order that prohibited her from being at C.J.R.'s home or the bus stop.L.M.V. further testified that she purposefully parked at a neighbor's house, then walked down the street in the rain to the bus stop. Her testimony concurs with C.J.R.'s that while she was holding her umbrella in her left hand, she and C.J.R. each grabbed C.J.'s arms. She claims, however, that as she released her son, she simultaneously lost her footing, and was grabbed then pushed by C.J.R. She stumbled into the street in front of cars waiting behind the school bus. L.M.V. denies that she swung the umbrella at him as she fell. L.M.V. offered photographs into evidence of the bruises she suffered to her upper arms.

In open court, the trial court judge listened to a portion of the parties' custody hearing that had occurred the week prior. The judge summarized by stating, "[w]e just listened to the audio from Judge Reed's proceeding on 9/16 and defendant asked Judge Reed, 'Can I pick him up from the bus,' and Judge Reed said, 'No, ma'am.'" It is unclear from the record if that directive was ever memorialized in an order.
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L.M.V. also testified regarding the April 2010 incident C.J.R. mentioned, where she allegedly struck C.J.R. in the head. She explained that when C.J.R. returned their son to her home, she was attempting to remove him from the car. C.J.R. became very angry at her for touching his car, yelled "don't touch my car," and pushed her backwards causing her to fall to the ground. As she fell, she may have hit C.J.R. either on the arm or head. Regarding the October 2009 parking lot incident, L.M.V. acknowledged that she threw the phone in frustration but did not aim for C.J.R. Neither of the prior incidents resulted in restraining orders.

At the close of the trial, the judge addressed C.J.R.'s complaint first. She did not find C.J.R. or his witnesses credible. Regarding the bus stop incident, she found that both parties had hold of the child, and stated

what does not seem logical is that [L.M.V.] was trying to hit [C.J.R.] with an open umbrella. It doesn't make sense. It is not logical.
She lost her footing . . . [H]er hand may have moved with the umbrella. But I don't find there was an attempt to hit [C.J.R.] at all. I find that testimony not credible, as I similarly find the testimony to that effect of his fianc?e not credible.
The fianc?e was a little more tentative about her testimony. She said it all happened so fast and L.M.V. lost her footing. I wasn't convinced by her testimony at all that there was an attempt to swing the umbrella at [C.J.R.,] and I find that that didn't happen.

Having listened to a portion of the parties' other court proceeding, the trial judge rejected C.J.R.'s contention that L.M.V.'s presence at the bus stop constituted an act of harassment and therefore found that her being at the bus stop was not an act of domestic violence. The court continued:

I am left with the complaint that . . . [L.M.V.] swung at [C.J.R.] as being the predicate act of domestic violence, which is alleged, and I have just found that that did not occur. So there was no assault.
And I, thus, must dismiss C.J.R.'s complaint for [a] domestic violence restraining order. I do not find a predicate act occurred at all.

On L.M.V.'s complaint, the judge found L.M.V. credible. The judge determined that pictures depicting the fingerprint and bruises to L.M.V.'s upper arm corroborated her testimony regarding the bus stop incident. The judge also found L.M.V.'s testimony regarding the April 2010 incident credible. Specifically, the court determined that C.J.R.'s conduct, shoving L.M.V. to the ground in anger, coupled with the instant incident, was part of a pattern of domestic violence that justified the need for L.M.V. to be protected in the future.

The judge dismissed C.J.R.'s complaint and granted L.M.V. an FRO against C.J.R. This appeal followed.

On appeal, plaintiff raises the following issues:

I. THE COURT ERRED IN NOT ALLOWING [C.J.R.] TO INTRODUCE THE POLICE REPORT WHICH [C.J.R.] ALLEGES WOULD HAVE SUPPORTED HIS VERSION OF THE EVENTS.
II. THE COURT COMMITTED REVERSIBLE ERROR BY NOT RULING ON [THE] HARASSMENT CLAIM IN HIS DOMESTIC VIOLENCE COMPLAINT.
III. THE TRIAL COURT DID NOT MAKE VALID CONCLUSIONS BASED ON THE EVIDENCE PRESENTED.
IV. [THE] PHOTOGRAPHS MARKED D-1 SHOULD BE AVAILABLE TO THIS COURT.

These claims have no merit.

