M.B., Plaintiff-Appellant, v. G.B., Defendant-Respondent. (2010)

Plaintiff M.B. appeals from an order of the Family Part dated December 21, 2009, dismissing after trial her complaint under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.   We affirm.

On October 5, 2009, plaintiff filed a complaint charging that defendant G.B., her ex-husband, assaulted and harassed her.   The complaint alleged that on October 1, 2009, at 7:30 p.m., “[w]hile pla[intiff] was holding their child, def[endant] tried to grab her out of pla[intiff]'s arms.   Def[endant] punched pla[intiff] and broke her rib.   Def[endant] grabbed mother's ¹ arm and pushed her away.”   Based on these allegations, the court granted plaintiff a temporary restraining order.

The case came to trial for a final restraining order before Family Part Judge Anthony Picheca.   Both parties were represented by attorneys.   Eight witnesses in addition to plaintiff and defendant testified over two trial days, including three medical witnesses who testified about the injury to plaintiff's side and rib.   The evidence at trial established the following.

The parties were married in 1997 and divorced in 2004.   They had two daughters, ages ten and nine at the time of trial.   After their divorce, plaintiff was designated by agreement the parent of primary residence for the girls, and defendant had weekend parenting time.

In the summer of 2009, the parties became embroiled in post-judgment litigation over custody, parenting time, and support.   In July, plaintiff filed a motion seeking an increase in child support and enforcement of the parties' parenting time agreement.   On September 8, 2009, defendant filed a domestic violence complaint against plaintiff alleging harassment by her, and he was granted a temporary restraining order, which also granted him temporary custody of the two girls.   On September 14, defendant filed a post-judgment application under the matrimonial docket number alleging that the girls had been physically abused by plaintiff.   The court issued an order to show cause to plaintiff with temporary restraints in favor of defendant.   The order permitted plaintiff only limited supervised visitation with the girls.

On September 24, 2009, the parties entered into a consent order in the matrimonial case by which they agreed not to have contact and communication between themselves except as necessary on matters concerning the welfare of the children.   As part of their agreement, defendant voluntarily dismissed his domestic violence complaint and the September 8, 2009 temporary restraining order against plaintiff.   Subsequently, after a hearing, the September 14, 2009 order to show cause was also dissolved by order dated October 9, 2009.   Primary residential custody of the girls was returned to plaintiff.   Also, by letter dated October 2, 2009, the New Jersey Division of Youth and Family Services (DYFS) notified plaintiff that it had investigated a referral of abuse and neglect of the children made against her and had determined the accusations to be unfounded.

While the order to show cause was pending and in effect, supervised visitation with the girls was arranged for plaintiff for one hour during the evening of October 1, 2009, at the home of a neighbor, Ms. R. Defendant dropped off the girls and left at 7:00 p.m. Before the hour passed, Ms. R. called defendant and instructed him to return immediately for the girls.   Early termination of the supervised visitation was prompted by the older girl becoming upset and crying.   The testimony at trial did not delve into the particular reasons for the girl's crying.

Ms. R. asked plaintiff to leave before defendant arrived to pick up the girls.   Plaintiff began to do so but then returned to Ms. R.'s home to say good-bye to the older daughter, not wanting to leave her on a bad note.   In the meantime, defendant returned and waited inside Ms. R.'s home by the front door, as Ms. R. instructed him to do.   Plaintiff walked by him to go outside and made a disparaging comment that he had “brain-washed” the girls.   Defendant did not react to plaintiff's comment, except that plaintiff testified he glared at her.   According to defendant's testimony, the older girl heard her mother's comment and disputed it, saying “he didn't brain-wash us.”

Outside the home, plaintiff picked up the younger girl and was holding and hugging her.   At that time, plaintiff's mother drove up, stepped out of her car, and approached plaintiff to greet her grandchild.   Defendant saw this from inside the house and became angry because he erroneously believed that the September 24, 2009 consent order prohibited plaintiff's mother from having unsupervised contact with the child.

