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NOT FOR PUBLICATION WITHOUT THE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-2771-14T2
S.G.,
Plaintiff-Respondent,
v.
A.G.,
Defendant-Appellant.
_________________________
Argued May 2, 2017 — Decided May 30, 2017
Before Judges Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FV-09-2735-14.
Michael T. Willis argued the cause for
appellant.
Emily J. Rodriguez argued the cause for
respondent (Bressler, Amery & Ross, attorneys;
Katherine E. Suell, on the brief).
PER CURIAM
Defendant A.G. appeals, after a four-day trial, from a January
7, 2015 final restraining order (FRO) based on his wife's
allegations of assault and harassment. Defendant argues that the
judge: did not perform his analysis concerning the need for an FRO
thoroughly; improperly considered defendant's violations of the
temporary restraining order (TRO); improperly considered
defendant's learning disability as a reason plaintiff required
protection; and made findings inconsistent with the record. We
disagree and affirm.
The parties had been married for fifteen years at the time
of trial. They have nine-year-old fraternal twins. Plaintiff
S.G. alleged that during an argument on June 18, 2014, defendant
grabbed plaintiff's left arm and started punching her forearm and
then her upper arm "even harder." Plaintiff stated that defendant
told her he was going to kill her in a "mean I-am-going-to-kill-
you voice." She said she was able to pull her arm away from him
and then run down the steps yelling for her children to "get out."
Defendant acknowledged that they had an argument, but claimed the
he did not "lay hands" on plaintiff or threaten to kill her.
Bayonne Police Officer Martin Gil and another officer
responded to plaintiff's 911 call. Plaintiff waited outside for
the police to respond. She testified that she told the two
responding officers that defendant hit her, but showed them only
her forearm and not her upper arm. Officer Gil stated that
plaintiff did not show him any injury. Officer Gil remembered
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that the woman he spoke to was "a little concerned maybe for her
safety."
Later that day, plaintiff went to the police station to obtain
a TRO alleging assault, harassment and terroristic threats;
pictures were taken of her arm. Although served with the TRO
restraining his contact with plaintiff, defendant continued to
contact plaintiff by text message, phone and email. Defendant
claimed his dyslexia prevented him from reading or understanding
the contents of the TRO.
At trial, plaintiff presented photographs of her arm after
the incident. Some were taken by a staff member of the Domestic
Violence unit the day of the incident and others were taken five
days after the events by a co-worker. The photographs of her
under-arms showed scratch marks from defendant's nails. Defendant
responded that he noticed the bruise on plaintiff's arm a week
prior to the argument; he claimed she received the bruise at work.
Plaintiff testified she obtained a TRO because she was "scared."
She said she wanted an FRO because she did not feel safe with
defendant. She testified that he had erratic mood swings and was
severely depressed.
Plaintiff also testified to three prior incidents of domestic
violence that were related in all versions of her TRO. Defendant
denied any violence alleged in the three prior incidents.
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Plaintiff first testified to an incident years earlier, in June
2010, when she called the police. Plaintiff stated that during
this time period the young children were regularly sleeping in
their parents' bed. On this night, their daughter had fallen
asleep in the parties' bed and defendant at some point took her
into her own room and put her in the crib.
When plaintiff walked into the twins' room she saw defendant
holding down their daughter in the crib as the child cried and
struggled to get up. Defendant then ran downstairs and at first
refused to let plaintiff past the safety gates. After this, he
started repeating that the kids should be in their bed and that
he was told by a nurse they should not be in their parents' bed.
Plaintiff testified the defendant's tone was scaring her and so
she called the police.
In the second incident, plaintiff testified that in March
2011 she and defendant were arguing near the doorway of their
house about whether defendant could take the car and drive to his
friend's house to buy marijuana when he punched her two or three
times in her temple.
Finally, plaintiff recounted a nighttime incident in 2012
when defendant mistreated the children. Plaintiff testified that
she threw a glass of water at defendant. Defendant then picked
up a laundry basket and started hitting her on the right side of
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her head, near her temple area. She stated she kept reaching out
and finally grabbed defendant's glasses. After this, they both
stopped and plaintiff gave defendant his glasses back.
Plaintiff also testified to defendant's continued contact
with her after the initial TRO was issued. Defendant sent
plaintiff around twenty-three text messages. Two of these messages
contained photographic attachments of defendant. One of the text
messages threatened to cancel plaintiff's cell phone, and indeed
it was turned off around that time. Defendant admitted that he
took plaintiff off the cell phone plan, but indicated it was just
a mistake and not intentional. Defendant admitted that he sent
plaintiff text messages after the first TRO "to save the marriage."
