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APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2583-15T4
L.S.T.,
Plaintiff-Respondent,
v.
C.V.,
Defendant-Appellant.
_________________________________
Argued May 17, 2017 – Decided June 28, 2017
Before Judges Alvarez and Lisa.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FV-14-000552-16.
Tanya N. Helfand argued the cause for
appellant (Helfand & Associates, attorneys;
Ms. Helfand, of counsel and on the briefs).
Jessica Ragno Sprague argued the cause for
respondent (Weinberger Law Group, LLC,
attorneys; Ms. Ragno Sprague, on the brief).
PER CURIAM
Defendant appeals from the January 20, 2016 final restraining
order entered under the Prevention of Domestic Violence Act of
1991 (Act), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff. The
predicate offense was harassment (N.J.S.A. 2C:33-4). See N.J.S.A.
2C:25-19a(13). Defendant argues that the entry of the order was
error because the judge's credibility determinations and factual
findings were not supported by the record, a purpose to harass was
not proven, the court failed to state why a restraining order was
necessary for plaintiff's protection, and the judge's findings of
fact and conclusions of law were not based on a sufficient analysis
of the testimony and evidence. We reject these arguments and
affirm.
The parties are both nationals of India. They were married
in India in 2007 in an arranged marriage. Defendant had already
been living in the United States. After the marriage, plaintiff
moved to the United States to live with her husband. Both parties
hold masters degrees and at all times relevant to this case they
were employed full-time in professional positions in the
information technology field. They had one child, a son, Ken
(fictitious name), who was born in 2011. The predicate offense
occurred on January 10, 2016. Ken was then four-and-one-half
years old.
The original domestic violence complaint listed assault as
the predicate offense and alleged that defendant struck plaintiff
in the face and pushed her on the couch, and that he pushed Ken
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to the floor using his leg. The complaint also stated that there
was a past history of physical violence. Prior to the hearing,
an amended complaint was filed adding harassment as an additional
predicate offense. The amended complaint also set forth a detailed
statement of prior domestic violence, listing multiple events that
occurred on specified dates throughout the years of the parties'
marriage.
The hearing on the domestic violence complaint was conducted
on January 20, 2016. Both parties were represented by counsel.
Both parties testified, as did the police officer who responded
to the scene at the time of the precipitating incident and
defendant's cousin, who had acted as an informal mediator between
plaintiff and defendant in the events leading up to the
precipitating event. A summary of the evidence follows.
After Ken's birth, the parties engaged in a routine by which
plaintiff's mother would assist in caring for him. She would take
him each year to her home in India for an extended stay of several
months. She would return to the United States to the parties'
home and live with them for up to six months at a time, caring for
Ken while both parties worked at their full-time jobs.
Plaintiff testified as to numerous specific events when
defendant became verbally and physically abusive toward her, her
mother, and Ken. We set forth some examples.
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Plaintiff said her husband often drank excessively and, when
he came home, he became argumentative. She cited an incident in
2007 when one of these episodes occurred, and "with that argument,
he -- he just grabbed my neck and then he hit me onto the wall."
In 2009, another similar episode occurred. After drinking,
defendant came home, an argument ensued, and he banged plaintiff's
head into the wall and threw things at her. Plaintiff described
that defendant starts with verbal abuse, and when the argument
heats up, "he usually hits me, like he -- he slaps me or he bangs
my head onto the wall or throws things that he has in his hand at
me. Like he throws phone or plate, whatever he has in his hand
towards me." When asked whether this happened more than once,
plaintiff answered in the affirmative.
After the 2009 incident, plaintiff said she "couldn't take
it anymore, so [she] went back to India." Defendant traveled to
India and convinced her and her family that he would "change his
behavior." Plaintiff agreed to return with defendant to the United
States.
Plaintiff testified that in 2010, when her brother was here
with them, defendant slapped her. Her brother warned him "saying
like, if you ever do that again, he said he'll call the cops."
Plaintiff described an incident in 2015, when her mother was
staying with the parties. When plaintiff returned from work, her
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mother told her that defendant had been very abusive toward her.
