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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3050-15T2
V.A.Z.,
Plaintiff-Respondent,
v.
J.M.W.,
Defendant-Appellant. _______________________________
Submitted April 24, 2017 – Decided May 2, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FV-08-0779-16.
Jef Henninger, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Appellant J.M.W. appeals from a February 11, 2016 final
restraining order ("FRO") entered in favor of respondent V.A.Z.
pursuant to the Prevention of Domestic Violence Act of 1991
("PDVA"), N.J.S.A. 2C:25-17 to -35. We affirm. We derive the following facts from the record. The parties
had been living together for approximately ten months at the time
of the incidents on January 26, 2016 that are the subject of this
appeal. They also have a child, born in May 2015.
V.A.Z. testified that on January 26, 2016, she and J.M.W. had
a verbal argument after he failed to feed the baby. V.A.Z. then
went into a bedroom to watch television on an iPad. V.A.Z. stated
that J.M.W. came into the room and grabbed the iPad away from her
and accused her of texting another man. J.M.W. complained that
V.A.Z. had deleted the internet history and pushed her against a
wall. J.M.W. then went downstairs and took V.A.Z.'s car keys,
license, and credit card to prevent her from leaving the home.
V.A.Z. saw J.M.W.'s cell phone on the bed, picked it up, and
went downstairs. When J.M.W. saw V.A.Z. with the phone, he grabbed
her by the hair and threw her against a wall to make her drop it.
After letting go of the phone, V.A.Z. picked up J.M.W.'s
PlayStation and told J.M.W. to give her a phone so she could call
the police for help. When J.M.W. refused, V.A.Z. smashed the
PlayStation with a hammer.
V.A.Z. testified that J.M.W. then grabbed her by both of her
arms, threw her into a sliding glass door, and pushed her outside
the house. She had no coat or shoes. V.A.Z. tried to find a
neighbor or a passerby to help her, but soon returned to the house
2 A-3050-15T2 and saw J.M.W. buckling the baby into a car seat. V.A.Z. asserted
that she did not want J.M.W. taking the baby "in a rage state"
and, therefore, she attempted to get inside by hitting the sliding
glass door with a plastic snow shovel.
J.M.W. then let V.A.Z. into the house. She saw that J.M.W.
had put the iPad on the kitchen table. V.A.Z. grabbed it and
texted her father to call the police. She then threw the iPad so
J.M.W. would chase it, unbuckled the baby from the car seat, and
began taking the infant upstairs to a spare bedroom. V.A.Z.
explained that the spare bedroom door was the only one with a lock
because J.M.W. had previously broken every other door. As she
went up the stairs, J.M.W. hit her in the back. V.A.Z. got to the
spare bedroom, locked the door, and waited for the police.
V.A.Z. testified that her arms and back were "extremely red"
from J.M.W. hitting her. After the police arrived, they arrested
J.M.W.
V.A.Z. cited several other acts of domestic violence that
occurred during the parties' relationship. V.A.Z. testified that
J.M.W. frequently accused her of having relationships with other
men and that he had broken several of her telephones, a laptop
computer, and an iPad. When he was upset with her, J.M.W. would
take away her driver's license and car keys to prevent her from
leaving the house without his permission. V.A.Z. also asserted
3 A-3050-15T2 that in December 2015, J.M.W. held her down on a bed and punched
her repeatedly all over her body, causing multiple bruises.
J.M.W. testified that the parties were arguing over
"something stupid." He asserted that V.A.Z. became upset because
he was talking to her while he was on the phone. She then grabbed
one of his phones and went through his messages while walking
downstairs. J.M.W. followed her and asked for the phone back.
V.A.Z. then threw the phone on the floor, picked up a hammer, and
broke his PlayStation with a hammer.
J.M.W. admitted that he took V.A.Z.'s credit card, but stated
that he did so because she had to pay for the broken game console.
J.M.W. alleged that V.A.Z. then "stormed outside" the house and
he locked the door behind her. He put the parties' baby in a car
seat because he wanted to take the child to his parents' home.
When V.A.Z. hit the sliding glass door with the shovel, J.M.W.
let her back in the house. He testified that V.A.Z. then hit him
in the back with the shovel. He also claimed that V.A.Z. struck
his head repeatedly with "open and closed fists." J.M.W. alleged
that he grabbed V.A.Z.'s arms to try to stop her from hitting him.
