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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5618-14T3
H.C.F.,
Plaintiff-Respondent,
v.
J.T.B.,
Defendant-Appellant.
_________________________________________
Argued November 2, 2016 – Decided September 7, 2017
Before Judges Fuentes, Carroll and Gooden Brown.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-1099-15.
Jill Anne LaZare argued the cause for appellant (Law Offices of Jill Anne LaZare, LLC, attorney; Ms. LaZare, on the briefs).
Sarah J. Jacobs argued the cause for respondent (Jacobs Berger, LLC, attorneys; Amy L. Bernstein, on the brief).
PER CURIAM
Defendant (husband) appeals from a July 1, 2015 final
restraining order (FRO) entered against him in favor of plaintiff (wife) pursuant to the Prevention of Domestic Violence Act (PDVA),
N.J.S.A. 2C:25-17 to -35. We affirm.
We summarize the relevant facts. Plaintiff, then forty-
years-old, and defendant had known each other since high school
and married in 2008. Their daughter was born in 2011 and all
three resided in a two-story three-bedroom house in Chatham.
Although plaintiff paid the mortgage on the home, both parties'
names were on the mortgage and the deed. Plaintiff had a degree
in finance from Georgetown University and a MBA from UC Davis and
worked full-time for the Nielsen Company, while defendant worked
part-time for the YMCA and served as a stay-at-home parent.
On June 24, 2015, plaintiff filed a complaint against
defendant seeking injunctive relief under the PDVA alleging that
defendant committed acts of domestic violence, specifically
criminal mischief and harassment. In her complaint, plaintiff
alleged that at 10:30 a.m. on June 24, 2015, defendant "punched a
door with a closed fist causing the door to come off the hinges"
after the parties "were involved in an argument" and defendant
became angry. The complaint also alleged that defendant possessed
a firearm and had "communicated via text in February of 2015 that
he would end his life to stop plaintiff's suffering." According
to the complaint, there was no prior history of domestic violence.
2 A-5618-14T3 The Family Part judge conducted an evidentiary hearing on
July 1, 2015, during which both parties were represented by
counsel. At the hearing, plaintiff testified that for the past
two-and-a-half years, plaintiff and defendant had been sleeping
in separate bedrooms in their Chatham home. According to
plaintiff, on the morning of June 24, 2015, while washing up in
the upstairs bathroom, she "noticed that . . . [her] whole neck
was red and swollen[.]" Plaintiff asked defendant "to come
upstairs and to look at [her] neck." Plaintiff waited for
defendant in her bedroom; their daughter was in plaintiff's bedroom
watching television on the bed.
When defendant came upstairs, plaintiff asked defendant
whether he could "see if there's like a bug bite or anything
here[.]" Without looking at plaintiff, defendant stated, "your
neck is not red. You're fine." Plaintiff retorted "thanks for
caring[.]" As defendant went to get their daughter from the bed,
he responded "you're such a fucking bitch[.]" In reply, plaintiff
asked "this is what you say to me?" At that point, plaintiff
testified defendant exhibited "this rage" that "struck a lot of
fear in [her]." Defendant then stated, "why do you say these
things" and "turned around" and punched her bedroom door.
According to plaintiff, defendant struck the door, which she
described as a "big solid wood door[,]" in its "[u]pper right-hand
3 A-5618-14T3 corner" with his right hand, cracking its paint and dislodging a
screw. Plaintiff testified that when defendant punched the door,
he was standing about "an arm's length" from her and punched the
door with such force that "the door came off . . . both hinges"
and "fell against . . . a wall" behind the door inside the bedroom.
According to plaintiff, the door ended up approximately "three-
and-a-half feet" from the bed where their daughter remained
throughout the incident.
Plaintiff testified that after witnessing the incident, their
daughter asked defendant why he hit the door and why he had "a
boo-boo on his hand[.]" The child's question caused defendant to
leave the bedroom and run downstairs. Plaintiff believed defendant
"was going to leave because, usually, he just leaves[] [when] we
have any disagreement[.]" However, instead of leaving, defendant
asked her to come downstairs. Plaintiff thought, "this is it, he
went and got the gun," referring to a gun defendant had acquired
when the couple lived in Arizona. Although she was afraid for
herself and her daughter, she left her daughter on the bed in her
bedroom where she believed she was safe and went downstairs to
"face" defendant.