Plaintiff told defendant, "if you have any issues, then you have
to deal with me, my mom is just visiting." And "that's when he
hit me again." Plaintiff did not call the police, but her mother
called plaintiff's brother in California, and "he called cops from
there because he was very worried for me and my mom." When the
police arrived, plaintiff testified that defendant directed her
not to "mention about any physical abuse or anything otherwise I'm
going to give you a hard time." She complied and told the police
these were only verbal arguments, and no complaints were filed.
Plaintiff moved out of the marital home on January 4, 2016.
She had already rented an apartment and was planning to move out
of the marital home. On January 3, 2016, she was eating her lunch
in the marital home, when defendant became very aggressive. He
"came charging" at her and pushed her bowl of food off the table
and onto the floor. She produced a photograph of the bowl and
food on the floor.
Throughout the years, different family members served as
informal mediators, attempting to assist the parties with their
marital difficulties. During the time leading up to the
precipitating event, defendant's cousin fulfilled this role. With
his assistance, the parties agreed that when plaintiff would move
out of the home, Ken would stay in the marital home with defendant.
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Plaintiff would pick Ken up at daycare each day and spend time
with him, after which she would return her son to the marital home
to sleep. On weekends, if plaintiff wanted to spend time with
Ken, she would give defendant advance notice and would be able to
do so.
During the first week that plaintiff was out of the home, the
parties abided by these arrangements. As the weekend approached,
plaintiff called defendant on Friday and said she wanted to see
Ken over the weekend. Defendant refused. She called defendant
again on Saturday, and he again refused demanding that she provide
at least three days' notice.
On Sunday, plaintiff went to the marital home. Defendant and
Ken were there. Plaintiff said she wanted to take Ken with her
to stay with her. She said the present arrangement was not
acceptable. The parties argued and they called defendant's cousin.
Plaintiff testified that defendant's cousin "said he will convince
him for me to take my son with me to my new place and I can take
care of complete custody of my child." The understanding was that
this informal arrangement would continue until the parties
eventually went to court, as it was contemplated, seeking a divorce
or other relief arising out of the marital relationship. At that
future time, a legal order would be issued determining custody and
parenting rights.
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The parties ended the conversation, which they had conducted
on a speaker phone, with defendant's cousin. Plaintiff then
described what happened next:
After hanging up the phone again he came
charging at me saying like, no, no, you cannot
take [Ken] with you, I'm not even going to
listen to my cousin this time, you cannot take
him. And it -- he -- he slapped me and then
he pushed me on to the couch. I fell on couch.
He went sit on the (indiscernible) and off on
the couch -- my son went to him saying like
no, I want to go with mom and then he hit my
son with his leg on my son's neck and head,
he fell on the floor. That's when he was
crying. I console him and I -- I was
frightened because he was very aggressive, so
I call cops then. I called the cops.
Plaintiff described that she felt "[v]ery frightened." When asked
how Ken reacted, she said: "He was frightened too. He said he
never want to go back to his dad again."
A police officer arrived in response to plaintiff's 911 call.
The parties provided written statements to the police. Plaintiff's
statement was consistent with the testimony she gave at the
hearing. She did not complain of any injuries, and declined any
medical treatment for herself and Ken. The initial complaint was
filed and a temporary restraining order was issued.
In his testimony, defendant denied ever striking plaintiff.
He also denied excessive alcohol consumption or being verbally or
physically abusive to plaintiff, Ken, or plaintiff's mother. With
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respect to the precipitating event, defendant took the position
that the parties had struck an agreement, albeit informal and not
legally binding, and plaintiff should have been required to adhere
to it. He denied striking her or Ken during that episode. He
testified that he feared that plaintiff might take Ken and go to
India.
Defendant's cousin confirmed that at the time of the
precipitating event, he spoke to the parties on the phone and
urged that the informal arrangement be changed in accordance with
plaintiff's wishes. He testified:
So then we -- I kind of told her, if you want,
take him totally, I will make him agree to
your terms until you decide on the court who
can keep the kid based on the legal terms
because I don't -- I'm not a legal person, I
cannot decide.