He stated that he also pushed her backwards and "[s]he just kind
of backed up into" the sliding glass door.
J.M.W admitted that he had previously broken at least two of
V.A.Z.'s electronic devices because he suspected she was using
4 A-3050-15T2 them to contact other men. He denied previously breaking the
doors in the house, and asserted that "[a]ll the doors upstairs
were out of level, out of line[,]" and, therefore, he took the
doors "off the[ir] hinges" so he could repair them at a future
time. J.M.W. denied hitting or injuring V.A.Z.
In a thorough oral decision rendered on February 11, 2016,
Judge Harold U. Johnson, Jr. found that V.A.Z.'s testimony
concerning the incidents was credible, while J.M.W.'s claims were
not. The judge explained that unlike J.M.W., V.A.Z. maintained
eye contact with him, testified in a calm manner, and directly
answered all questions posed to her. On the other hand, Judge
Johnson observed that J.M.W. would not look at him when he gave
his "most damaging answers" and, instead, looked down or away from
him.
Judge Johnson concluded that J.M.W.'s actions constituted
both assault under N.J.S.A. 2C:12-1, and harassment under N.J.S.A.
2C:33-4. The judge also found that V.A.Z. needed a FRO for her
protection. The judge stated:
I do find in regard to this matter that there is a need for a [FRO] in this particular case, without a doubt in my mind.
Probably darn near clear and convincing evidence and approaching beyond a reasonable doubt, but clearly by a preponderance of the evidence in this particular case.
5 A-3050-15T2 When you look at these individuals and their body language, facial expressions, demeanor and what have you in the courtroom, I believe [V.A.Z.]. I do not believe [J.M.W.].
I believe [V.A.Z.] needs protections from [J.M.W.] and I hereby enter a [FRO] on her behalf.
This appeal followed.
On appeal, J.M.W. contends that V.A.Z. failed to prove by a
preponderance of the evidence that he committed any acts of
domestic violence on January 26, 2016. J.M.W. also alleges that
the trial judge erred in finding that a FRO was necessary to
protect V.A.Z. from an immediate danger or to prevent further
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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-3050-15T2
V.A.Z.,
Plaintiff-Respondent,
v.
J.M.W.,
Defendant-Appellant. _______________________________
Submitted April 24, 2017 – Decided May 2, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FV-08-0779-16.
Jef Henninger, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Appellant J.M.W. appeals from a February 11, 2016 final
restraining order ("FRO") entered in favor of respondent V.A.Z.
pursuant to the Prevention of Domestic Violence Act of 1991
("PDVA"), N.J.S.A. 2C:25-17 to -35. We affirm. We derive the following facts from the record. The parties
had been living together for approximately ten months at the time
of the incidents on January 26, 2016 that are the subject of this
appeal. They also have a child, born in May 2015.
V.A.Z. testified that on January 26, 2016, she and J.M.W. had
a verbal argument after he failed to feed the baby. V.A.Z. then
went into a bedroom to watch television on an iPad. V.A.Z. stated
that J.M.W. came into the room and grabbed the iPad away from her
and accused her of texting another man. J.M.W. complained that
V.A.Z. had deleted the internet history and pushed her against a
wall. J.M.W. then went downstairs and took V.A.Z.'s car keys,
license, and credit card to prevent her from leaving the home.
V.A.Z. saw J.M.W.'s cell phone on the bed, picked it up, and
went downstairs. When J.M.W. saw V.A.Z. with the phone, he grabbed
her by the hair and threw her against a wall to make her drop it.
After letting go of the phone, V.A.Z. picked up J.M.W.'s
PlayStation and told J.M.W. to give her a phone so she could call
the police for help. When J.M.W. refused, V.A.Z. smashed the
PlayStation with a hammer.
V.A.Z. testified that J.M.W. then grabbed her by both of her
arms, threw her into a sliding glass door, and pushed her outside
the house. She had no coat or shoes. V.A.Z. tried to find a
neighbor or a passerby to help her, but soon returned to the house
2 A-3050-15T2 and saw J.M.W. buckling the baby into a car seat. V.A.Z. asserted
that she did not want J.M.W. taking the baby "in a rage state"
and, therefore, she attempted to get inside by hitting the sliding
glass door with a plastic snow shovel.