Defendant also called plaintiff twenty-four times. Several
of defendant's voice messages were played for the court; plaintiff
identified the calls as coming from defendant's number and stated
she recognized defendant's voice. Plaintiff also testified to
five e-mails received after the TRO, which contained articles or
information about love, marriage and Judaism. Defendant admitted
sending the emails.
During cross-examination, defendant read part of the July 10
amended TRO into the record which prohibited him "from having any
oral, written, personal, electronic, or other form of contact or
communication with plaintiff." He admitted that after the June
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18 incident he was aware he was not allowed to return to the
marital home. He also admitted that by July 19 – the time of one
of the voice messages – he knew he was not supposed to call
plaintiff. Plaintiff testified that she did not respond to any
of defendant's messages and she was "upset" that he was contacting
her.
Plaintiff and defendant both testified that defendant had a
learning disability. Defendant testified that since his mid-
forties he had been prescribed medication for ADHD, but stopped
taking it because it was "giving [him] symptoms of a heart attack."
Defendant further testified that having dyslexia affected his
"[s]pelling, memory, reading, comprehending, . . . paying
attention, being able to read a book through and then remembering
what I read." Defendant testified four different times that people
who have ADHD often act before they think.
The judge began his oral decision by noting that he decided
the case based on the credibility of the parties. He stated:
And credibility isn't some magical
determination. A lot of it is sort of common
sense, a lot of it is assessing people's
demeanor in court and seeing how they testify,
the manner in which they testify, the types
of answers they give to questions, whether
those answers make sense, whether they seem
to comport with what might be normal behavior
or assessments of certain situations. And
that's essentially, again, what I'm indicating
the case comes down to.
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The judge found plaintiff to be "very measured throughout
this trial." On the other hand, the judge found defendant to be
"a little more evasive at times . . . [and] not as forthcoming as
[plaintiff]." The trial judge found by a preponderance of the
evidence that defendant committed harassment and assault on June
18.
With regard to the terrorist threats allegation, the judge
found that defendant's statements did not meet the required legal
standard, but the judge went on to find that defendant's verbal
threat was included in the harassment charge as it would cause
plaintiff to be fearful or annoyed. The judge also found by a
preponderance of the evidence that defendant had committed the act
of assault.
The judge noted that he did not consider the potential
violations of the restraining order as a predicate act of
harassment. He stated that:
the record should bear out – I am not and have
not considered the "subsequent acts" of
potential violations of the restraining order,
things of that nature, as it relates to
whether or not those are acts of harassment.
I am basing my decision, as I've indicated and
the record will bear out, on the allegation
in question from June 18th.
The judge did, however, consider the subsequent acts in his
consideration of whether a restraining order was necessary to
protect plaintiff from further harassment. The judge stated,
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"it's difficult to say that there's no need for a final restraining
order when . . . from the Court's perspective [defendant] . . .
has shown that he doesn't abide by the terms of the order."
For a court to find that an FRO under the Prevention of
Domestic Violence Act (Act) is warranted, it must find initially
that the plaintiff established by a preponderance of the evidence
that the defendant committed one of the offenses enumerated in
N.J.S.A. 2C:25-19(a) as an act of domestic violence. Franklin v.
Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006). "If the court
finds a defendant committed one or more of the predicate acts
listed in N.J.S.A. 2C:25-19(a), the judge must determine whether
an FRO is needed to protect the victim." A.M.C. v. P.B., 447 N.J.
Super. 402, 413 (App. Div. 2016).
Harassment, N.J.S.A. 2C:25-19(a)(13), is committed when a
person, with purpose to harass:
a. Makes, or causes to be made, a
communication or communications anonymously
or at extremely inconvenient hours, or in
offensively coarse language, or in any other
manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking,
shoving, or other offensive touching, or
threatens to do so; or
c. Engages in any other course of alarming
conduct or of repeatedly committed acts with
purpose to alarm or seriously annoy such other
person.
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A person is guilty of assault, N.J.S.A. 2C:25-19(a)(1), when
he or she "[a]ttempts to cause or purposely, knowingly or
recklessly causes bodily injury to another." A.M.C., supra, 447
N.J. Super. at 410.
In domestic violence cases, "review of a trial court's factual
findings is limited." J.D. v. M.A.D., 429 N.J. Super. 34, 42
(App. Div. 2012). Family Part judges "have been specially trained
to detect the difference between domestic violence and more
ordinary differences that arise between couples." J.D. v. M.D.F.,
207 N.J. 458, 482 (2011). "[W]e grant substantial deference to
the trial court's findings of fact and the legal conclusions based
upon those findings." N.T.B. v. D.D.B., 442 N.J. Super. 205, 215
(App. Div. 2015) (quoting D.N. v. K.M., 429 N.J. Super. 592, 596
(App. Div. 2013), certif. denied, 216 N.J. 587 (2014)).
