C.L., v. J.C.,

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6296-10T2

C.L.,

v.

J.C.,

______________________________

July 18, 2012

Argued: May 23, 2012 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-312-12.

Justin T. Loughry argued the cause for appellant (Loughry and Lindsay, LLC, attorneys; Mr. Loughry on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant J.C. appeals from a final restraining order (FRO) entered against him and in favor of plaintiff C.L. based on a finding of the predicate act of assault under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. In part, he challenges the record as insufficient to support the offense and to warrant the issuance of restraints under the Act. We agree and reverse.

The parties have lived together, unmarried, for thirty years. They have three sons together, J.C., Jr. and D.C., who are emancipated, and B.C., who was seventeen at the time. Defendant owns a home in Camden, where the family lived at the time of the events, as well as its adjacent row or twin house.

On July 3, 2011, plaintiff observed defendant at a supermarket in the presence of another woman, angrily approached him regarding suspected infidelity, and a confrontation ensued, continuing at the family residence. That evening plaintiff filed and was granted a temporary restraining order (TRO) based on the offense of assault and the allegation that defendant "grabbed her under her arm and threw her on the floor of their house. She state[d] she ha[d] bruises on arms."

The court convened the final hearing on July 12, 20ll, but dismissed it when plaintiff did not timely appear. The next day the court reopened the proceeding and held a hearing.

Both parties were self-represented. They testified, as did their son D.C. Plaintiff testified that she and D.C. went to a ShopRite in Cinnaminson. While D.C. waited in the car, she went into the store and ran into defendant shopping with another woman. Plaintiff approached and confronted defendant, accusing him of cheating on her. Plaintiff testified that defendant then "grabbed me through my neck, he tightened my arm, he pushed me, he took me all the way out from the ShopRite . . . to . . . the parking lot." She estimated he held her for three to five minutes. Plaintiff testified she called for help and D.C. came out of the car and told defendant to take his hands off her. Plaintiff claimed that at one point, "[she] fell to the ground." Plaintiff testified that defendant kept pushing them away and told D.C. to take them home. Plaintiff and D.C. eventually got in the car and left.

According to plaintiff, when defendant returned to the house shortly afterwards, a dispute broke out between one of their sons and defendant in the living room. Her son was telling his father to leave the house, but he refused. Plaintiff testified she "got inside the middle" of the fight at one point, at which time defendant "grabbed" and "shook" her and "threw [her] against the floor." Plaintiff then ran out of the house and asked a neighbor to call the police.

D.C. testified that his uncle and his young nephew were also present with him and his mother at ShopRite that day. He stayed in the car while the others went into the store. When he heard his mother shouting "help" and calling his name, he got out of the truck and saw his father pushing his mother away from the supermarket after defendant. D.C. testified that his mother told him she found his father cheating on her with another woman and his father asked them to go home because he "[didn't] want any problems." Plaintiff repeated that she could not believe he was cheating on her and she ran back into the supermarket after defendant. D.C. followed her and observed her confronting defendant, who was standing with a woman and children and packing a grocery cart, after which defendant grabbed her and pushed her out of the store. D.C. then confronted defendant about his infidelity, and defendant got into his car with the woman and children.

D.C. explained that they returned to the house, where they met his aunt and his younger brother. D.C. told plaintiff to call the police because she had "marks" on her, but she refused. Defendant then came over, D.C. ordered him to leave, defendant picked up the phone to make a call, and D.C. took the phone from him. Plaintiff then approached defendant, telling him "to be honest." According to D.C., defendant then tightly grabbed plaintiff's hands and pushed her to the floor. Plaintiff got away and ran outside. The police arrived shortly afterwards, and plaintiff and D.C. went to the police station, where plaintiff obtained a TRO. D.C. showed the judge pictures of plaintiff's bruises that were taken on B.C.'s cell phone.

Defendant testified that he was shopping with a woman friend, and later admitted after extensive questioning by the court that he was romantically involved with her. He stated that when plaintiff confronted him he did not grab her, but "put his hands around her, and [he] walked her out through the store" to the parking lot because he "[didn't] want any conflicts." Defendant then saw his son D.C., who had gotten out of the car, and asked him to take plaintiff home and he would talk to her when he got home. Defendant explained that plaintiff followed him back inside the store and confronted the other woman, after which defendant took plaintiff back out to the car. He said D.C. then confronted him and while they were arguing, he realized his nephew was crying in the car so he left and walked back into the store. Defendant observed plaintiff's brother walking out of the store, getting into the car, and the family driving away. Defendant testified he did not see plaintiff fall outside of the ShopRite.

Defendant's explanation of the encounter at his home was also slightly different. When he entered, his oldest son J.C., Jr. was ready to beat him up. Everyone was trying to hold J.C., Jr. back but he broke free and pushed plaintiff, causing her to fall. Defendant testified he tried to reach the phone to call the police, but D.C. knocked it out of his hand and J.C., Jr. punched him in the face. Defendant reported that he grabbed his cell phone from the trunk of his car and called the police but when they saw plaintiff's bruises, they arrested him.