So even on that day then, this is what I said,
then you can take -- take him and I also make
him say, if you want take the kid, I'm not
going to -- I don't have any problem, but we'll
decide in the court.
Because the critical facts in this case were disputed by the
conflicting testimony of plaintiff and defendant, the judge's
assessment of their credibility was critical to deciding the case.
In no uncertain terms, the judge found plaintiff's testimony
extremely credible, describing it as "very compelling."
Conversely, he found defendant to be very incredible, based upon
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his demeanor and inconsistencies in his testimony. The judge
commented that various aspects of defendant's testimony did not
make sense.
He believed plaintiff's version of the events, including the
history of prior acts of domestic violence and her description of
what happened on January 10, 2016. The judge also found that,
during her testimony, plaintiff's
demeanor clearly showed to me that she was
frightened. Her demeanor of the past events
clearly showed to me that she was frightened
of this man and lived in a very controlled
environment for -- for many years during the
course of their marriage.
With respect to the precipitating event, the judge said:
I believe he pushed her and slapped her and
pushed her to the couch, told her she wasn't
taking the child, told her that he did not
agree with his cousin, didn't care what his
cousin said and she had no other choice but
to call the police. And that's what she did.
The judge went on to find that because there was no evidence
of injuries to plaintiff or Ken, the elements of simple assault
were not met. See N.J.S.A. 2C:12-1a(1). However, he was satisfied
that the elements of harassment had been proven by a preponderance
of the evidence. The judge set forth the definition of harassment
under N.J.S.A. 2C:33-4b, namely, that a person commits the offense
if, with purpose to harass another, he subjects another to
striking, kicking, shoving or other offensive touching. Based
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upon his credibility determination, the judge made the factual
finding that the offensive touching did occur, and he found that
"defendant's purpose to harass may be inferred from the evidence
presented from common sense and experience." He made this
determination based upon his consideration of "the totality of the
circumstances."
Based upon these findings, the judge issued a final
restraining order. The order included a provision awarding
plaintiff temporary custody of Ken.
Our standard of review of the factual findings of a trial
court sitting without a jury is very limited. Such findings are
binding on appeal when supported by adequate, substantial,
credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co.,
65 N.J. 474, 484 (1974). Further, the findings and conclusions
of a trial judge are entitled to enhanced deference in family
court matters, given the special jurisdiction and expertise of
family court judges in such matters. Cesare v. Cesare, 154 N.J.
394, 413 (1998). We have reviewed the complete record of these
proceedings. Applying the principles stated above, we are
satisfied that the judge's factual findings are amply supported
by the record, and we have no occasion to interfere with them.
Likewise, we recognize that the trial court enjoys the
benefit, which we do not, of observing the parties' conduct and
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demeanor in the courtroom and in testifying. Through this process,
trial judges develop a feel of the case and are in the best
position to make credibility assessments. We will defer to those
assessments unless they are manifestly unsupported by the record.
Weiss v. I. Zapinsky, Inc., 65 N.J. Super. 351, 357 (App. Div.
1961). The judge's credibility assessments are supported by the
record, and we defer to them.
Accordingly, we reject defendant's argument that the trial
court's credibility determinations and factual findings are not
supported by the record. On a related subject, we also reject
defendant's argument that the judge's findings of fact and
conclusions of law were not based on a sufficient analysis of the
testimony and evidence. In an effort to persuade us on this point,
defendant's brief calls to our attention selected portions of
testimony that were favorable to him or that demonstrate apparent
conflicts with other evidence that was unfavorable to him.
Defendant then criticizes the trial judge for not addressing each
of those points in his statement of reasons. A trial judge is not
required to address every such piece of evidence in order to render
a sound decision. The judge set forth more than ample reasons,
rooted in the evidence, supporting his credibility determinations.
From those determinations, his factual findings flowed with
sufficient reference to the evidence presented.