Defendant rushed outside and attempted to take the child out of plaintiff's arms.   He yelled to plaintiff's mother to “get out of here” and grabbed and turned her wrist to push her away.   At the time, plaintiff's mother believed defendant had purposely scratched her, and she made that accusation loudly.   At the time of trial, plaintiff's mother testified she had since concluded that defendant did not intentionally scratch her;  the scratch was caused by her watch band.

Defendant and plaintiff fought a brief “tug-of-war” over the child.   Plaintiff initially held onto the child and did not want to let go.   She testified at trial that she felt defendant punch her, to her shock and surprise because he had not done anything similar in the past and she believed he would not hit a woman.   She admitted that she did not actually see a punch.   Upon feeling pain in her side, plaintiff let go of the child, and she saw defendant head back inside the house carrying their daughter.   Plaintiff told her mother to get back to her house, and she immediately got into her car and drove to State Police headquarters to report the incident.   From the time that defendant rushed at plaintiff until she drove away, the entire incident lasted no more than ten or twelve seconds.

At trial, defendant “absolutely” denied that he punched or otherwise assaulted plaintiff.   He testified that he became angry when he saw plaintiff's mother because the supervised visitation was arranged only for plaintiff, and he believed plaintiff's family members were not permitted to have contact with the children except by arrangement.   He said his only purpose was to take the child, and he had no intent to harm plaintiff and did not do so.   Defendant testified that he called 911 immediately after returning inside the house with the child.

According to plaintiff's mother at trial, she heard plaintiff say “he hit me” after plaintiff let go of the child.   However, plaintiff's mother did not see a punch.   Ms. R. testified that she was outside during the struggle but did not see defendant punch plaintiff.   She saw defendant grab plaintiff's mother by the wrist, and she saw plaintiff and defendant fighting over the child, but she did not witness an assault.

The State Police soon arrived and spoke to defendant, Ms. R., and the girls, plaintiff and her mother having left the scene.   The girls had not seen a punch.²  At State Police headquarters, plaintiff reported that she had been assaulted and showed a Trooper the area of her side where she felt pain.   The Trooper did not see any visible sign of trauma.   The State Police advised plaintiff that she could seek a domestic violence restraining order, but she declined at that time.

The following day, plaintiff felt severe pain in her side while working at her job as a teacher.   She consulted with the school nurse, who advised her to be medically evaluated.   The nurse testified at trial that she saw swelling and a pink color on plaintiff's side consistent with injury caused by a punch.

That afternoon, October 2, 2009, plaintiff went to the emergency room of a hospital, and x-rays were taken.   The nurse practitioner who examined plaintiff testified that the area of the alleged punch was tender to her touch and she saw swelling but no bruising.   Over defense objection about the nurse practitioner's qualification as an expert to interpret x-rays, she was permitted to testify that she detected a fractured rib on the films.

Later, the radiologist who examined the x-rays was also called as a witness.   He testified that the x-rays showed “a possible non-displaced fracture” of the ninth rib on the right side.   He said he was eighty percent certain of that finding, explaining that a non-displaced fracture is more difficult to detect than a displaced fracture because there is no separation of the bone visible on an x-ray.   Plaintiff's attorney, anticipating defense arguments that plaintiff had caused the injury to herself, asked the radiologist on direct examination whether self-inflicted blunt force trauma, such as by purposely striking one's side against a hard object, could have caused the fracture.   The radiologist testified that such blunt force trauma would typically cause injury to more than one rib because of the relatively small space between ribs.   On cross-examination, the radiologist testified that the injury could have occurred at any time within the fourteen days before the x-rays were taken, and that, in his experience, injuries to ribs caused by punching are also typically not confined to only one rib.

The trial included a great deal of additional testimony by plaintiff and the police witnesses about plaintiff's efforts beginning on October 2, 2009, to obtain a temporary restraining order.   Plaintiff alleged that the State Police were biased in favor of defendant because of his employment in law enforcement.   Defense cross-examination of plaintiff included testimony about her prior psychiatric treatment and revelation of a text message she had sent to defendant during the summer of 2009 stating that “the gloves are off,” that she was “three or four times smarter” than him, and that she would “no longer do anything to make [his] life easier.”   These parts of the record may have been relevant to credibility determinations made by the trial judge but do not otherwise affect the pertinent facts.