Plaintiff also presented a picture that she took "maybe like five or six, seven years ago" when defendant "put a hand on [her]" that she described as the incident when defendant "put a gun to [her] son's head." Defendant denied he did anything like that. During testimony defendant mentioned that they "had problems before where [J.C., Jr.] touched [him]" and he had to call the police to remove him from the house. However, there was no clarification of whether the alleged incident plaintiff was referring to involved J.C., Jr. or another son.

The court questioned the parties about their employment. Plaintiff testified she worked forty hours a week at $8 an hour. Defendant testified he worked more than forty hours a week, including overtime, making approximately $60-$70,000 annually.

The court credited the testimony of plaintiff based on it being "extremely detailed" and the testimony of D.C. as consistent with that of his mother. The court made a credibility assessment against defendant, in large part based on his reluctance to admit the affair at first. The court found the predicate act of assault and issued an FRO, concluding:

She knew that something was wrong when she saw him with this other woman, and he was afraid there was going to be a confrontation, so he's shuffling her out the door as fast as he can get her out because he doesn't want her and [the other woman] to have any kind of confrontation in the store and have the police called.

When she gets out of the store, she says then she called, "Help, help," to her son, which is exactly what his testimony was without him being in here to listen to hers. His testimony was exactly the same as her testimony, that he came out of the car, told his father, "Get your hands off my mother," . . . [a]nd the incident escalated from there to her falling. There [were] photographs shown to me of her knee, which is swollen as a result of the fall in the parking lot at the ShopRite.

I believe that there was an act of assault committed on [C.L.], both in the ShopRite parking lot and back at her home, wherein she tried to intervene between father and son, was pushed aside, fell to the ground again back at the house. Ultimately, she is released from [J.C.'s] grasp somehow, she gets away from him, runs out the door, and goes to a neighbor.

I believe that she has been the victim of an act of domestic violence in the form of an assault, and I find that [J.C.'s] testimony is not credible. He lied in the beginning of his testimony, and the old adage is, "False in one, false in all." He demands respect from his son, tells me that that's the reason why he and his son had an altercation, and yet does nothing to command that respect. He's a liar and a cheat, and he thinks it's okay to do that and, yet, demand respect from his children. And, as parents, we only get respect when we earn it. So when we act in the manner that he has acted, he is doing everything possible to undermine the respect that his children would have had for him, by cheating on this woman he's lived with for 30 years, then trying to hide it, then lying to the Court about it, even as we sit here today.

I am going to enter a final restraining order in this matter against [J.C.].

The court granted plaintiff exclusive possession of the property and custody of B.C., and ordered defendant to pay $80 per week child support, and the mortgage payments, real estate taxes, and water bill on the property. This appeal ensued.

On appeal, defendant argues:

POINT I

THE COURT'S FINDING OF ASSAULT MADE NO ANALYSIS OF MENS REA AND THE RECORD DOES NOT PROVE MENS REA SUFFICIENT TO RENDER THE EVENTS IN ISSUE AN ASSAULT.

POINT II

THE COURT FAILED TO MAKE ANY FINDING OF NECESSITY FOR A DOMESTIC VIOLENCE RESTRAINING ORDER, INSTEAD SIMPLY DECLAIMING AGAINST THE PERCEIVED SORRY STATE OF DEFENDANT'S CHARACTER; INDEED, THE RECORD WOULD NOT SUPPORT ANY FINDING OF IMMEDIATE DANGER TO PLAINTIFF OR PROPERTY, SUCH THAT EVEN IF THE FINDING OF A PREDICATE CRIME OF ASSAULT COULD BE SUSTAINED, THERE STILL IS LACKING THE REQUIRED BASIS FOR THE ISSUANCE OF A DOMESTIC VIOLENCE RESTRAINING ORDER, I.E. AN IMMEDIATE DANGER TO PLAINTIFF OR PROPERTY.

POINT III

THE COURT'S EXTENSIVE AND ADVERSARIAL QUESTIONING ON THE DISTINCTLY COLLATERAL ISSUE OF THE CHARACTER OR NATURE OF DEFENDANT'S RELATIONSHIP WITH A WOMAN OTHER THAN HIS LONG TIME LIVE[-]IN DOMESTIC PARTNER CROSSED THE LINE FROM INQUIRY AND CLARIFICATION INTO AN ADVERSARIAL CONFRONTATION THAT IMPAIRED THE IMPARTIALITY OF THE TRIBUNAL AND DEPRIVED DEFENDANT OF DUE PROCESS.

POINT IV

THE COURT'S FOCUS ON DEFENDANT'S INFIDELITY TO THE VIRTUAL EXCLUSION OF ALL ELSE LED THE COURT TO IGNORE THE CONFLICTS IN THE MATERIAL TESTIMONY IN PLAINTIFF'S CASE AND THUS THE COURT'S "CREDIBILITY" FINDINGS ARE FLAWED AND DO NOT MERIT THE CUSTOMARY DEFERENCE.

POINT V

THE COURT EXCEEDS ITS AUTHORITY IN ORDERING DEFENDANT IN EFFECT TO FUND RENT[-]FREE HOUSING FOR HIS NON-MARRIED MATE INDEFINITELY.

