K.F. VS. J.C.C. (FV-07-2450-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3609-18T2

K.F.,

Plaintiff-Respondent,

v.

J.C.C.,1

Defendant-Appellant.
________________________

Argued January 23, 2020 – Decided November 6, 2020

Before Judges Fuentes and Enright.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FV-07-2450-19.

Bette R. Grayson argued the cause for appellant
(Grayson & Associates, LLC, attorneys; Bette R.
Grayson and Elena K. Weitz, on the briefs).

Montell Figgins, LLC, attorneys for respondent
(Kenneth E. Brown, on the brief).

1
Pursuant to Rule 1:38-3(d)(9), we use initials to identify the parties and the
family members who testified before the Family Part to protect and preserve
their privacy.
 The opinion of the court was delivered by

FUENTES, P.J.A.D.

Defendant J.C.C. and plaintiff K.F. lived together and were involved in a

romantic relationship that lasted over five years. They had a daughter, K.C.F.,

who was born in 2018. On January 31, 2019, plaintiff filed a verified complaint

against defendant in the Chancery Division, Family Part under the Prevention

of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Plaintiff alleged

defendant had been physically abusive "throughout the relationship." Plaintiff

alleged defendant committed the predicate acts of harassment, N.J.S.A. 2C:33-

4, simple assault, N.J.S.A. 2C:12-1(a), and terroristic threats, N.J.S.A. 2C:12-3.

The Family Part considered plaintiff's ex parte application, as authorized

by N.J.S.A. 2C:25-28(i) and Rule 5:7A(a), and granted her a temporary

restraining order (TRO) which, inter alia, prohibited defendant from having any

contacts with plaintiff or his daughter pending the outcome of an evidentiary

hearing for the issuance of a final restraining order (FRO).

A Family Part judge conducted the FRO evidentiary hearing on March 8,

2019. The parties were represented by private counsel. Plaintiff testified on her

own behalf and each party also called a family member as a witness in their case.

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Plaintiff presented the testimony of her father K.F., and defendant's sister A.C.

testified on her brother's behalf. Defendant testified in his own defense.

The judge found plaintiff's testimony credible for the most part, and held

plaintiff established, by a preponderance of the evidence, that defendant

committed the predicate acts of harassment, N.J.S.A. 2C:33-4, and simple

assault, N.J.S.A. 2C:12-1(a). The judge entered an FRO and permanently

enjoined defendant from having any contacts with plaintiff at her residence or

place of employment, awarded the parties joint legal custody of their two-year-

old daughter K.C.F., and awarded plaintiff residential custody of the child. The

judge also established a parenting time arrangement for defendant to enable him

to have physical contact with his daughter, and directed the parties to

communicate with defendant's sister via text "only in regards to the child."

In this appeal, defendant argues the Family Part judge: (1)

"mischaracterized" the parties' history to "arbitrarily and capriciously" grant the

FRO; (2) "incorrectly" inferred a sinister "meaning and intent" in text messages

defendant sent to plaintiff regarding an incident that occurred in December

2018; (3) "arbitrarily and capriciously" treated defendant's failure to respond to

a text message regarding this incident as "tantamount to an admission of guilt;"

(4) "arbitrarily and capriciously" found plaintiff's testimony credible and

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ignored defendant's and his sister's testimony; (5) did not apply the second prong

of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006); (6) improperly

permitted plaintiff to testify about matters not mentioned in the PDVA

complaint; and (7) did not rule on plaintiff's proffer and admitted evidence in

violation of defendant's due process rights. None of these arguments have merit.