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Defendant argues that a purpose to harass was not proven. We
do not agree. Rarely do individuals announce their purpose for
conduct in which they engage. The judge correctly predicated his
determination of defendant's purpose on all of the attendant
circumstances, including things that were said and done by the
parties. Plaintiff's version of the events, which the judge
believed, clearly provided the basis for the judge's inference
that, by engaging in the conduct he did, it was defendant's purpose
to harass plaintiff.
Finally, we address defendant's contention that because the
court failed to expressly state that a restraining order was
necessary for plaintiff's protection, with reference to the
factors set forth in N.J.S.A. 2C:25-29a, the final restraining
order must be set aside. Defendant relies primarily on our
decision in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).
He insists that Silver requires an express statement, with factual
references from the record, as to which factors listed in N.J.S.A.
2C:25-29a(1) to (6) make the issuance of a restraining order
necessary.
Indeed, it is well settled that a restraining order will not
issue solely because of the commission of a predicate offense
listed in the Act. Bittner v. Harleysville Ins. Co., 338 N.J.
Super. 447, 454 (App. Div. 2001). There is a second prong, which
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requires consideration of additional factors, including the
previous history of domestic violence between the parties,
including threats, harassment and physical abuse, the existence
of immediate danger to the victim, and the best interests of the
victim and any child. N.J.S.A. 2C:25-29a(1), (2) and (4). See
also Bittner, supra, 338 N.J. Super. at 454 (quoting N.B. v. T.
B., 297 N.J. Super. 35, 40 (App. Div. 1997)); Cesare, supra, 154
N.J. at 401.
In Silver, we restated this well-established principle.
Silver, supra, 387 N.J. Super. at 125-27. In that case, the trial
court found that a predicate offense had been established.
However, the trial court's findings were ambiguous as to whether,
and to what extent, he believed either party's testimony regarding
some prior episodes. The judge did not issue a restraining order.
We remanded for clarified findings regarding the second prong,
namely, whether a restraining order was necessary to protect the
victim, considering such factors as a history of prior acts of
domestic violence. Id. at 126-28.
We found such clarification necessary for this reasons:
Although it might be inferred from the
conclusion of dismissal reached by the trial
judge that he did not believe plaintiff was
in immediate danger and that a restraining
order was not necessary to prevent further
abuse, the judge appears to have based his
finding that "domestic violence" had not
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occurred on his determination that the record
did not support a finding that there had been
"a pattern of abuse and a pattern of
controlling behavior."
[Id. at 128.]
In our discussion about the second prong, we observed:
Although this second determination—whether a
domestic violence restraining order should be
issued—is most often perfunctory and self-
evident, the guiding standard is whether a
restraining order is necessary, upon an
evaluation of the factors set forth in
N.J.S.A. 2C:25-29a(1) to -29a(6), to protect
the victim from an immediate danger or to
prevent further abuse.
[Id. at 127.]
We also noted that "it is clear that a pattern of abusive and
controlling behavior is a classic characteristic of domestic
violence." Id. at 128, citing Cesare, supra, 154 N.J. at 397-98.
The case before us falls into the broad category in which
there is a clear and extensive pattern of abusive and controlling
behavior. The judge found: "I believe her testimony that this
wasn't the first time she was hit. I believe her testimony that
in the past, she was and I believe that he was very controlling
of her throughout the relationship." As we have previously stated,
the judge was convinced, referencing plaintiff's demeanor as she
testified, that she was frightened, that the past events happened
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and frightened her, and that she had lived in a very controlling
environment throughout the course of the marriage.
Although the judge did not expressly refer to the factors in
N.J.S.A. 2C:25-29a, he found that there was a previous history of
domestic violence, including threats, harassment and physical
abuse, that plaintiff was justifiably in fear for her safety, and
that defendant's conduct constituted a pattern of abusive and
controlling behavior that persisted for many years. In light of
those findings and the fact that the judge issued a restraining
order, we infer that the judge implicitly made the requisite
finding under the second prong that a restraining order was
necessary for plaintiff's protection. It would have been
preferable had the judge expressly made the finding, but any error
in this regard is harmless because this is one of those cases we
described in Silver in which an express finding would have been
"perfunctory and self-evident." Silver, supra, 387 N.J. Super.
at 127.
Affirmed.
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