In a non-jury case, we generally defer to findings of fact by the trial court, which "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We will not disturb these findings on appeal unless the trial judge's findings are "so wholly insupportable as to result in a denial of justice." Rova Farms, supra, 65 N.J. at 483-84 (internal quotation marks and citation omitted).

In Silver v. Silver, we held that a judge considering a complaint for a domestic violence restraining order 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:25-19a 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." 387 N.J. Super. 112, 125-26, 128 (App. Div. 2006). Whether a restraining order should be issued depends on the seriousness of the predicate offense, see Cesare, supra, 154 N.J. at 402, on "the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse," and on "whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. l995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. l995); see also N.J.S.A. 2C:25-29(a).

Here, though not referencing any of the statutes, the judge found defendant guilty of simple assault, N.J.S.A. 2C:12-1a(l), which would constitute domestic violence pursuant to the Act, N.J.S.A. 2C:25-19a(2). Simple assault occurs when one "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]" N.J.S.A. 2C:12-1a(1). Under the statute, simple assault "requires a purpose to cause injury." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:12-1 (2012). However, "[i]ntent can be proven from the surrounding circumstances." Ibid.

The court conclusorily found plaintiff had been "assaulted" but made no express findings as to defendant's intention to cause injury and the resulting causation of injury. It is undisputed that plaintiff confronted defendant in the supermarket when she observed him with another woman. Accepting the court's credibility assessment and plaintiff's testimony in its entirety, defendant then grabbed her neck and upper arm and shuffled her out of the store as fast as he could to avoid a scene and possible police involvement. The court then found the incident in the parking lot escalated to plaintiff "falling." The court made no finding that defendant shoved plaintiff or caused her to fall and, in fact, plaintiff's testimony was that during the altercation between defendant, herself and their son, D.C., in the parking lot, "at some point" she "fell to the ground." If defendant's conduct did not cause plaintiff's fall in the parking lot, it is irrelevant that the photograph depicted plaintiff with a "swollen" knee, which the court concluded resulted from plaintiff's fall in the parking lot.

The court also made no finding that defendant had a "purpose" or "intent" to cause injury to plaintiff either at the supermarket or at their house, or recklessly caused her injury. To the contrary, the court found the reason defendant placed his hands on plaintiff and directed her out of the ShopRite was because she caught him with another woman with whom he was romantically involved and because "he was afraid there was going to be a confrontation," he "shuffl[ed] her out the door as fast as he [could]" to avoid the "confrontation in the store and have the police called."

In fact, the record would not support a finding of intent to injure. We understand plaintiff's dismay about learning of defendant's infidelity. However, we note that it was plaintiff who confronted defendant in the supermarket, who would not leave the store when he asked her to do so, and who charged back into the store a second time to confront defendant and the "other woman" when defendant begged plaintiff and their son to go home and they would discuss the matter later. The court recognized that there was a fracas at the house with defendant's family justifiably angry at defendant for his apparent infidelity.

Similarly, the court's finding of assault at the house was based on plaintiff being "pushed aside" and falling to the ground when "she tried to intervene" in the altercation between defendant and one of their sons. That clearly does not evidence an intent by defendant to cause injury to plaintiff.

Even if there had been sufficient basis for the finding of assault, the commission of one or more predicate offenses listed in the domestic violence statute, N.J.S.A. 2C:25-19a, does not automatically warrant issuance of a restraining order. Plaintiff did not testify with any specificity about a history of abuse or prior domestic violence and the court made no such finding. Nor did the court assess plaintiff's need for final restraints to protect against immediate danger or future acts of domestic violence, thus failing to make the requisite determination under the second prong of Silver for the issuance of an FRO. Supra, 387 N.J. Super. at 126-27. We are satisfied the type of conduct that occurred here is not of sufficient magnitude to constitute an act of domestic violence but, rather, falls more into the category of "domestic contretemps," which does not warrant the issuance of restraints under the Act. See Corrente, supra, 181 N.J. Super. at 250.

As to defendant's Points II and III, we understand the difficulty that a Family Part judge faces in conducting a hearing on an FRO involving two self-represented parties, particularly in trying to elicit critical facts from the parties. We agree with defendant, however, that most of the line of questioning the court pursued with defendant respecting the nature of his relationship with the other woman, and her credibility assessment respecting it, was irrelevant to these proceedings.

The Act permits the court to make orders of child support and to grant exclusive possession of the couples' residence to the victim, or to order other arrangements for the abuser to support the victim's living expenses, N.J.S.A. 2C:25-29(b)(2) and (8), if the court finds the defendant has a duty to support the victim or other dependent household members. The current order required defendant to pay plaintiff support for the parties' then seventeen-year-old son, granted plaintiff exclusive possession of the home owned by defendant where the parties had been living for a significant period of time, and required defendant to pay the mortgage, real estate taxes and water bill on the property.

We reverse the FRO and vacate the monetary order that was entered with the FRO. We stay our order for fifteen days to provide plaintiff the opportunity to file an appropriate action with the trial respecting the monetary issues if the parties are unable to reach an amicable resolution.

Reversed. We do not retain jurisdiction.