When plaintiff went downstairs, she and defendant discussed
their failing marriage. Plaintiff indicated that she could leave
and take their daughter, to which defendant replied "you're not
4 A-5618-14T3 taking [our daughter] anywhere[.]" At that point, defendant went
back upstairs and plaintiff followed while continuing their
discussion about their marital discord. Defendant tried "to get
[their daughter] dressed, but she was agitated" and repeatedly
told defendant to "stop trying to trick mommy[.]" According to
plaintiff, defendant eventually looked at their daughter "with
this rage and this anger that [she had] never seen him have before"
and eventually abandoned his efforts to dress her.
After defendant went downstairs, plaintiff dressed her
daughter and took her with her to the doctor to have her
(plaintiff's) neck examined. Thereafter, she left her daughter
at home with defendant to take a nap and then drove to the police
station to file a domestic violence complaint and obtain a
temporary restraining order. Plaintiff explained she did not take
her daughter with her to the police station because of her young
age and she did not call the babysitter because "she's only
available at nighttime." Plaintiff testified that she went to the
police because she "was scared." According to plaintiff, she was
"scared every night when [she] go[es] to bed that [defendant]'s
going to shoot [her]." Plaintiff stated that defendant did not
have a permit for the gun but kept it in the house and refused to
tell her its location. Plaintiff also testified about another
incident that occurred in February of 2015 when defendant sent her
5 A-5618-14T3 a text that plaintiff interpreted as a threat that he would use
the gun to kill himself.
According to plaintiff, the text stemmed from an argument
that occurred after plaintiff witnessed "a major car accident"
while driving alone to the doctor for a biopsy. Horrified by the
accident, apprehensive about the biopsy, and exasperated by
defendant's lack of support, plaintiff communicated via text to
defendant her "unhappiness with the marriage, . . . his lack of
empathy and his callousness." Defendant responded in a text
stating "[d]on't worry. One of these days, I'm going to end my
life and your suffering." Concerned for her daughter's safety,
plaintiff queried, "is this . . . something you are going to do
when you are with her? Do I need to put her in daycare? Is she
not safe at home with you?" Defendant responded, "she's safe. I
wouldn't do it with her around." Although plaintiff did not
discuss the threat with defendant again, she contacted their
marriage counselor for help and forwarded the text messages to the
counselor who suggested taking defendant to the hospital. During
the weeks that followed, plaintiff also met with a divorce
attorney.
According to plaintiff, although she was "scared every day
when [she left] the house[,]" and she "knew that the marriage was
over[,]" she remained in the marital residence with defendant
6 A-5618-14T3 until the June 24, 2015 incident. Plaintiff explained that she
did not act before the incident because she was "paralyzed in
fear" and because she was "the bread winner." Plaintiff testified
that she "had to pay . . . bills and take care of the house" and
she "was afraid . . . he might hurt himself . . . [or] hurt the
baby." According to plaintiff, to protect her daughter, she
"started coming home early[,] . . . working from home on odd days[,
and] canceled business trips." She also started checking her
daughter for injuries on a regular basis. Upon being cross-
examined about a photo of defendant and their daughter that she
had posted on Facebook on June 21, 2015, with the message "Happy
Father's Day to the most loving and attentive dad I know[,] [w]e
love you[,]" plaintiff explained that she was "trying to make
something more positive, so he maybe won't be so horrible."
During his testimony, defendant admitted punching the door
as he was exiting plaintiff's bedroom. According to defendant,
after he looked at plaintiff's neck as she requested, he told her
that he "[didn't] see anything." Plaintiff responded by becoming
"extremely upset" and told defendant he did not "love her" and was
not "empathetic towards her." Defendant testified that plaintiff
"started getting loud" and using "curse words" while their
"daughter was on the bed" notwithstanding the fact that he had
repeatedly told plaintiff "not to yell at [him] and use curse
7 A-5618-14T3 words in front of [their] daughter." Defendant acknowledged that
it was the "last straw[.]" However, defendant explained that
plaintiff "was on the complete opposite corner of the room" when
he punched the door. He denied punching the door to annoy or
scare plaintiff but testified that he acted out of frustration and
regretted the fact that his daughter witnessed the incident.