After reviewing all the evidence, Judge Picheca issued a lengthy oral decision on December 21, 2009.   He recited the assault and harassment statutes and the elements of those offenses.   He summarized relevant domestic violence case law, and he covered in detail the testimony of the several witnesses.   Applying the statutes and the case law to the testimony he found credible, the judge concluded that plaintiff had not proven by a preponderance of the evidence that defendant had punched her.   Although there was no serious dispute that plaintiff had suffered an injury to her rib, the evidence did not establish that defendant had caused the injury, and in particular, it did not establish that he had caused the injury purposely, knowingly, or recklessly, or with a purpose to harass plaintiff, as the assault and harassment statutes respectively required.   Because of deficiency in plaintiff's proofs and other reasons stated in his decision, Judge Picheca denied plaintiff's request for a final restraining order and dismissed her complaint.

On appeal, plaintiff contends that the trial judge erred in reaching his conclusions because, as an injured victim of domestic violence, she should have been granted all reasonable inferences that could be drawn from the evidence, and those inferences lead to only one conclusion - that defendant punched her and broke her rib.   She contends that she is in need of a restraining order for protection against defendant's violence.

In a domestic violence case, the standard of review on appeal is very deferential to the trial court's findings of fact and the conclusions of law based on those findings.   In Cesare v. Cesare, 154 N.J. 394, 413, 416 (1998), the Supreme Court placed trust in the expertise of Family Part judges to assess evidence of domestic violence and the need for a restraining order.   Regarding the function of the appellate court, the Court held:

[A]n appellate court should not disturb the “factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly 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. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).]

Here, Judge Picheca's findings and conclusions, reached after careful consideration of all the evidence, are consistent with the evidentiary record and do not offend the interests of justice.

In Silver v. Silver, 387 N.J.Super. 112, 125 (App.Div.2006), we held that a judge considering a complaint for a domestic violence restraining order has a “two-fold” task:  first, the judge “must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred[,]” see Cesare, supra, 154 N.J. at 400;  and second, “whether the court should enter a restraining order that provides protection for the victim[,]” Silver, supra, 387 N.J.Super. at 126.

The predicate offenses set forth in N.J.S.A. 2C:25-19a include assault and harassment.   Commission of a listed offense by itself does not automatically warrant issuance of a restraining order.  Corrente v. Corrente, 281 N.J.Super. 243, 248 (App.Div.1995);  Peranio v. Peranio, 280 N.J.Super. 47, 54 (App.Div.1995).   Whether a restraining order should be issued depends on the seriousness of the predicate offense, see Cesare, supra, 154 N.J. at 402, on “the previous history of violence between the plaintiff and defendant including threats, harassment and physical abuse,” and on “whether immediate danger to the person or property is present.”  Corrente, supra, 281 N.J.Super. at 248;  Peranio, supra, 280 N.J.Super. at 54;  see N.J.S.A. 2C:25-29a.

As the complainant, plaintiff had the burden of proving by a preponderance of the evidence her allegations of domestic violence.   See Crespo v. Crespo, 408 N.J.Super. 25, 36-40 (App.Div.2009), aff'd, 201 N.J. 207 (2010).   In this case, plaintiff had the burden of proving that defendant either assaulted or harassed her.   Nothing in the Prevention of Domestic Violence Act, or any case applying the Act, supports plaintiff's argument that the trial court must grant all reasonable inferences from the evidence to plaintiff because she was allegedly the victim of domestic violence and had suffered an injury.   What caused the injury was hotly disputed in this case.   As in other civil matters, the trial judge as the factfinder is granted deference in making appropriate inferences as he deems reasonable and as supported by the evidence.   See Cesare, supra, 154 N.J. at 413-14.

