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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2511-21
E.S.N.,1
Plaintiff-Respondent,
v.
L.R.B.,
Defendant-Appellant. ___________________________
Submitted November 29, 2023 – Decided December 13, 2023
Before Judges Firko and Susswein.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FV-08-1017-22.
Tonacchio, Spina & Compitello, attorneys for appellant (Stephen R. Cappetta, on the brief).
Respondent has not filed a brief.
PER CURIAM
1 We use initials to protect the privacy of the parties and the confidentiality of these proceedings. R. 1:38-3(d)(10). Defendant L.R.B. appeals from a March 17, 2022 final restraining order
(FRO) entered in favor of his former live-in paramour, plaintiff E.S.N., pursuant
to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35,
based on the predicate act of assault, N.J.S.A. 2C:12-1(a). On appeal, defendant
contends there is insufficient evidence supporting the judge's finding he
committed the predicate act of assault, and the judge erred by concluding an
FRO is necessary to protect plaintiff from future acts of domestic violence. We
disagree and affirm.
I.
The parties began dating in May 2021 and resided together. On February
13, 2022, which was Super Bowl Sunday, plaintiff alleged in her initial domestic
violence complaint that she was emptying her bag, which contained defendant's
clothing. He stated, "that's my f****** bag," grabbed plaintiff's left hand or
wrist, and pulled her away from the bag. Plaintiff alleged defendant threatened
to shut off her phone line if she attempted to contact the police about the
A-2511-21 2 incident. In her initial complaint, plaintiff also alleged there was a prior history
of domestic violence between the parties. 2
At the ensuing trial, which commenced on February 24, 2022, both parties
were self-represented. Plaintiff testified the parties resided together for eight
months. Plaintiff explained she has post-traumatic stress disorder (PTSD) and
is under the care of a psychologist and a psychiatrist. She testified she has
congestive heart failure requiring medications. She also takes medications for
other unspecified conditions.
Plaintiff testified that on the day of the incident, February 13, 2022, after
defendant kept her up all night, she wanted a cup of coffee, but defendant poured
a cup for himself "out of spite" instead, leaving none for her. According to
plaintiff, defendant had been drinking brandy. She went to sleep on the floor.
As plaintiff proceeded to make herself a cup of coffee, she testified defendant
"start[ed] with his mouth again," and after she told him to stop or else she would
call the police, he "punched" her on the side of her face. Plaintiff testified that
after punching her, defendant stated, "now you have a f****** reason to call the
police." She testified that after falling down backwards over a space heater, she
2 Docket No. FV-08-0646. The prior complaint mentioned in plaintiff's initial domestic violence complaint is not contained in the appendix. The judge indicated the prior complaint was dismissed by plaintiff. A-2511-21 3 ran into the bathroom, became "frozen," and called 9-1-1. The punch to the face
incident is not referenced in the initial complaint. Defendant did not object to
plaintiff's testimony regarding the assault at trial.
Plaintiff testified that when the police arrived, they "demanded" she come
out of the bathroom. Plaintiff claimed an officer "got in her face" and advised
her that a temporary restraining order (TRO) was being issued against defendant.
Plaintiff testified that defendant "assaulted [her] one time before." Plaintiff
testified defendant was "joking" and "laughing" with the officers. She then
testified she chose to decline a TRO because the officers convinced her not to
put defendant outside of the home in the "weather out there." Five minutes later,
plaintiff testified she changed her mind, spoke to the 9-1-1 dispatcher again, and
requested a TRO, which was ultimately granted.
Plaintiff testified she went to the emergency room at Voorhees Virtual
Hospital on the day of the assault—February 13, 2022—and provided a copy of
her medical record to the judge. Plaintiff testified she sustained "contusions to
[her] jaw and lip" as a result of the assault. The judge admitted the medical
record into evidence without objection from defendant. The judge questioned
plaintiff as to why she told the physician at the emergency room that she had
been "punched in the face" but did not mention that defendant struck her in her
A-2511-21 4 TRO application. Plaintiff responded that the police officers were
"intimidating" her, "scared" her, and "did not help [her]." Defendant was then
given the opportunity to cross-examine plaintiff but declined to do so.
Plaintiff presented B.G. as a fact witness. He resides in the same
apartment building as the parties. B.G. testified that defendant "bangs on the
walls, bangs on the doors for hours, from [five] in the morning," defendant has
"caused lots of problems with the neighborhood," and "had the cops come
multiple times." B.G. testified that defendant "harasses [plaintiff] while the cops
are there," and the "arresting officers . . . weren't doing anything about it" and
"just told [him] to go f*** himself two times."