J.M.W. then let V.A.Z. into the house. She saw that J.M.W.
had put the iPad on the kitchen table. V.A.Z. grabbed it and
texted her father to call the police. She then threw the iPad so
J.M.W. would chase it, unbuckled the baby from the car seat, and
began taking the infant upstairs to a spare bedroom. V.A.Z.
explained that the spare bedroom door was the only one with a lock
because J.M.W. had previously broken every other door. As she
went up the stairs, J.M.W. hit her in the back. V.A.Z. got to the
spare bedroom, locked the door, and waited for the police.
V.A.Z. testified that her arms and back were "extremely red"
from J.M.W. hitting her. After the police arrived, they arrested
J.M.W.
V.A.Z. cited several other acts of domestic violence that
occurred during the parties' relationship. V.A.Z. testified that
J.M.W. frequently accused her of having relationships with other
men and that he had broken several of her telephones, a laptop
computer, and an iPad. When he was upset with her, J.M.W. would
take away her driver's license and car keys to prevent her from
leaving the house without his permission. V.A.Z. also asserted
3 A-3050-15T2 that in December 2015, J.M.W. held her down on a bed and punched
her repeatedly all over her body, causing multiple bruises.
J.M.W. testified that the parties were arguing over
"something stupid." He asserted that V.A.Z. became upset because
he was talking to her while he was on the phone. She then grabbed
one of his phones and went through his messages while walking
downstairs. J.M.W. followed her and asked for the phone back.
V.A.Z. then threw the phone on the floor, picked up a hammer, and
broke his PlayStation with a hammer.
J.M.W. admitted that he took V.A.Z.'s credit card, but stated
that he did so because she had to pay for the broken game console.
J.M.W. alleged that V.A.Z. then "stormed outside" the house and
he locked the door behind her. He put the parties' baby in a car
seat because he wanted to take the child to his parents' home.
When V.A.Z. hit the sliding glass door with the shovel, J.M.W.
let her back in the house. He testified that V.A.Z. then hit him
in the back with the shovel. He also claimed that V.A.Z. struck
his head repeatedly with "open and closed fists." J.M.W. alleged
that he grabbed V.A.Z.'s arms to try to stop her from hitting him.
He stated that he also pushed her backwards and "[s]he just kind
of backed up into" the sliding glass door.
J.M.W admitted that he had previously broken at least two of
V.A.Z.'s electronic devices because he suspected she was using
4 A-3050-15T2 them to contact other men. He denied previously breaking the
doors in the house, and asserted that "[a]ll the doors upstairs
were out of level, out of line[,]" and, therefore, he took the
doors "off the[ir] hinges" so he could repair them at a future
time. J.M.W. denied hitting or injuring V.A.Z.
In a thorough oral decision rendered on February 11, 2016,
Judge Harold U. Johnson, Jr. found that V.A.Z.'s testimony
concerning the incidents was credible, while J.M.W.'s claims were
not. The judge explained that unlike J.M.W., V.A.Z. maintained
eye contact with him, testified in a calm manner, and directly
answered all questions posed to her. On the other hand, Judge
Johnson observed that J.M.W. would not look at him when he gave
his "most damaging answers" and, instead, looked down or away from
him.
Judge Johnson concluded that J.M.W.'s actions constituted
both assault under N.J.S.A. 2C:12-1, and harassment under N.J.S.A.
2C:33-4. The judge also found that V.A.Z. needed a FRO for her
protection. The judge stated:
I do find in regard to this matter that there is a need for a [FRO] in this particular case, without a doubt in my mind.
Probably darn near clear and convincing evidence and approaching beyond a reasonable doubt, but clearly by a preponderance of the evidence in this particular case.
5 A-3050-15T2 When you look at these individuals and their body language, facial expressions, demeanor and what have you in the courtroom, I believe [V.A.Z.]. I do not believe [J.M.W.].
I believe [V.A.Z.] needs protections from [J.M.W.] and I hereby enter a [FRO] on her behalf.
This appeal followed.
On appeal, J.M.W. contends that V.A.Z. failed to prove by a
preponderance of the evidence that he committed any acts of
domestic violence on January 26, 2016. J.M.W. also alleges that
the trial judge erred in finding that a FRO was necessary to
protect V.A.Z. from an immediate danger or to prevent further
abuse. We disagree with these contentions.