I

Plaintiff was the first witness to testify. In response to her attorney's

questions, plaintiff explained that on December 2018 she, defendant, and his

sister A.C. were in the house watching sports on television. Defendant's sister

was seated on the couch with the baby, K.C.F., on her lap and defendant had his

feet on the baby's chair. When plaintiff asked defendant to remove his feet from

the baby's chair: "He said that he could do anything he wanted in that house,

because he paid the bills . . . I’m not working." Plaintiff testified that she

realized it was time to change the baby's diapers, and stood up to take the child

to her room. Plaintiff described what occurred at this point:

[H]e got out of the couch and stood in front of me. I
had the baby on my right arm, and he grabbed me by
the neck in a very aggressive way. I fell on the couch,
the baby was falling over to the other side, and he
wouldn’t stop squeezing my neck. I tried to defend
myself and I slapped him and I scratch at him over here,
but he wouldn’t stop choking me. And his sister got in

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 -- involved and she said leave her alone and she pull –
pushed . . . away.2

....

When she manage to get him out of -- up when he was
on top of me, I still had the baby on my lap -- on my
arm. After she got him . . . away from me, he left for
several hours. Then he came back calmer.

The December 2018 incident led plaintiff to describe another event in

which defendant again reacted with an unwarranted level of violence against

plaintiff. This time, the incident involved a "shirt." Plaintiff provided the

following description of what transpired:

PLAINTIFF: The two of us were in our bedroom, the
baby was asleep already. There was a dirty shirt, a long
sleeve one, and all of a sudden he rolled it up and threw
it on my chest with force. He made me cry, because I
nurse my baby, and that hurt me a lot.

PLAINTIFF'S COUNSEL. Okay. Do you remember
why it hurt you so much?

A. Yes, because that’s the way I feed my baby, and
since she was asleep I was full.

Plaintiff testified she decided to take her daughter and leave the residence

she shared with defendant. Plaintiff testified that when she asked defendant

2
The Family Part judge overruled defense counsel's objection to the statement
attributable to defendant's sister as an "excited utterance" exception to the
hearsay rule. N.J.R.E. 803(c)(2).
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about paying child support, he told her that if she attempted to "file a case for

child support, [she] was going to see the devil inside him." Plaintiff also said

that defendant "wanted to talk about us," but she was resolved to end the

relationship and leave. Plaintiff also testified about an incident at which

defendant disrupted her mother's birthday party when he appeared at her

mother's house intoxicated after consuming alcohol at another party. He tried

to force plaintiff to go home with him, but her relatives intervened on her behalf.

She believed that "the situation was escalating."

When her father attempted to call the police, she decided to go home with

defendant "to calm down the whole thing." Plaintiff testified that she made this

decision despite being "very afraid" because she did not know what defendant

"was going to do when we got home[.]" Her main concern was to avoid a family

fight on her mother's birthday. At this point at the FRO hearing, defendant's

counsel objected to this testimony because plaintiff did not particularly mention

this incident in her PDVA complaint. In response, the judge placed the

following ruling on the record:

. . . I know that the last testimony was given over . . .
defendant’s objection, which is noted. The [c]ourt is
admitting it as contained within the notice before she
was pregnant . . . defendant as both physically and
verbally abusive. I do note that if the defense wants

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 more time to meet that testimony, I will certainly permit
it.

Plaintiff next testified about an incident that occurred on September 2018,

when her parents were on vacation. Plaintiff decided to stay in her parents'

house over the weekend with her sister and her (plaintiff's) baby daughter. She

went to sleep early that night. She left her cellphone in the kitchen, and was

thus unaware of a number of text messages defendant had sent to her with

"question marks." Plaintiff testified that defendant

arrived at my house that night, my sister opened the
door for him, and he went to the room where I was
sleeping with the baby, and at that moment he came in
and he grabbed me by the neck again. And he pushed
my head against the headboard of the bed, and he said
if -- he asked me if that's what I wanted from him?

....

And I said no. He grabbed me by the neck, and he
banged my neck on the headboard, and he asked me if
that’s what I wanted from him? I told him no. Then he
said let’s go home. And I was there and my sister, and
I didn’t want [my] sister to get involved, so I told him
let’s go. I put the baby on the car seat, she was asleep,
and I left with him.

[(emphasis added)]

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 Plaintiff went home with defendant that night. She made clear that she

would have done anything "to make . . . to see him happy, so he wouldn’t get

angry at me."