The assault statute under New Jersey's Code of Criminal Justice states in relevant part:

a.  Simple assault.   A person is guilty of assault if he:

(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another;  or

(2) Negligently causes bodily injury to another with a deadly weapon;  or

(3) Attempts by physical menace to put another in fear of imminent serious bodily injury

[N.J.S.A. 2C:12-1a.]

Since there was no deadly weapon or physical menace involved, only subpart (1) of the statute is applicable.

In his decision, the trial judge stated he could not conclude from the evidence that defendant purposely or knowingly injured plaintiff.   Because no one saw a punch, there was no prior history of similar conduct by defendant, and defendant adamantly denied that he had punched plaintiff, the court could reasonably conclude there was insufficient evidence of a purposeful or knowing assault of plaintiff.

Judge Picheca said he could not rule out the possibility that plaintiff had been injured accidentally or negligently during the struggle over the child.   Plaintiff argues the evidence required a finding of at least reckless conduct by defendant causing her fractured rib.

The Code of Criminal Justice explains the meaning of “recklessly”:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.   The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

[N.J.S.A. 2C:2-2b(3).]

The judge understood that reckless conduct could satisfy the elements of assault but found insufficient evidence of recklessness.   Although the “tug-of-war” over the child was unacceptable conduct, the evidence did not establish that defendant consciously disregarded a substantial risk of injury to plaintiff.   There was no legal error in the judge's conclusion that plaintiff did not prove defendant recklessly caused her bodily injury.

Making reference to the trial court's finding that defendant's anger was directed at plaintiff's mother, plaintiff argues error in the trial court's failure to consider the concept of transferred intent in causing injury to plaintiff.   See, e.g., State in the Interest of S.B., 333 N.J.Super. 236, 243 (App.Div.2000) (“an actor [is] criminally responsible for the result of his conduct, even though the person injured is not his intended victim”).   This argument fails because there was no evidence that defendant had any purpose or intent to punch plaintiff's mother and instead struck plaintiff.

We defer to the trial judge's findings and conclusion that the preponderance of the credible evidence did not prove defendant had thrown a punch or recklessly caused injury to plaintiff in wresting the child away from her.

With respect to the charge of harassment, N.J.S.A. 2C:33-4 states in relevant part:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a.  Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or 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.

Because the allegations did not involve a communication or a course of conduct or repeatedly committed acts, subsections a and c of the statute are not applicable to the facts of this case.   The allegations could potentially support subsection b, but plaintiff was required to prove that offensive touching occurred with a purpose to harass her.   For the same reasons that Judge Picheca found insufficient evidence of defendant purposely or knowingly punching plaintiff, he could conclude the evidence did not support a finding that defendant had a purpose to harass plaintiff when he made physical contact with her to take away their daughter from her arms.

Finally, we note the judge's finding, supported by the record, that the evidence did not demonstrate a history of domestic violence.   The prior incidents alleged by plaintiff were not domestic violence but “ordinary domestic contretemps” as we described in Corrente, supra, 281 N.J.Super. at 248-50.

Having found no error in the judge's conclusion that plaintiff failed to prove a predicate act of domestic violence as defined in N.J.S.A. 2C:25-19a, we need not address the second part of the analysis set forth in Silver, supra, 387 N.J.Super. at 126, whether plaintiff needed a restraining order for protection against defendant.

Affirmed.

FOOTNOTES

FN1. “Mother” referred to plaintiff's mother..  FN1. “Mother” referred to plaintiff's mother.

FN2. At trial, counsel disputed adamantly whether police testimony about what the children said to them should be admitted.   The court and both parties sought to avoid the children's participation in the trial.   Eventually, to protect against the girls being called to testify, plaintiff stipulated that the police testimony about their statements would be admitted.   In his decision, Judge Picheca indicated he was not considering the girls' statements to the police in reaching his conclusions..  FN2. At trial, counsel disputed adamantly whether police testimony about what the children said to them should be admitted.   The court and both parties sought to avoid the children's participation in the trial.   Eventually, to protect against the girls being called to testify, plaintiff stipulated that the police testimony about their statements would be admitted.   In his decision, Judge Picheca indicated he was not considering the girls' statements to the police in reaching his conclusions.

PER CURIAM