Our review of a trial judge's fact-finding function is
limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A judge's
fact-finding is "binding on appeal when supported by adequate,
substantial, credible evidence." Id. at 411-12 (citing Rova Farms
Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
Moreover, "[b]ecause of the family courts' special jurisdiction
and expertise in family matters, appellate courts should accord
deference to family court factfinding." Id. at 413.
"Deference is especially appropriate 'when the evidence is
largely testimonial and involves questions of credibility.'" Id.
at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108,
6 A-3050-15T2 117 (1997)). This is so because the judge has the opportunity to
see and hear the witnesses as they testify, thereby developing a
"'feel of the case' that can never be realized by a review of the
cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198
N.J. 382, 396 (2009) (quoting D.Y.F.S. v. E.P., 196 N.J. 88, 104
(2008)). A judge's purely legal decisions, however, are subject
to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194
(App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
In adjudicating a domestic violence case, the trial judge has
a "two-fold" task. Silver v. Silver, 387 N.J. Super. 112, 125
(App. Div. 2006). The judge must first determine whether the
plaintiff has proven, by a preponderance of the evidence, that the
defendant committed one of the predicate acts referenced in
N.J.S.A. 2C:25-19(a), which incorporates assault, N.J.S.A. 2C:12-
1, and harassment, N.J.S.A. 2C:33-4, as conduct constituting
domestic violence. Id. at 125-26. The judge must construe any
such acts in light of the parties' history to better "understand
the totality of the circumstances of the relationship and to fully
evaluate the reasonableness of the victim's continued fear of the
perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App.
Div. 1998); N.J.S.A. 2C:25-29(a)(1).
7 A-3050-15T2 If a predicate offense is proven, the judge must then assess
"whether a restraining order is necessary, upon an evaluation of
the facts set forth in N.J.S.A. 2C:29(a)(1) to -29(a)(6), to
protect the victim from an immediate danger or to prevent further
abuse." J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting
Silver, supra, 387 N.J. Super. at 126-27). Whether a restraining
order should be issued depends on the seriousness of the predicate
offense, 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) (citing N.J.S.A. 2C:25-29(a)); see also
Cesare, supra, 154 N.J. at 402.
Applying these standards to the arguments raised by J.M.W.,
we discern no basis for disturbing Judge Johnson's decision to
grant a FRO to V.A.Z. The judge specifically found that V.A.Z.'s
account of the January 26, 2016 incidents was credible and there
is substantial credible evidence in the record to support that
finding. Therefore, we affirm substantially for the reasons set
forth in Judge Johnson's comprehensive oral opinion. We add the
following brief comments.
The predicate act of assault is committed when a person
"[a]ttempts to cause or purposely, knowingly or recklessly causes
8 A-3050-15T2 bodily injury to another[.]" N.J.S.A. 2C:12-1(a)(1). "Bodily
injury" is "physical pain, illness or any impairment of physical
condition[.]" N.J.S.A. 2C:11-1(a); see also State v. Stull, 403
N.J. Super. 501, 505 (App. Div. 2008).
After making credibility findings, Judge Johnson properly
applied the statute in concluding that J.M.W. assaulted V.A.Z.
several times on January 26, 2016. J.M.W. grabbed V.A.Z. by the
hair and threw her against a wall; grabbed both her arms and threw
her into a sliding glass door; pushed her out of the door; and
then hit her in the back after she re-entered the house. V.A.Z.'s
arms and back were "extremely red" as the result of these attacks.
Therefore, the judge correctly found that J.M.W. committed acts
of domestic violence in violation of the PDVA.1
With regard to the second prong of Silver, Judge Johnson
properly found that a FRO was necessary to protect V.A.Z.,
especially in view of J.M.W.'s past history of assaulting V.A.Z.,
breaking electronic devices, preventing her from leaving the
house, and kicking in doors. Silver, supra, 387 N.J. Super. at
128. We perceive no basis to depart from the judge's findings.
1 In light of our ruling that the trial judge's issuance of a FRO to V.A.Z. was fully supported under the assault statute, N.J.S.A. 2C:12-1, we need not address the judge's alternative ruling that J.M.W.'s conduct also constituted harassment under N.J.S.A. 2C:33- 4.
9 A-3050-15T2 Therefore, we affirm the judge's order granting V.A.Z. a FRO
against J.M.W.
Affirmed.
10 A-3050-15T2