Plaintiff also stated that at the start of their relationship, she did not want

to have children with defendant. After approximately a year and a half of trying

to conceive, plaintiff testified that defendant told her to see a physician " to

check" herself because if she was unable to have children, he did not want to be

with her. According to plaintiff, defendant did not discuss this sensitive topic

with her in calm and supportive fashion. He would "scream at me."

Defendant's way of interacting with plaintiff did not improve when she

became pregnant. Plaintiff testified that during her pregnancy her feet would

swell and her doctor told her not to stand for long periods of time. According

to plaintiff, defendant was utterly indifferent to her condition and would tell her

to do "the housework and cook for him." He also demanded that plaintiff cook

his eggs in particular way. Plaintiff descried an incident that occurred "when he

came home and he saw how I fried the eggs in oil, he threw the plate against the

door and he broke the plate and the door. And I went upstairs to the bedroom

and started crying."

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 On cross-examination, defense counsel asked plaintiff to read into the

record a number of text messages she sent to defendant after she stopped

cohabitating with him. In these texts, plaintiff expressed a measure of regret for

the way the relationship ended. For example, plaintiff wrote to defendant in one

text: "I still see that these [sic] was not necessary." When defense counsel asked

plaintiff to clarify when she meant to say, she responded: "That after everything

we have been through . . . during this five years breaking it was not necessary,

but we agreed on it." Plaintiff also wrote: "And even though it hurts me deeply,

I accept it. And if one day you change your mind I am here, I’ll always love

you."

Defense counsel asked plaintiff if what she wrote in the text reflected how

she felt at the time. Plaintiff responded that although she still loved defendant,

she was afraid of him. She explained: "I have a child. He assaulted me twice

in front of her. I don’t want my daughter growing up seeing how her father

abuses. . . her mother, and I think that . . . she will grow up thinking that that’s

right."

Plaintiff's father A.K. corroborated his daughter's testimony concerning

defendant's state of intoxication when he arrived at plaintiff's mother's birthday

party. Defendant claimed plaintiff had to be home early. According to A.K.,

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"[e]verybody got involved. I was very nervous." A.K. testified that plaintiff

left with defendant "so he would calm down." This happened so abruptly that

she "left her car, her telephone, everything in the house." A.K. also claimed that

defendant refused to sign the baby's birth certificate acknowledging his paternity

because plaintiff wanted the child to have both his and her last names.

A.K. claimed that he witnessed defendant disparaged plaintiff and called

her a "bitch." When he asked defendant "why do you say that, why do you say

that to her? And he goes because that’s what she is." In response to plaintiff's

counsel, A.K. testified that he saw defendant grabbed plaintiff by the hair while

she was in the hospital and scream at her whenever she left A.K.'s house early.

Defendant's sister A.C. testified in her brother's defense. 3 She testified

she was present during the 2018 incident in which defendant put his feet on top

of his infant daughter's rocking chair. A.C. provided the following account of

what occurred that day:

My brother put his feet on top of the baby’s rocking
chair, [plaintiff] got highly upset and walked up
towards me, which I was holding my niece at the time,
grabbed the baby to take her away. I don’t know for
what purpose or reason. I know that she was very upset
about the whole situation. And my brother then went

3
Because plaintiff had not technically rested her case at this juncture, the judge
permitted defendant to call this witness "a little bit out of the standard order" as
accommodation to the witness' child rearing responsibilities.
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 to reach for the baby to give me the baby back,
[plaintiff] scratched his face, he moved back, grabbed
his keys[,] and left.

In response to defense counsel's question, A.C. stated that she did not see

defendant push plaintiff down onto the sofa while she held the baby, nor grab

her by the neck. According to A.C., when her brother left, she and plaintiff "sat

there in awkward silent, [sic] and about ten minutes later my boyfriend came to

pick me up and I left." On cross-examination by plaintiff's counsel, A.C. denied

ever seeing defendant and plaintiff involved in any other physical altercation.

II

At the conclusion of plaintiff's case, defense counsel moved to dismiss

plaintiff's PDVA complaint as a matter of law, based on insufficient evidence to

satisfy the two-prong analytical paradigm in Silver, which requires the judge to

perform two tasks before granting final relief under the PDVA. Silver, 387 N.J.

