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N.J.S.A. 2C:25-17 to -35 (DVA), in favor of his "common law" wife, Maryid Herrera, based on a finding of the predicate offense of assault. Defendant argues the Temporary Restraining Order (TRO) was improperly issued without supporting facts or exigent circumstances; the trial court's findings upon which the FRO was based were not supported by sufficient credible evidence; the elements of assault were not met as plaintiff failed to prove the occurrence of an injury tied to the facts of the case; defendant's due process rights were violated by the trial judge's failure to stop plaintiff's objections, which were intended to interfere with the fact-finding mission; and that it was plain error to allow private counsel to prosecute the action on behalf of plaintiff. We reject these arguments and affirm."> Original Wordprocessor Version

This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3466-05T23466-05T2 MARYID HERRERA, Plaintiff-Respondent, v. WALTER CARPIO, Defendant-Appellant. _______________________________

Submitted: December 12, 2006 - Decided January 5, 2007 Before Judges Coburn and Axelrad. On appeal from the Superior Court of New Jersey, Law Division, Essex County, FV071995-06. Hugo Villalobos, attorney for appellant. Maryid Herrera, respondent, pro se, has not filed a brief. PER CURIAM Defendant Walter Carpio appeals from a Final Restraining Order (FRO) entered against him under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (DVA), in favor of his "common law" wife, Maryid Herrera, based on a finding of the predicate offense of assault. Defendant argues the Temporary Restraining Order (TRO) was improperly issued without supporting facts or exigent circumstances; the trial court's findings upon which the FRO

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was based were not supported by sufficient credible evidence; the elements of assault were not met as plaintiff failed to prove the occurrence of an injury tied to the facts of the case; defendant's due process rights were violated by the trial judge's failure to stop plaintiff's objections, which were intended to interfere with the fact-finding mission; and that it was plain error to allow private counsel to prosecute the action on behalf of plaintiff. We reject these arguments and affirm. On January 2, 2006 a TRO was entered in municipal court based on a finding of assault in response to plaintiff's complaint that around noon the prior day, defendant grabbed her by the neck and pushed her, causing her to fear for her life. The complaint also noted a prior history of domestic violence. Prior to entering the FRO on February 6, 2006, Judge Margaret Hayden conducted a two day trial, in which both parties were presented by counsel and were assisted by a Spanish interpreter. Plaintiff testified that during an argument in the kitchen on New Years Day, defendant grabbed her by the neck and pushed her against the wall, after which she tried to defend herself and grabbed and ripped his shirt. According to plaintiff, she "panicked" and started to scream, and defendant did not release her until he saw her sixteen-year-old daughter Jahaira and the parties' five-year-old son witnessing the incident. Jahaira observed her mother against the wall with her step-father "in front of her grabbing her neck," and further observed her mother was "terrified," "in shock," "red," "nervous," and "pushing him while he was grabbing her by the neck." Plaintiff explained that two days after the incident, her "back was all black" from the incident and Jahaira corroborated that she observed bruises around her mother's shoulderblade. Both plaintiff and her daughter testified to defendant's prior acts of domestic violence. Plaintiff related that defendant was always pushing her, and a month before he had grabbed her by the neck, but she did not call the police "because [she] wanted to work out the problem with him." She was, however, "very much" afraid of him and now sought a restraining order. Jahaira recounted that defendant was "always pushing [plaintiff] around [and] once he almost pushed her down the stairs but she was lucky enough to grab onto the handrail," and that she was afraid he would do something physical to her or her mother. Defendant testified that plaintiff assaulted him first and kicked the screen door against him and the dog as he was trying to exit, then grabbed his t-shirt and pulled him inside. He denied that Jahaira came into the kitchen and observed the incident or that he choked plaintiff, and claimed he never raised his hand to plaintiff during their tenyear relationship. Defendant also called several witnesses who testified about problems in the parties' relationship during the past year and a recent occasion where plaintiff slapped defendant, none of whom were present on the date of the incident that served as the basis for the finding of domestic violence and the entry of the FRO.

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Defendant's challenges to the TRO are moot, as the FRO was based on independent testimony and findings by the Family Part judge. After carefully reviewing the transcript in light of the challenges raised by defendant, we are satisfied the trial was conducted appropriately and there were no violations of any of defendant's due process rights. Our scope of review of a trial court's factfinding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord due deference to the credibility findings and "feel of the case" by the trial judge who has heard and observed the witnesses. Fritsche v. Westinghouse Electric Corp., 55 N.J. 322, 330 (1970); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988); Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. l961). This is particularly so with Family Part judges who possess special expertise in these types of matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We discern no abuse of discretion nor misapplication of the law by the Family Part judge in this case. The trial judge made express credibility findings in favor of plaintiff and her daughter as to the details of the incident, finding defendant choked and pushed plaintiff with force, and as to the prior conduct by defendant of pushing, striking and grabbing plaintiff by the neck. In contrast, she found defendant's description of how plaintiff closed the door on his arm and on the dog to be illogical and his overall testimony to be incredible. The judge accepted the testimony of defendant's witnesses as to the parties' tempestuous relationship, but noted that none of them were present on the date of the incident. With deference to the trial judge's credibility assessments, we are satisfied the record supports a finding by a preponderance of the credible evidence of the elements of assault under N.J.S.A. 2C:11-1a, and based on the testimony credited by the court, resulted in bruises to plaintiff's back. Considering the provisions of the DVA and its broad legislative intent, as well as defendant's prior conduct towards plaintiff, we are also satisfied there was sufficient credible evidence to sustain the court's factual and legal conclusion that defendant committed an act of domestic violence against plaintiff that warranted the issuance of an FRO. See Rova Farms, supra, 65 N.J. at 484. Affirmed.

The February 6, 2006 FRO inadvertently states that domestic violence was sustained on "harassment" but it is clear from the record the predicate offense was assault under wvWare/wvWare version 1.0.3 --> This archive is a service of Rutgers School of Law - Camden.
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