Defendant argues that even if the judge found plaintiff more
credible, an FRO was not necessary for her protection. We recently
held that
[w]hen the predicate act is an offense that
inherently involves the use of physical force
and violence, the decision to issue an FRO "is
most often perfunctory and self-evident." But
even when the predicate act does not involve
physical violence, the trial court must still
evaluate the factors in N.J.S.A. 2C:25-
29(a)(1) to -(6) to determine whether an FRO
is warranted to protect the victim from an
immediate danger or to prevent further abuse.
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A.M.C., supra, N.J. Super. at 417 (internal
citations omitted) (quoting Silver v. Silver,
387 N.J. Super. 112, 127 (2006)).
The judge evaluated the necessity of future protection using
defendant's violation of the TRO as one indication. In evaluating
prong two of Silver, the central inquiry is "whether a domestic
violence restraining order is necessary to protect plaintiff from
immediate danger or further acts of domestic violence." Silver,
supra, 387 N.J. Super. at 128. To make this determination, a
court should consider "[t]he nonexclusive statutory factors
includ[ing] the 'previous history of domestic violence between the
plaintiff and defendant, including threats, harassment and
physical abuse,' the 'existence of immediate danger to person or
property,' and the 'best interests of the victim and any child.'"
N.T.B., supra, 442 N.J. Super. at 223 (quoting N.J.S.A. 2C:25-
29(a)(1)-(2), (4)) (emphasis added).
Simple assault under N.J.S.A. 2C:12-1(a)(1) does not require
that the bodily injury be "serious". Contrary to defendant's
argument, the fact that plaintiff was not seriously injured does
not demonstrate that an FRO was not necessary for her protection.
At trial, defendant contended that by considering violations
of the TRO, which could have been charged as criminal offenses,
N.J.S.A. 2C:29-9(b), the court was improperly according him fewer
protections than he would have received if the violations were
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heard in a criminal setting. Defendant continues that novel
argument on appeal, asserting that, because the criminal violation
of a restraining order requires the State to meet the "beyond a
reasonable doubt" legal standard, higher than the civil
"preponderance of the evidence" standard, that the judge's
decision to consider the post-TRO behavior in the Silver analysis
was incorrect.
Amendments of a TRO provide notice to defendants of
allegations to be proven at trial. See M.D.F., supra, 207 N.J.
at 479-80; J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div.
1998). As to whether post-TRO violations can be added as a
predicate act, the statute N.J.S.A. 2C:25-19(a)(17), effective
after this trial, allows it. The judge, however, did not use
post-TRO activity as a predicate act in this pre-amendment trial,
but rather, appropriately, used the TRO violations as evidence
that plaintiff needed an FRO to protect her against defendant's
harassment.
Defendant also argues that the court improperly considered
his own testimony that he has ADHD. Defendant argues that trial
judge drew from this testimony, which was not supported by any
expert diagnosis, that defendant has violent tendencies due to his
condition. Defendant testified four times at trial that
individuals with ADHD sometimes act without thinking. In doing
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so, defendant was attempting to provide an explanation for his
non-responsive answers and poor memory. Defendant was also using
this argument, along with his diagnosis of dyslexia, to explain
why he did not initially adhere to the TRO.
The judge did mention defendant's diagnoses as support for
his determination that defendant might act before thinking, thus
presenting a danger to plaintiff. While this inference in a
different case would be troubling, defendant's trial presentation
amounted to invited error. "The doctrine of invited error operates
to bar a disappointed litigant from arguing on appeal that an
adverse decision below was the product of error, when that party
urged the lower court to adopt the proposition now alleged to be
error." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.
328, 340 (2010) (quoting Brett v. Great Am. Recreation, 144 N.J.
479, 503 (1996)). "A party who consents to, acquiesces in, or
encourages an error cannot use that error as the basis for an
objection on appeal." Spedick v. Murphy, 266 N.J. Super. 573,
593, (App. Div.), certif. denied, 134 N.J. 567 (1993).
Defendant advanced an interpretation of his learning
disabilities for his own strategic purpose. He cannot, therefore,
now challenge the validity of judge's findings based on a lack of
expert testimony, when he himself conceded to and advanced that
position.
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Defendant's attacks on the judge's credibility assessments
are without sufficient merit to require discussion in a written
opinion. R. 2:11-3(e)(1)(E). We defer to the trial judge's
assessment of credibility, especially when, as here, those
determinations are supported by reference to the record. M.A.D.,
supra, 429 N.J. Super. at 42.
Affirmed.
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