B.G. testified he did not witness defendant hit plaintiff, but saw "bruises
on her face," a "cut on her nose," and "scrapes on her arm" on the day of the
incident. B.G. stated on prior occasions that he observed plaintiff with "black
eyes." B.G., who apparently was on the scene when the officers arrived, testified
they did not photograph plaintiff's injuries on the date of the incident. Defendant
cross-examined B.G. about the wall banging at 5:00 a.m. B.G. responded he
lives "two doors down" from the parties, and the banging is "really loud" and
"wakes him up."
A-2511-21 5 Plaintiff also presented V.R. as a fact witness. V.R. is B.G.'s girlfriend.
V.R. also testified defendant was banging on the door two days before the
incident occurred—"like a Friday." V.R. testified that on the day of the incident,
there was an "altercation" with defendant, and the "cops were there." V.R.
testified that she and B.G. took plaintiff to the emergency room on the day of
the incident and on another unspecified occasion.
The record shows the judge observed plaintiff nodding off during V.R.'s
testimony. The judge interrupted and asked plaintiff if she was sleeping in the
courtroom during the proceedings. Plaintiff answered she had a "bad"
concussion, was "sick," and medication prescribed by her doctor made her
"sleepy," but she was "clear-minded" enough to proceed. The judge nonetheless
adjourned the proceedings at that point because he was concerned about
plaintiff's ability to focus and coherently proceed with her case. Defendant
waived cross-examination of V.R., and the matter was adjourned until March
17, 2022.
The next day, on February 25, 2022, plaintiff amended her complaint to
include allegations that she had testified to but that were not in the initial
complaint. In her amended complaint, plaintiff alleged the parties argued on
February 13, 2022, defendant was drunk, and that he kept her up all night.
A-2511-21 6 Plaintiff also included in her amended complaint that on February 13, 2022,
defendant punched the left side of her face causing her to fall backwards over a
space heater and hit her head on the kitchen floor. Plaintiff also alleged in the
amended complaint she told defendant she was calling the police, and he
responded, "now you have a f****** reason to call." Plaintiff further alleged in
the amended complaint that she got up, ran into the bathroom, locked the door,
and called 9-1-1. She claimed the inside of her mouth was bleeding where she
bit her tongue when defendant struck her.
After the police arrived, plaintiff went to the emergency room at Virtua
Voorhees Hospital where she was evaluated, underwent two CT scans, and was
diagnosed with post-concussion syndrome. Plaintiff alleged she needs surgery
as a result of the injury inflicted by defendant—cervical radiculopathy—and she
has developed heart palpitations because of resulting trauma from the incident.
The amended complaint alleged the predicate acts of assault and harassment,
and that defendant committed a prior act of domestic violence against plaintiff.
On March 17, 2022, when the trial resumed, plaintiff testified she was
diagnosed with post-concussion syndrome, which causes her to "nod" out.
Plaintiff stated she "need[s] to feel protected" and take care of herself physically.
A-2511-21 7 Plaintiff added she suffers from "memory loss" and unbearable headaches.
Defendant waived cross-examination, and plaintiff rested her case.
Defendant testified the parties resided together for about three years. He
stated plaintiff has PTSD, and he "went through a lot about that with her."
Defendant testified the "reason" plaintiff is in court is "because she just wanted
to commandeer [his] residence." He testified plaintiff had a "problem" with
"some guys . . . harassing her" or [she] needed some money." Defendant claimed
plaintiff needed a place to stay, he was living alone, and he told plaintiff that
she could come live with him. He claimed he felt "sorry" for plaintiff because
she had multiple health issues and had been on hospice care. Defendant wanted
plaintiff to watch his residence while he was working nights. Defendant testified
the parties eventually became an "item."
Defendant asserted plaintiff has a "Dr. Jekyll and Mr. Hyde" personality.
According to defendant, plaintiff "went off the deep end about a cup of coffee"
on the day of this incident. He stated he "never put [his] hands" on plaintiff and
"she has swung at [him]."
