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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3096-04T33096-04T3 ADRIENNE S. NOWAK, Plaintiff-Respondent, v. HARRY F. SILBERMAN, Defendant-Appellant. _______________________________________________

Argued November 10, 2005 - Decided Before Judges Stern and Fall. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-793-05. Rowland V. Lucid, Jr., argued the cause for appellant. No brief filed on behalf of respondent. PER CURIAM Defendant appeals from the entry, on January 6, 2005, of a final restraining order in a domestic violence case. He argues that the trial court "failed to determine that [he] acted 'for the purpose' of harassing the plaintiff or committing an assault" and "improperly found a prior history of abuse." Plaintiff testified as to the following events which occurred on December 19, 2004:

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THE PLAINTIFF: Okay. Well, he had been out during the day and came back approximately eight p.m. and he was -- I assume he was out drinking because he seemed somewhat intoxicated. He was kind of loud. But then he quieted down and sat in the chair and seemed all right. I asked him if he wanted anything to eat, and we had something to eat, and we were sitting, just talking and watching television, and next thing I know he starts screaming and yelling at me about why we didn't take something to the dump the day before. That was one of the things, and he just kept it up and kept it up, screaming at me and calling -- and then he started calling me names, four-eyed cunt, said I should get a decent haircut, I look like a barrel, I'm an F'ing bitch, and all this. And I told him to leave, and he said he couldn't leave because the roads were slippery, and I said, well, he's going to have to go, and he wouldn't go. I opened the front door and he closed it. I opened it then and he closed it again. He started coming towards me, and I picked up a TV tray that we had been using, and I held it in front of me like that, and he kept on screaming at me, you F'ing bitch. I'll kill you, and his teeth -- he was gritting his teeth and his eyes were glaring and his face was all red. And then he pushed towards me, the other end of the table. He pushed me back a little bit. .... THE PLAINTIFF: Yeah. He pushed on that. THE COURT: And what happened? THE PLAINTIFF: He pushed me back a little bit and he said he had to go to the bathroom. So I kept telling him if you're not going to leave, I'd have to call the police. And he said -- when he pushed me, he says he had to go to the bathroom. He walked down the hall and I saw -- I could see that he didn't go into the bathroom. He went down to the end of the hall to the bedroom, and I followed him down to the end of the hall, and I saw that he was disconnecting the cord from the telephone. So I went back down the hall, and he followed me, and I picked up the table again because he was screaming at me again, I'll kill you, you F'ing bitch, and he just kept saying it. And he pulled the tray away from me, and when he did that, my hand got pinched in the leg part, and when he went to put it down, I pulled out the dining room chair and slid it in front of him, and I went into the kitchen. I was right -- like the kitchen wall is here and the dining room is, you know, right next to it. I went into the kitchen, and I saw that he had already unplugged the cord and the receiver was missing from the receiver in the kitchen. So I just ran out the side door, and I went over to the neighbors and, you know, called for help, and they called the police. In response to the court's question concerning whether defendant had "ever physically assaulted [her] in the past," plaintiff stated "yes," and the following colloquy occurred: THE COURT: You can tell me up to two prior instances of domestic violence. THE PLAINTIFF: Well, last year, the similar thing where again he had been drinking and when he came in, it was -- maybe like one o[r] two in the morning, and at that time my

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mother still was living, and he couldn't -- I had to lock the door and put a chain on it. So he had to wake me up basically in order to get in the house because I couldn't trust her because she had tried to get out a few times. So that's why he didn't -- couldn't just come in, you know, with a key. So I let him in, and he was yelling and screaming about some incident that occurred when he was out, and then he started yelling and screaming and swearing at me and using basically the same language, and I asked him to leave and he wouldn't leave. So I called the police and they came and removed him. THE COURT: W[]ere [] there any other incidents of physical violence? THE PLAINTIFF: Yeah, he came after me in an argument. My mother was present at the time, but she is very hard of hearing, so I mean you'd really have to scream around her. But he grabbed my wrist and I had black and blue marks on the wrist. THE COURT: When did that happen? THE PLAINTIFF: The year before, 2002. THE COURT: 2002? THE PLAINTIFF: Yes. Defendant also testified at the hearing. He admitted drinking on December 19, 2004, before he arrived home and an argument erupted, and plaintiff ordered him out of the house. He also admitted they argued about when he would leave in light of the weather, and stated that when plaintiff picked up the table, he "wrestled it out of her hands." He asserts he never hit her, nor made any body contact, but just "wrestled" a chair and tray she picked up "out of her hands." Defendant also acknowledged calling plaintiff names because she was criticizing him for causing her mother's Alzheimer's disease and demise, and caused a problem with her daughter. Defendant further acknowledged pulling the phone to prevent plaintiff from calling the police, that he "could possibly have said that I was going to kill her," and thought "I said that previously to her" when the police were summoned after a similar "yelling and screaming" incident. Defendant also admitted the couple "had our share of cat fights . . . verbal cat fights" in the twenty-seven years they lived together. He admitted he threatened to kill her "once or twice," but never meant it. He acknowledged that he pointed at her with his index finger, but never hit or assaulted her. He was willing to acknowledge the relationship is over if that was her desire, because he "care[s] for her very much." On rebuttal plaintiff testified she didn't pick up the chair; she "merely slid it in front of [her]self" and him, but never lifted it or pointed it at him. She showed the judge the remaining discoloration of bruised fingers. Judge Thomas Dilts found an "escalating" "history of arguments," which "poses a danger" and "good cause to fear for her life, health and well being." He found plaintiff to be credible, that the three incidents she described
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occurred, and that there was a "a past history of domestic violence." On this appeal defendant argues: A. THE COURT BELOW FAILED TO DETERMINE THAT THE DEFENDANT ACTED "FOR THE PURPOSE" OF HARASSING THE PLAINTIFF OR COMMITING AN ASSAULT. B. THE COURT BELOW IMPROPERLY FOUND A PRIOR HISTORY OF ABUSE. We reject defendant's contentions and conclude that there is sufficient evidence on the record to support Judge Dilts' findings and, therefore, affirm the judgment substantially for the reasons embodied in his oral opinion of January 6, 2005. "[N]ot only may one sufficiently egregious action constitute domestic violence under the Act, even with no history of abuse between the parties, but a court may also determine that an ambiguous incident qualifies as prohibited conduct, based on a finding of violence in the parties' past." Cesare v. Cesare, 154 N.J. 394, 402 (1998); see also id. at 416 (scope of review). Affirmed.

(continued) (continued) 7 A-3096-04T3 RECORD IMPOUNDED January 6, 2006 0x01 graphic

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