Super. at 125. First, the judge must determine whether plaintiff proved, by a

preponderance of the credible evidence, that defendant committed one or more

of the predicate acts set forth in N.J.S.A. 2C:25-19(a). Ibid. "If the judge finds

plaintiff did not meet this burden of proof, the court must dismiss the

complaint." A.M.C. v. P.B., 447 N.J. Super. 402, 413 (App. Div. 2016).

However, if the court finds a defendant committed one or more of the predicate

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acts listed in N.J.S.A. 2C:25-19(a), the judge must then determine whether an

FRO is needed to protect the victim. Silver, 387 N.J. Super. at 126.

In determining whether to grant a motion to dismiss at the close of a

plaintiff's case, "a trial court generally should accept the truth of the plaintiff's

evidence and accord the plaintiff the benefit of all favorable inferences that the

evidence supports." Cameco, Inc. v. Gedicke, 157 N.J. 504, 515 (1999). Rule

4:37-2(b) further provides that in an action tried without a jury, "such motion

shall be denied if the evidence, together with the legitimate inferences

therefrom, could sustain a judgment in plaintiff's favor."

Here, the judge found that plaintiff testified, consistent with the

allegations she made in the PDVA complaint, that defendant threatened that she

"would see the devil in him if she filed for child support." Plaintiff also testified

that defendant threw a "balled shirt" at her chest at the time she was actively

breastfeeding the baby. Plaintiff also testified that she had not nursed the child

when defendant threw the balled shirt at her chest. This made her particularly

sensitive and more likely to suffer pain when the shirt impacted her chest.

Finally, the judge noted that plaintiff testified that the argument that began with

defendant allegedly placing his feet on the child’s seat quickly escalated to what

plaintiff described as an assault on her person that included choking. Based on

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this testimonial evidence, the judge denied defendant's motion to dismiss

plaintiff's PDVA complaint. We hold the Family Part correctly applied the

relevant standard of review to deny defendant's motion for a directed verdict .

III

Defendant testified in his own defense. He claimed he ended his romantic

relationship with plaintiff because

she went delusional after she had our baby. She
changed, she . . . used to go, silent on me, she used to
never speak to me. I used to try to talk to her you know
once a month see how she was doing, then she would
have nothing to say.

In response to his attorney's leading questions, defendant testified that he

"offered to go to a therapist with her" and "take her on a vacation to try to see if

it was postpartum depression." He testified that the three of them (plaintiff, the

baby, and he) went on vacation for two weeks. Defendant denied: (1) ever

discussing the topic of child support with plaintiff; (2) threatening plaintiff by

saying "she would see the devil in him" if she were to seek child s upport; and

(3) throwing his sweaty gym shirt at plaintiff's chest at the time she was actively

nursing their child. In fact, he denied ever being physically abusive to plaintiff

throughout their entire five-year relationship.

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 Defense counsel also asked questioned defendant about the December

2018 incident, in which plaintiff claimed defendant put his feet on their infant

daughter's rocking chair. He denied physically assaulting plaintiff that day, but

conceded that he had his feet on the child's "rocker." He testified that plaintiff

was upset, because I didn’t take my feet off of the
rocker, so she took my daughter away from my sister.
I went at that moment trying to grab my daughter, like
hey, can I have my daughter, give her back to my sister,
and she went like crazy and just grabbed me by my
neck, and scratched my face. And I looked at her,
turned around, grabbed my keys[,] and left.

Defendant identified a photograph of his face allegedly taken that same

day, which purportedly depicts a scratch on his face caused by plaintiff. He

thereafter left the residence he shared with plaintiff for "a couple of days" and

terminated their relationship at the end of January. According to defendant,

although they were no longer living together nor romantically involved, he

continued to stay in plaintiff's residence "during the weekends, Fridays,

Saturdays and Sundays, because it’s a three bedroom. So, Friday, Saturday and

Sunday I’ll stay there with my son, her, and my daughter."