The judge asked defendant to review plaintiff's February 13, 2022 medical
record and explain the reference to her diagnosis of "contusion" to the face and
history of "trauma, patient was punched in the face." Defendant testified he "did
A-2511-21 8 not touch her," he "did not punch her," and the officers "checked her over and
there was nothing wrong with her." Defendant testified he did not accompany
plaintiff to the emergency room. Defendant stated the officers saw "no blood"
coming from plaintiff's mouth as she had claimed, and she was having one of
her "PTSD moment[s]." Defendant testified that whatever happened to plaintiff
"was not because of [him,]" and there was "nothing wrong with her" when the
police "escorted him out of the house."
Following the completion of testimony, the judge issued an oral decision.
The judge found jurisdiction was established under the PDVA because the
parties had a dating relationship and had resided together. The judge determined
that defendant had committed the predicate act of assault but not the predicate
act of harassment. In his thoughtful decision, the judge questioned plaintiff's
credibility because "her thoughts were jumbled," she seemed "confused" when
she testified, and she was sometimes "unresponsive" when the judge tried to
"redirect" her.
The judge was unpersuaded by plaintiff's filing of an amended complaint
after the first day of the hearing to include a "narrative of being punched in the
face" and that she had gone to the emergency room. The judge did not find
plaintiff's correction of the deficiency in the original TRO to be a "compelling
A-2511-21 9 reason to believe her story." And the judge emphasized defendant "adamantly"
denied he struck plaintiff.
Relying instead on the admitted medical record, the judge highlighted that
plaintiff "stated to someone at the emergency department that she had been
punched in the face." The judge went on to explain that based upon plaintiff's
statement, the hospital practitioners performed a CT scan of plaintiff's head,
brain, and facial bones, "looking for things that would have been consistent with
being struck in the face . . . [b]ecause that's what [plaintiff] came in saying
happened to her." The judge concluded the reasonable inference to be drawn
from the medical record was plaintiff was credible about what she told hospital
staff, and defendant punched her in the face on February 13, 2022,
notwithstanding the fact that plaintiff neglected to tell the judge who issued the
TRO "about being punched in the face at all."
The judge noted neither party called the investigating officers as witnesses
to corroborate their respective version of events. The judge stated plaintiff's fact
witnesses—B.G. and V.R.—did not witness the February 13, 2022 incident, but
B.G. credibly testified he saw "bruises" on plaintiff's face and a "cut on her nose"
that day. Based upon the "sufficient corroboration of plaintiff's version of
events," the judge concluded she met her burden of proving by a preponderance
A-2511-21 10 of the evidence that defendant assaulted her. The judge found plaintiff required
protection from defendant because she appeared "almost like a wounded animal
in the courtroom" at the beginning of the hearing "when she was in the same
room near . . . defendant" and needs to be "free of the threat of further physical
violence" requiring issuance of an FRO. This appeal followed.
II.
In a domestic violence case, we accord substantial deference to the family
judge's findings, which "are binding on appeal when supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)
(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).
Deference is especially appropriate when much of the evidence is testimonial
and implicates credibility determinations. Cesare, 154 N.J. at 412. We do not
disturb the judge's factual findings and legal conclusions unless 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." Ibid. (quoting Rova Farms, 65 N.J. at 484). However, we review de
novo "the trial judge's legal conclusions and the application of those conclusions
to the facts." Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)(citing
A-2511-21 11 Manalapan Realty, L.P. v. Twp. of Comm. of Manalapan, 140 N.J. 366, 378
(1995)).
When determining whether to grant an FRO pursuant to the PDVA, the
trial judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112,
125-27 (App. Div. 2006). The first Silver prong is "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." Id. at 125.
Upon finding the commission of a predicate act, the judge must then
address the second Silver prong—whether an FRO is necessary to protect the
plaintiff from future acts or threats of violence. Id. at 126. In other words, the
judge must find that "relief is necessary to prevent further abuse." J.D. v.
M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)); see also
Silver, 387 N.J. Super. at 127 (explaining the judge must find that an FRO is
necessary to protect "the victim from an immediate danger or to prevent further
abuse").
The second prong, like the first, "must be evaluated in light of the previous
history of domestic violence between the plaintiff and defendant including
previous threats, harassment and physical abuse," as well as "whether immediate
danger to the person or property is present." Silver, 387 N.J. at 124 (quoting
A-2511-21 12 Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995) (citing N.J.S.A.
2C:25-29(a)(1)-(2))).
