C.M.S. VS. R.M. (FV-06-0072-20, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-0037-19T2

C.M.S.,

Plaintiff-Respondent,

v.

R.M.,

Defendant-Appellant.
_______________________

Submitted October 1, 2020 – Decided January 7, 2021

Before Judges Ostrer and Enright.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland County,
Docket No. FV-06-0072-20.

Jacobs & Barbone, PA, attorneys for appellant (Louis
M. Barbone, on the brief).

Rutgers Domestic Violence Clinic, Rutgers Law,
attorneys for respondent (Victoria Chase, Clinical
Associate Professor, of counsel; Abigail Cook,
admitted pursuant to Rule 1:21-3(b), on the brief).

PER CURIAM
 Defendant appeals from a Final Restraining Order (FRO) issued under the

New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17

to -35. The court granted the order after finding that defendant assaulted his

then-girlfriend and that she needed protection. We affirm.

I.

A.

Both parties testified that they argued on the day of the assault, but their

descriptions of the argument differed drastically. According to Carla ,1 her

boyfriend Roberto, a police officer, had been drinking and was intoxicated. He

wanted to go to a bar in Philadelphia, but could not remember the name. He

repeatedly demanded that she tell him the name; when she refused, he tried to

grab her phone from her hands, and accused her of hiding something from him.

Carla testified that she decided to leave, and that as she prepared to do so,

Roberto attacked her, putting her in a "choke hold" and "flinging [her] around"

in the bedroom doorway. Carla demonstrated or described the "choke hold" in

various ways: either Roberto's hand or hands were on her shoulder, or his arm

was around her neck. As she screamed for help, he tried to stick his fingers in

1
We use pseudonyms for the reader's convenience, and to protect the privacy
of the domestic-violence victim. See R. 1:38-3(d)(9) to (10).
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her mouth. He blocked one door and locked another after she unlocked it. She

said that during the altercation, Roberto punched her cellphone, making it

"completely unusable." She also testified that he broke the house phone while

she tried to use it to call 911. According to a police report, Carla did not say

that Roberto broke the house phone, but only that the phone was unplugged. But

Carla testified that she "believe[d]" she told the police that Roberto threw the

phone at the wall.

Roberto stopped Carla from leaving not only by blocking the doors, but

also by throwing her phone and keys near the knife block. She scrambled for

the phone and keys, but feared that he might kill her with a knife. So she struck

him several times with a frying pan before leaving the house.

After the fight, Carla drove straight to her sister's house, not to the police

station, though both were the same distance away. She said that when she left

the house she "had no phone or nothing that [she] could use." However, her

sister testified that Carla called her from the car using Bluetooth.

Encouraged by her sister, Carla went to the police department and reported

the incident. She told the interviewing officer that Roberto had been cho king

her. According to the police report, which Carla never signed, she claimed that

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Roberto placed her in a "headlock," but she did not claim that she was "choked

or lost consciousness."

Her sister took photos of her injuries after returning from the police station

early the next morning. They depicted scrapes on Carla's hands, bruising on her

arms and legs, and bruising near her shoulder and collarbone, but no bruising on

her neck.

Roberto recalled the incident very differently. He testified that when

Carla refused to answer his questions about the bar, he became "suspicious"; he

"always ha[d] issues of trusting her." Nonetheless, when she left the bedroom ,

he simply moved out of her way, waiting until she reached the front door before

asking if they could talk. Carla yelled at him, telling him to leave her alone and

let her go.

She had to come back to get her keys; Roberto followed her, then tried to

calm her down with a hug. His strategy backfired. Carla, yelling that she wanted

to go and that she was leaving, struck him several times with a frying pan.

Roberto told her to go. She left. When she was already in her car, Roberto

called 911 to report that she assaulted him. Roberto offered into evidence

photographs of his bruises.

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 B.

Carla testified that the assault followed a history of controlling behavior

and domestic violence. She said that Roberto tracked her physical movements

using an app; he called her constantly; and he did not even let her close the door

when she used the bathroom. When she tried to leave the relationship — which

she did more than once — he looked for her, claiming that not only did he miss

her, but that his children also missed her.

Carla recounted two specific incidents of violence. Unsurprisingly, her

recollection of the events differs from Roberto's.

The first incident occurred more than a year before the predicate offense.

According to Carla, she and Roberto quarreled while at a club. On the way

home, Roberto, who was drunk, punched Carla and twisted her wrist. He also

punched and damaged the car's dashboard. Carla's sister and brother-in-law

testified that they each later confronted Roberto about his laying hands on Carla;

Roberto apologized to the brother-in-law and promised both of them that it

would never happen again.

Roberto gave a different account. He asserted that Carla struck him

repeatedly, and he grabbed her wrist to protect himself. He admitted that he

later apologized to her family members, but only "because she had bruising."

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 The second incident occurred not long after the first. According to Carla,

she and Roberto got engaged. Around the same time, though, Roberto became

violent and yanked her shoulder. When she told him she was leaving and not

coming back, he broke her house key and her engagement ring.

But according to Roberto, Carla had repeatedly treated the ring with

disdain, either throwing it at him or leaving it in the house. On the evening in

question, she threw it. Frustrated, Roberto smashed the ring, but did not

confront her physically.

C.

In its oral decision granting Carla relief, the court found Carla's testimony

"entirely credible" and Roberto's testimony only partially credible. The court

thus resolved any possible discrepancies in Carla's favor.

Regarding the parties' history, the court found that Roberto had attempted

to control Carla by, for example, tracking her with an app. The court did not

explicitly find that the wrist-twisting incident occurred the way Carla described

it, but it concluded that Roberto must have done something wrong; otherwise,

he would not have apologized to her family.