According to defendant, because the "top hinges came loose"
and "[t]he screws started to pull from the door jam," he "removed
the door completely and laid it up against the wall." He denied
throwing the door against the wall and denied that the door would
have fallen on his daughter. He claimed that his punch loosened
the hinges and screws because he had failed to properly reinstall
the door after removing it to paint plaintiff's bedroom. Defendant
acknowledged that "[he] was upset" and when he asked plaintiff to
come downstairs, his tone could have been interpreted as forceful
and demanding. However, the ensuing argument was "very brief" and
they were "calm" and civil. Defendant testified he was accustomed
to their daughter insisting on being dressed by plaintiff because
she does not spend as much time with their daughter as he does.
Consequently, he went into the spare bedroom downstairs while
plaintiff dressed her before leaving for the doctor.
Defendant confirmed that plaintiff brought their daughter
home for a nap before leaving again and testified that he was
8 A-5618-14T3 eating dinner when the police arrived. According to defendant,
he was surprised because plaintiff never expressed any fear of
him. He explained that the February 2015 text was his reaction
to plaintiff complaining about his lack of ambition, empathy and
love and was written in "a joking manner." He denied threatening
to shoot himself or anyone else. Defendant also confirmed that
plaintiff asked him to move the gun from its original location in
the spare bedroom. However, he testified that he told plaintiff
that he had moved the gun to the basement. He explained further
that although "the gun [was] always loaded[,]" the "decocker,
which is a safety . . . was on" and "[the gun] was kept in a case."
He also testified that they had participated in firearms training
together in Arizona.
Defendant called as a witness the grandmother of a little boy
who had attended classes and had had play dates with his daughter.
She testified that in the two years she had known defendant, she
had never seen him angry. She also testified that defendant and
his daughter were "very close" and had a "great relationship" and
she did not believe defendant posed a danger to his child.
In an oral opinion rendered immediately after the hearing,
the judge found that the entry of a FRO was justified. The judge
noted that the case boiled down "to credibility" and found
plaintiff's version more credible, concluding that "it's more
9 A-5618-14T3 probable that this incident occurred the way the plaintiff says[.]"
Applying the first prong of the two-prong Silver1 analysis, the
court determined that plaintiff established by a preponderance of
the evidence that defendant committed the predicate acts of
criminal mischief and harassment by striking her bedroom door
while "engaged in an argument" with plaintiff with enough force
to knock it off its hinges and "damage[] the door[.]"
Regarding criminal mischief, the court noted initially that
although both parties owned the house, "it does not give
[defendant] the right to damage property in the house because the
plaintiff and defendant each own an undivided interest." The
court continued:
Defendant claims that the door was weak and needed repair, but the fact is the door is off the hinges.2 There is a crack on the door . . . and, certainly, it appears, at least to this [c]ourt, that the door was damaged with sufficient force . . . it was taken off the hinges.
Clearly, the defendant knew he was doing it and it appears that there's really no . . . issue that the door was damaged and taken off the hinges. It [sic] pulled out of the holes. Defendant even admitted to that and hitting it. That alone is a predicate act of domestic violence, criminal mischief.
1 Silver v. Silver, 387 N.J. Super. 112 (2006). 2 The court was referring to photographs depicting the damaged door that were admitted into evidence.
10 A-5618-14T3 As to harassment, the court reasoned:
Harassment becomes a little more contentious and really boils down to credibility . . . .
Clearly, the parties had an argument, a disagreement. He made a comment to her and, . . . I have to look at the response. What other reason do you hit a door? Why do you hit a door? . . . [W]hat's a legitimate reason for hitting a door, other than to . . . annoy or to alarm the other party. I can't really see . . . any other decision. I have to believe the plaintiff, that the door was damaged in an argument and looking at the door knocked off the hinges, . . . it's inescapable to me that he damaged the door with intent to harass her, to certainly alarm her. I think it's certainly alarming when somebody knocks a door off the hinges.
The court determined further that entry of the FRO was
necessary under the second Silver prong to protect plaintiff and
prevent further abuse. In that regard, the court observed:
And in February, this defendant made comments about ending his life and then didn't just end with that. The response that the plaintiff made was, why would you threaten me with that? He doesn't respond, I'm just kidding, you know I would never do that. His response is, she's safe, which means his daughter. I wouldn't do it with her around. He doesn't deny it.