Applying these principles, we conclude there is no basis to disturb the
judge's factual findings or legal conclusions. He had the opportunity to hear and
consider the testimony of the parties, plaintiff's witnesses B.R. and V.R., and
plaintiff's medical record. The judge had the opportunity to assess the parties'
and witness's credibility based on believability and demeanor. His factual
findings are supported by substantial credible evidence, and those facts were
correctly applied to the law. Defendant points to no evidence in the record that
undermines the judge's findings.
The judge determined that plaintiff proved the predicate act of simple
assault, N.J.S.A. 2C:12-1(a), which provides:
A person is guilty of assault if the person:
(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
(2) Negligently causes bodily injury to another with a deadly weapon; or
(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.
A-2511-21 13 The judge found plaintiff testified and amended her complaint to state
defendant "punched" her in the face on the day of the incident and went to the
hospital that day for evaluation and treatment. Thus, the judge determined
plaintiff did not "fabricate [] a story about having been punched in the face by
someone" in a hospital emergency room and undergo CT scanning "to create an
emergency room record upon which she could eventually rely upon at trial." In
his decision, the judge underscored the fact that plaintiff "forgot to tell" the
judge who issued the TRO about being "punched in the face," but the emergency
room record and the credible testimony of B.G., who saw "bruises and a cut
contemporaneous with the events alleged to have been a punch on that same
date," and who "was there and saw the aftermath," established the incident
occurred. The judge found there was "sufficient corroboration of plaintiff's
version of events" to find she met her burden of proof to establish defendant
committed the predicate act of assault. We discern no error in the judge's factual
findings or statutory interpretation on this issue.
"Bodily injury is defined as 'physical pain, illness or any impairment of
physical condition.'" State ex rel. S.B., 333 N.J. Super. 236, 242 (2000) (quoting
N.J.S.A. 2C:11-1(a)). "Not much is required to show bodily injury. For
example, the stinging sensation caused by a slap is adequate to support an
A-2511-21 14 assault." State v. Stull, 403 N.J. Super. 501, 505 (App. Div. 2008) (quoting N.B.
v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997)). "[P]hysical discomfort, or a
sensation caused by a kick during a physical confrontation, as well as pain, as
that word is commonly understood, is sufficient to constitute bodily injury for
purposes of a prosecution for a simple assault." S.B., 333 N.J. Super. at 244.
Defendant's punching of plaintiff in the face is a bodily injury for purposes of
assault.
A plaintiff need establish only a single predicate act. Cesare, 154 N.J. at
402. Therefore, we need not address defendant's arguments or analyze the
judge's dismissal of the harassment claim under N.J.S.A. 2C:33-4. The judge's
analysis satisfactorily addresses the first inquiry under Silver.
The second inquiry is whether the judge should enter a restraining order
that provides protection for the victim. Silver, 387 N.J. Super. at 127.
"Although this second determination . . . is most often perfunctory and self -
evident, the guiding standard is whether a restraining order is necessary, upon
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." Ibid.
The factors which the court should consider include, but are not limited
to:
A-2511-21 15 (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;
(5) In determining custody and parenting time the protection of the victim's safety; and
(6) The existence of a verifiable order of protection from another jurisdiction.
[N.J.S.A. 2C:25-29(a).]
The judge evaluated defendant's conduct "in light of the previous history
of violence between the parties. Silver, 387 N.J. Super. at 125-26 (quoting
Peranio v. Peranio, 280 N.J. State 47, 54 (App. Div. 1995)). The judge noted
plaintiff previously filed a TRO against defendant, but later dismissed it. The
initial TRO complaint and the amended TRO complaint alleged a prior history
of domestic violence. Plaintiff testified defendant assaulted her in the past, and
he did not rebut her testimony on this issue. The judge found plaintiff was
punched in the face, had a cut on her nose, and required treatment at an
emergency room. These findings are sufficiently supported in the record.
A-2511-21 16 Defendant claims he no longer resides with plaintiff and wishes to have
no future interactions with her, militating against the need for an FRO under the
second Silver prong. But the judge explicitly found plaintiff was physically
harmed by plaintiff and emphasized her "subjective" fear of him when she saw
him in the courtroom. Here, the judge correctly determined defendant's
egregious act of assaulting plaintiff and her requiring treatment at an emergency
room and multiple CT scans supported the issuance of an FRO. In sum, plaintiff
presented sufficient credible evidence to support both Silver prongs, and under
the totality of the circumstances, we see no evidentiary errors, oversight, or
abuse of discretion.
Affirmed.
A-2511-21 17