The court found that Roberto committed a predicate act of assault. It

found that the photographs of Carla's injuries, including "a significant bruise

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around her neck," supported her version of what happened that night, rather than

Roberto's testimony that he merely tried to hug her. The court found that

Roberto's calling 911 may have been a "preemptive strike" to protect himself

from a possible restraining order.

The court also found that the parties had a history of domestic violence.

Their relationship was "relatively toxic"; Roberto had an alcohol problem that

damaged the relationship; and Carla tried to leave the relationship multiple

times, but Roberto manipulated her into returning. The court determined that

Carla would need protection in the future. Therefore, the court entered a final

restraining order.

In his appeal, Roberto argues that the court's findings were not based on

adequate, substantial, credible evidence. He principally argues that five aspects

of the record undermine the trial court's findings. He contends that the court

erred in believing Carla's testimony, because Carla delayed reporting the two

earlier instances of domestic violence; after the final incident, she fled to her

sister's home instead of to the police; her descriptions of the alleged chokehold

varied; she falsely claimed that he broke her cell phone; and she inaccurately

described their altercation concerning the landline phone.

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 II.

In deciding whether to grant a final restraining order, a trial court must

engage in a two-step inquiry. Silver v. Silver, 387 N.J. Super. 112, 125 (App.

Div. 2006). The court must first determine whether the plaintiff proved, "by a

preponderance of the credible evidence," that the defendant committed one of

the predicate acts listed in the PDVA. Ibid. Assault is one of the predicate acts

listed in the PDVA. N.J.S.A. 2C:25-19(a)(2). If the plaintiff and defendant

share a history of domestic violence, the court must consider evidence of the

predicate act in light of that history. Silver, 387 N.J. Super. at 125-26. If the

court finds that the defendant committed a predicate act, the court must decide

whether to issue a restraining order. Id. at 127. The court will issue a restraining

order if a restraining order is necessary to protect a victim from further abuse.

Ibid.

Roberto limits his argument to the trial court's fact-findings, under the

first Silver prong, that he committed a predicate act and that there was a history

of domestic violence. Findings by a trial court are generally binding on appeal,

provided they are "supported by adequate, substantial, credible evidence."

Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). An appellate court should defer

to the trial court's findings unless those findings appear "so manifestly

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unsupported by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova

Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). An

appellate court owes a trial court's findings deference especially "when the

evidence is largely testimonial and involves questions of credibility." Ibid.

(quoting In re Return of Weapons to J.W.D., 148 N.J. 108, 117 (1997)). In

addition, because of family courts' specialized expertise, an appellate court

should accord special deference to a family court's findings. See id. at 413.

Under this deferential standard, we affirm. Roberto's arguments all attack

the court's determinations of credibility — and a trial court (significantly, a

family court dealing with a family matter) is particularly suited to decide issues

of credibility. Here, the trial court's findings were not "so manifestly

unsupported by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice." In analyzing the court's

findings and the alleged inconsistencies, we note that a trial court need not

analyze in detail, on the record, all facts bearing on a witness's credibility. See

State v. Locurto, 157 N.J. 463, 475 (1999).

Here, the trial court's findings, although limited, provide sufficient reason

to affirm its judgment. The court relied heavily on the photographic evidence

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of Carla's injuries. As the court noted, her bruising did not come from a mere

hug. Given the sharp differences in the two parties' accounts, the photogr aphs

provided adequate, substantial, credible evidence supporting Carla's account and

a finding that Roberto committed assault.

The court's finding that Roberto committed domestic violence in the past

was also sufficiently grounded in credible evidence. Roberto had, after all,

apologized to Carla's brother-in-law for her injury. The court reasonably

rejected Roberto's explanation that he apologized simply because Carla was

bruised, and not because he was at fault. Roberto admitted that he smashed

Carla's ring, but excused his behavior by saying he was frustrated. The court

also reasonably found that Roberto engaged in other controlling, if not always

violent, behavior.

None of Roberto's claims of inconsistencies in Carla's testimony compel

us to reject the trial court's findings. Roberto argues that Carla delayed reporting

the first two instances of domestic violence to the police, and that she fled to her

sister's home instead of the police station. But Carla testified she did not trust

the police because Roberto, a police officer, had told her they would side with

him. In addition, her sister's home was no farther away than was the police

station.

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 Roberto also argues that Carla described the alleged "chokehold"

inconsistently. However, the trial court could reasonably attribute that

inconsistency to a failure of memory due to trying circumstances. In any event,

even if her descriptions varied, and even if he did not have her in a technical

"chokehold," photographic evidence showed bruising in the shoulder and neck

area — bruising consistent with a forceful grip, not a mere hug.

According to Roberto, Carla lied when she said that he had rendered her

cellphone "completely unusable," because her sister testified that Carla called

her from the car. But a phone may be unusable because of a cracked screen, yet

retain some functionality when connected to another device, such as an

automobile's touch screen. Indeed, in response to defense counsel's argument,

Carla's counsel highlighted that explanation in summation, noting Carla's sister's

testimony that Carla used Bluetooth to make her call. We may assume the trial

court was persuaded by that explanation.

Finally, Roberto argues that Carla presented conflicting descriptions of

the incidents regarding the house phone. But her descriptions did not necessarily

conflict. Roberto, who had previously broken Carla's house key and engagement

ring, could well have smashed the phone in anger, whether or not it was plugged

in. Furthermore, perhaps Carla did tell the police that Roberto threw the phone,

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but the police may have failed to include that information in the report — a

report that Carla never signed.

In sum, the trial court's factual findings are adequately supported by

substantial, credible evidence in the record. Under those circumstances, "we

may not second-guess its judgment." N.J. Div. of Youth & Fam. Servs. v. F.M.,

211 N.J. 420, 427 (2012).

Affirmed.

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