Defendant also denied plaintiff's allegation that he intentionally threw a

"balled shirt" at her chest at the time she was nursing the baby. Plaintiff's

counsel addressed this claim on cross-examination by introducing as an exhibit

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a text message defendant sent to plaintiff, which counsel claims states that

"defendant apologizes for throwing the shirt at my client[.]" Defendant refuted

this characterization of the content of text message: "It just says sorry for the

shirt, which I gave her a sweaty shirt, and she felt disgusted because it was

sweaty."

The judge reserved decision after hearing the attorneys' closing argument.

He placed his factual findings and conclusions of law on the record five days

later. After reviewing at length the testimonial evidence, the judge found

plaintiff’s version of the events within the relationship more credible than

defendant's account. With respect to the incident with the shirt, the judge did

not believe defendant sent a text message to plaintiff "apologizing for handing

her a sweaty shirt." The judge also questioned the credibility of defendant's

sister's testimony: "I believe his sister is attempting to protect her brother but

her version of what occurred in the apartment is completely lacking in the type

of detail that . . . plaintiff’s [father's]4 testimony causes me to find also credible."

The judge found plaintiff

4
The judge actually said, "plaintiff's mother's testimony." We conclude this
was merely an inadvertent misstatement, since plaintiff's mother did not testify
at the FRO hearing.

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 experienced a pattern of abusive and controlling
behavior which injures the victim and as stated in the
Corrente v. Corrente,5 case is the type of behavior that
the prevention of domestic violence act was formulated
to respond to. The text that she sent on February 4th is
a text in my estimation having seen and heard her
testimony that the result of a cycle which does not
exclude the plaintiff having genuine feelings and it
appears to me quite a dependence emotionally on the
defendant.

With respect to the December 2018 incident in which defendant conceded

he placed his feet on the baby's rocker, the judge found, by a preponderance of

the evidence, that defendant committed the predicate offense of simple assault

as defined in N.J.S.A. 2C:12-1(a), when he put his hands around plaintiff 's neck,

and the petty disorderly person offense of harassment, in the form of an

offensive touching. N.J.S.A. 2C:33-4(b). In the judge's own words:

[G]iven the credible credibility findings that I have
made find that there is sufficient evidence to support
the issuance of a final restraining order based on assault
and based on harassment.

....

[T]he hands-on neck after the argument over the feet on
the rocker was an assault. It’s also, of course, an
offensive touching, harassment. I believe that while

5
In Corrente, we cited psychological studies that described domestic violence
as "a term of art which describes a pattern of abusive and controlling behavior
which injures its victim." 281 N.J. Super. 243, 246 (App. Div. 1995).
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 lesser in violence[,] the shirt was balled up and thrown
at her chest. That’s simple assault at most, also, an
offensive touching under the harassment statute.

Under N.J.S.A. 2C:12-3(a), a person commits the third degree offense of

terroristic threats if he or she: "threatens to commit any crime of violence with

the purpose to terrorize another[.]" Here, the judge found insufficient evidence

to conclude defendant committed the predicate offense of terroristic threats. "I

believe that the immediacy and the specificity that the terroristic threat sta tute

calls for is not met by the statement seeing the devil in me." The judge found

that these predicate acts combined with the history of domestic violence between

the parties was sufficient to warrant the issuance of an FRO.

"When the Legislature adopted the PDVA, it made the Judiciary

responsible for 'protect[ing] victims of violence that occurs in a family or

family-like setting by providing access to both emergent and long-term civil and

criminal remedies and sanctions, and by ordering those remedies and sanctions

that are available to assure the safety of the victims and the public.'" A.M.C. v.

P.B., 447 N.J. Super. at 418 (quoting N.J.S.A. 2C:25-18). Here, the judge

carefully reviewed the evidence presented by the parties at the FRO hearing,

made detailed factual findings, and applied the two-prong analytical paradigm

under Silver to conclude plaintiff was entitled to a permanent restraining order.

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387 N.J. Super. at 127. We discern no legal or factual basis to question the

outcome of this case.

Affirmed.

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