That statement is very, very troubling and combined with the damage to the door, it really leads me to the conclusion that there is a potential. They're in the middle of a divorce, and I understand that . . . I have to be careful of one party . . . taking advantage of another party. But in this case, . . . it's kind of a different situation. The
11 A-5618-14T3 plaintiff has the financial wherewithal. She could leave. She could move to another house, if she wanted to. So I don't see that she's trying to take advantage of the defendant. I don't see that as being a legitimate argument.
. . . .
And then based on his past and the fact that there is a gun in the house and the comments that he made lead this [c]ourt to the conclusion that the statutory requirements are that I take every effort to protect victims and, in this case, I think that, based on the comments that he made, there's a likelihood it might occur and I have to prevent that and, on that basis, I am going to grant the restraining order.
The court also granted plaintiff temporary custody of their
daughter and exclusive possession of the marital home, but allowed
defendant liberal visitation at plaintiff's discretion after
determining that defendant did not pose a danger to their daughter.
This appeal followed. On appeal, defendant argues that the
evidence was insufficient to sustain a violation under the PDVA.
Specifically, defendant argues that plaintiff "failed to meet her
burden of proof" and the court erred in its analysis under Silver.
Defendant also argues that the court erred in awarding plaintiff
temporary custody of their daughter given the fact that defendant
has been the child's primary caregiver.
Factual findings of the trial court should not be disturbed
unless they "are so manifestly unsupported by or inconsistent with
12 A-5618-14T3 the competent, relevant and reasonably credible evidence as to
offend the interests of justice." Cesare v. Cesare, 154 N.J. 394,
412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co.,
65 N.J. 474, 484 (1974)). "Deference to the trial court's factual
findings is especially appropriate when the evidence is largely
testimonial and involves questions of credibility[,]" In re Return
of Weapons to J.W.D., 149 N.J. 108, 117 (1997), and "[b]ecause of
the family courts' special jurisdiction and expertise in family
matters[.]" Cesare, supra, 154 N.J. at 413. Reversal is warranted
only "if the court ignores applicable standards[.]" Gotlib v.
Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008).
The PDVA provides that a FRO may be issued if the court
determines "by a preponderance of the evidence[,]" N.J.S.A. 2C:25-
29(a)(1), that the defendant has committed an act of domestic
violence "upon a person protected under" the PDVA. N.J.S.A. 2C:25-
19(a). A person protected under the PDVA includes "any person who
is 18 years of age or older . . . and who has been subjected to
domestic violence by a spouse" or "any person, regardless of age,
who has been subjected to domestic violence by a person with whom
the victim has a child in common[.]" N.J.S.A. 2C:25-19(d). The
term "domestic violence" is defined in N.J.S.A. 2C:25-19(a) to
mean "the occurrence of one or more" specified acts, known as
13 A-5618-14T3 predicate acts, including criminal mischief and harassment.
N.J.S.A. 2C-19(a)(13).
A person commits criminal mischief if he "[p]urposely or
knowingly damages tangible property of another[.]" N.J.S.A.
2C:17-3(a). N.J.S.A. 2C:17-3(a) does not define what constitutes
"property of another," but we have interpreted the term to include
"damage to a [spouse's] undivided interest in the home as a tenant
by the entirety[.]" N.T.B. v. D.D.B., 442 N.J. Super. 205, 220
(App. Div. 2015). Thus, in N.T.B., we held that "in breaking down
[a spouse's] bedroom door, [the other spouse] . . . destroy[ed]
property of another and therefore committed the predicate act of
criminal mischief." Id. at 219.
A person commits harassment "if, with purpose to harass
another," he "[e]ngages in any . . . course of alarming conduct
. . . with purpose to alarm or seriously annoy such other person."
N.J.S.A. 2C:33-4(c). Harassment requires that the defendant act
with the purpose of harassing the victim and judges must be mindful
that "a party may mask an intent to harass with what could
otherwise be an innocent act." J.D. v. M.D.F., 207 N.J. 458, 488
(2011). "A finding of a purpose to harass may be inferred from
the evidence presented" and a judge may use "[c]ommon sense and
experience" when determining a defendant's intent. State v.
Hoffman, 149 N.J. 564, 577 (1997). To that end, an analysis of
14 A-5618-14T3 whether an underlying act of harassment in the context of domestic
violence has occurred requires consideration of the totality of
the circumstances. Id. at 584-85.
Pursuant to Silver, supra, 387 N.J. Super. at 125-26, when
determining whether to grant a FRO under the PDVA, the judge must
make two determinations. Under the first Silver prong, 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."
Id. at 125.
Although a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis. Therefore, not only may one sufficiently egregious action constitute domestic violence under the Act, even with no history of abuse between the parties, but a court may also determine that an ambiguous incident qualifies as prohibited conduct, based on a finding of [abuse] in the parties' past.
[Cesare, supra, 154 N.J. at 402.]
Under the second Silver prong, a judge must also determine
whether a restraining order is required to protect the plaintiff
from future acts or threats of violence. Silver, supra, 387 N.J.
Super. at 126-27. Although the latter determination "is most
often perfunctory and self-evident, the guiding standard is
15 A-5618-14T3 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." A.M.C. v. P.B., 447 N.J. Super. 402, 414 (App.
Div. 2016) (quoting Silver, supra, 387 N.J. Super. at 127).
Here, we are satisfied there is sufficient credible evidence
in the record to support the judge's finding that defendant
committed the predicate acts of criminal mischief and harassment.
We are also convinced that the record supports the judge's
determination that a FRO was required to protect plaintiff and
prevent further acts of domestic violence. Defendant's argument
that the evidence was insufficient to sustain a finding of a
violation of the PDVA under Silver is belied by the record.
Moreover, we reject defendant's contention that his conduct could
more fairly be characterized as "ordinary domestic contretemps"
similar to that in Corrente v. Corrente, 281 N.J. Super. 243, 250
(App. Div. 1995), or that the allegations were merely intended to
gain an unfair advantage in the matrimonial action similar to that
in Murray v. Murray, 267 N.J. Super. 406, 410 (App. Div. 1993).3
3 We decline to consider the unpublished opinion on which defendant relies in his reply brief. See R. 1:36-3 (stating that "[n]o unpublished opinion shall constitute precedent or be binding on any court"); see also Guido v. Duane Morris LLP, 202 N.J. 79, 91 n. 4 (2010) (rejecting use of unpublished decisions as precedent).
16 A-5618-14T3 In addition, awarding temporary custody of their daughter to
plaintiff was entirely appropriate. After granting an FRO under
the PDVA, a trial judge "may issue an order . . . awarding temporary
custody of a minor child." N.J.S.A. 2C:25-29(b)(11). When
awarding temporary custody, the PDVA requires that the trial judge
"presume that the best interests of the child are served by an
award of custody to the non-abusive parent." Ibid. When
determining parenting time, a court "shall specify the place and
frequency of parenting time[,]" but must "protect the safety and
well-being of the plaintiff and minor children" and avoid
"compromis[ing] any other remedy provided by the court by requiring
or encouraging contact between the plaintiff and defendant."
N.J.S.A. 2C:25-29(b)(3).
Here, the court presumed that granting plaintiff temporary
custody served the child's best interests as required under the
statute. The court also appropriately granted defendant "liberal
visitation . . . [but] at the discretion of the plaintiff." We
reject defendant's contention that his status as a stay-at-home
parent allows him to rebut the PDVA's presumption favoring a victim
of domestic abuse particularly since the child witnessed the
domestic abuse incident. An abuser cannot overcome the statutory
presumption by merely showing that he served as the child's primary
caretaker prior to the domestic abuse incident. J.D. v. M.A.D.,
17 A-5618-14T3 429 N.J. Super. 34, 44 (App. Div. 2012). See also Mann v. Mann,
270 N.J. Super. 269, 274 (App. Div. 1993) (upholding grant of
temporary custody of parties' three children to victim where abuser
committed criminal mischief and harassment). As we noted in J.D.,
this fact, "standing alone, [is] entirely insufficient to rebut
the presumption . . . in light of the Legislature's express
declaration that children exposed to domestic violence 'suffer
deep and lasting emotional effects' from the experience." Id. at
44 (quoting N.J.S.A. 2C:25-18).
Affirmed.
18 A-5618-14T3