We begin by restating the well-established principle that when error in a judge's fact-finding is asserted, our scope of review is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). We will only decide whether considering the proof as a whole, there is substantial evidence in the record that supports the judge's findings. Ibid. (citation omitted). Because the trial judge had the opportunity to assess the credibility and demeanor of the witnesses firsthand, we defer to the judge's factual determinations, so long as they are supported by substantial credible evidence in the record. Ibid.; see also State v. Locurto, 157 N.J. 463, 474 (1999).

This standard is further amplified in the context of Family Part proceedings. In reviewing a judge's decision to issue an FRO, we must affirm if there is sufficient evidence to establish an act of domestic violence and the need for a restraining order. J.D. v. M.F., 207 N.J. 458, 488 (2011); Cesare v. Cesare, 154 N.J. 394, 413-16 (1998). Moreover, because Family Part judges "have been specially trained to detect the difference between domestic violence and more ordinary differences that arise between couples," their determinations on the need for a restraining order are also entitled to deference. J.D., supra, 207 N.J. at 482.

In adopting the Act, the Legislature intended "to assure the victims of domestic violence the maximum protection from abuse the law can provide." Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995) (quoting N.J.S.A. 2C:25-18). The term "victim of domestic violence" refers to persons protected by the Act and includes a person who is a "spouse," as plaintiff is here. N.J.S.A. 2C:25-19(d).

"Domestic violence" means an occurrence of one or more of the fourteen specific criminal acts inflicted upon a person protected by the Act. N.J.S.A. 2C:25-19(a). The predicate act of harassment is established if a person "with purpose to harass another" engaged in a "course of alarming conduct or repeatedly committed acts with purpose to alarm or seriously annoy [another] person." N.J.S.A. 2C:33-4(c). A person commits assault if he or she "attempts to cause or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1(a)(1).

However, the commission of one or more of the enumerated acts does not automatically require the issuance of an FRO. Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). The court must consider other factors, including, but not limited to, the prior history of domestic violence between the parties and the existence of immediate danger. N.J.S.A. 2C:25-29(a); see Peranio, supra, 280 N.J. Super. at 54; see also Cesare, supra, 154 N.J. at 402 (a judge may find prohibited conduct from an ambiguous incident based upon the parties' past history of violence).

Thus, in considering a complaint for domestic violence, a judge has a two-fold task: "[f]irst, 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;" and second, "whether a domestic violence restraining order is necessary to protect [a] plaintiff from immediate danger or further acts of domestic violence." Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006).

We will not second-guess a Family Part judge's fact-findings. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). We must defer to the findings of the trial judge, who is in a much better position to determine whether the evidence presented proved both the predicate offense and the need for a restraining order. Cesare, supra, 154 N.J. at 413.

Applying the circumscribed review standard here, we accept the trial court's findings, as they are supported by substantial credible evidence in the record. The trial judge heard the testimony and observed the witnesses, then thoroughly articulated her findings. Accordingly, we affirm substantially the judge's oral opinion of October 6, 2011.

We add the following to address C.J.R.'s contention that the court erred by not admitting the police report into evidence. C.J.R. offered the police report, which contained statements of both parties, to corroborate his testimony. The police officer was not present at the FRO hearing to testify. The judge determined that the report, and C.J.R.'s statement in the report, was hearsay and did not admit it in evidence. See N.J.R.E. 805 (explaining that a "statement within the scope of [a hearsay] exception . . . shall not be inadmissible on the ground that it includes a statement made by another declarant which is offered to prove the truth of its contents if the included statement itself meets the requirements of [a hearsay] exception"). A police report is undoubtedly hearsay, as it is an out-of-court statement offered in evidence to prove the truth of the matter asserted. N.J.R.E. 801(c). Such statements may be properly admitted only if one of the exceptions to the hearsay rule applies, for example as a business record under N.J.R.E. 803(c)(6). As the trial judge determined, plaintiff's statement in the police report was also hearsay and admissible only if it independently fell within an exception to the hearsay rule. N.J.R.E. 805. C.J.R. did not offer any valid reasons why the report should be admitted under one of these hearsay exceptions.

"[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion . . . .'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). As such, "an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." Ibid. (citations omitted).

We find no error in the trial court's ruling denying the admission of the report.

Affirmed, on both appeals.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION