SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-835-95T5
N.B.,
Plaintiff-Respondent,
v.
T.B,
Defendant-Appellant.
T.B., A-836-95T5
Plaintiff-Respondent,
v.
M.V.,
Defendant-Appellant.
_________________________________________________________________
Argued September 17, 1996 - Decided January 17, 1997
Before Judges Pressler, Stern and Humphreys.
On appeal from the Superior Court of New Jersey,
Chancery Division, Morris County.
Phyllis S. Klein argued the cause for appellant T.B.
(Skoloff & Wolfe, attorneys; Peter S. Crisafi and
Ms. Klein, on the brief).
Thomas D. Baldwin argued the cause for respondent N.B.
and appellant M.V. (Budd, Larner, Gross, Rosenbaum,
Greenberg & Sade, attorneys; Mr. Baldwin, on the
brief).
The opinion of the court was delivered by
HUMPHREYS, J.A.D.
Defendant T.B. (husband) appeals from a final domestic
violence order which excludes him from the marital residence. A
final domestic violence order was also entered against the
brother of plaintiff N.B. (wife), but the order did not exclude
him from the marital residence. The brother appeals this order.
We hereby consolidate both appeals and render one opinion as to
both.
After thorough consideration of the record, we vacate the
restraining order against the husband and affirm the restraining
order against the brother.
The parties were living together at the marital residence when the alleged domestic violence arose. A divorce action was pending. The husband slept in the attic. The wife slept in the master bedroom; her brother slept in the basement. The wife had placed a lock on her bedroom door. The parties had joint custody of their three children in accordance with a pendente lite order. The two sons shared a bedroom; the daughter had her own room. The master bedroom and the childrens' bedrooms were on the second floor.
According to the defendant's testimony, on the morning of September 15th, he was on the second floor getting his daughter and the older son ready for school. The door to the master bedroom was open. He saw his daughter lying on the bed watching television. His one year old son was on the bed and saw him. The son slid off the bed and started walking toward him with open
arms. At that point, his wife came from behind him, pushed him
out of the way, went into the master bedroom and slammed the door
in his face. He responded, "you can't do that." He opened the
master bedroom door and walked inside the room. He attempted to
pick up his son. His wife pushed him aside and refused to allow
him to pick up his son. At that point, his wife's brother came
out of the bathroom in the master bedroom and began shoving and
pushing him against the wall.
The brother testified that the husband pushed the wife into
furniture in the master bedroom; the brother then grabbed him and
they wrestled. The husband testified that he did not touch his
wife.
The wife testified that she came out of her daughter's room
and saw her husband in the doorway of the master bedroom. She
went by him and entered her bedroom. She tried to close the door
while he attempted to push the door open. He suddenly swung the
door open and pushed her out of the way. She stumbled backwards
into a bookcase. Her brother then grabbed her husband.
At the conclusion of the testimony, the wife's counsel
advised the judge that there was a joint custody order that
permits the husband to visit with the children two nights a week.
Counsel explained that because of the tension in the house, the
husband comes to the house only on those nights. Counsel
suggested that during those two nights, the wife go to her
sister's home which was only ten minutes away. The husband could
then visit with the children each and every week until the matter
can come before the matrimonial court and custody and visitation
be determined there.
The judge said that it was difficult to assess the
credibility of people involved in an altercation but that the
defendant should have understood that the plaintiff was entitled
to privacy in her bedroom and that "[f]or him to force himself
into the room, despite what his motives or reasoning might have
been . . . [was] an act of domestic violence on his part."
(emphasis added).
Domestic violence is a "pattern of abusive and controlling behavior injurious to its victims." Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995); see also State v. B.H., 290 N.J. Super. 588, 607 (App. Div. 1996) (Loftus, J., dissenting); Corrente v. Corrente, 281 N.J. Super. 243, 247 (App. Div. 1995).
To address this serious problem, the Legislature enacted the Prevention of Domestic Violence Act. N.J.S.A. 2C:25-17 to -33. The Legislature "did not create a new class of offenses or interdict acts which otherwise were not addressed by the criminal law, but ensured that spouses who were subjected to criminal conduct by their mates had full access to the protections of the legal system. Thus, instead of redefining prohibited conduct, the law simply incorporates [certain criminal statutes]." Corrente, supra, 281 N.J. Super. at 248.
The Legislature, however, did not intend that:
the commission of any one of these acts automatically would warrant the issuance of a domestic violence
order. The law mandates that acts claimed by a
plaintiff to be domestic violence must be evaluated in
light of the previous history of domestic violence
between the plaintiff and defendant including previous
threats, harassment and physical abuse and in light of
whether immediate danger to the person or property is
present. N.J.S.A. 2C:25-29a(1) and (2). This
requirement reflects the reality that domestic violence
is ordinarily more than an isolated aberrant act and
incorporates the legislative intent to provide a
vehicle to protect victims whose safety is threatened.
This is the backdrop on which [a] defendant's acts must
be evaluated.
[Ibid. (emphasis added).]
The "focus of the Legislature was regular serious abuse
between spouses." Corrente, supra, 281 N.J. Super. at 247. The
domestic violence law should "address matters of consequence, not
ordinary domestic contretemps." Id. at 250.
The final restraining order in this case contains the
court's finding that the defendant "has committed acts of
domestic violence" but the order does not recite specifically
what acts were found or what criminal statute was violated.
Plaintiff, in her domestic violence complaint, charged the
defendant with assault, harassment and stalking. Although it is
not clear from the judge's reasons, it appears that he found the
defendant guilty of harassment, contrary to N.J.S.A. 2C:33-4.
That statute provides in pertinent part:
Harassment. Except as provided in subsection d.,
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.
A communication under subsection a. may be deemed
to have been made either at the place where it
originated or at the place where it was received.
[Ibid. (emphasis added).]
The judge here did not find that the husband acted with a
purpose to harass his wife. On the contrary, the judge found
that the husband's actions constituted domestic violence "despite
what his motives or reasoning might have been." Further, the
judge did not find that the defendant engaged in a "course of
alarming conduct or of repeatedly committed acts with purpose to
alarm or seriously annoy such other person." The absence of
these findings vitiates the judge's ultimate conclusion that the
defendant committed an act of domestic violence. See State v.
J.T.,
294 N.J. Super. 540 (App. Div. 1996).
Defendant's conduct may have been inappropriate or improper.
However, there is some justification for his conduct. The
bedroom door was open, not locked. His children were in the
room. He was getting the children ready for school. He
apparently wished to hug his child. In view of these
considerations and the judge's failure to make requisite findings
under the statute, this matter fits more readily within the
category of "domestic contretemps" rather than a "matter of
consequence."
We are also mindful that complaints charging domestic
violence are often misused in order to get an "edge" in a
matrimonial dispute. As we stated in Murray v. Murray,
267 N.J.
Super. 406 (App. Div. 1993):
[w]e are concerned, too, with the serious policy
implications of permitting allegations of this nature
to be branded as domestic violence and used by either
spouse to secure rulings on critical issues such as
support, exclusion from marital residence and property
disposition, particularly when aware that a matrimonial
action is pending or about to begin.
[Id. at 410.]
The Domestic Violence Act is an important and beneficial
statute. It should not be distorted or trivialized by misuse.
We recognize that parties in the midst of a tumultuous
matrimonial dispute should ordinarily not reside under the same
roof. However, that is a matter for the matrimonial court to
resolve. The matrimonial court has equitable power to remove a
spouse from a marital home on a proper showing even if the home
is owned by both as tenants by the entirety. See Degenaars v.
Degenaars, 186 N.J. Super. 233, 235 (Ch. Div. 1982); Babushik v.
Babushik,
157 N.J. Super. 128, 129 (Ch. Div. 1978); S. v. A.,
118 N.J. Super. 69, 70 (Ch. Div. 1972); Roberts v. Roberts,
106 N.J.
Super. 108, 109-10 (Ch. Div. 1969). Disputes which do not rise
to the level of domestic violence can and should be addressed and
resolved by the Chancery Division, Family Part, of the Superior
Court without necessarily relying on the Domestic Violence Act.
Accordingly, we reverse and vacate the domestic violence order
against the husband.
As to the husband's domestic violence complaint against the wife's brother, the trial judge separated the brother's conduct into two phases. The judge said that at first the brother intervened to protect his sister, who is physically smaller than the husband. Next, the brother followed the husband downstairs, continued to push and shove him, and forced him out of his home while he was clad only in his underwear.
The trial judge concluded that the brother's intervention on behalf of his sister was reasonable and did not constitute domestic violence. However, once the husband was downstairs, the brother should not have continued his physical acts. His conduct from that point, the judge found, constituted domestic violence. The trial judge again did not expressly state which statutory provision was violated by the brother. However, the facts indicate that the brother committed a simple assault. See N.J.S.A. 2C:12-1(a)(1).
That statute provides in pertinent 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 . . . .
[Ibid.]
Bodily injury is defined as "physical pain, illness or any
impairment of physical condition." N.J.S.A. 2C:11-1(a). Not
much is required to show bodily injury. For example, the
stinging sensation caused by a slap is adequate to support an
assault. State v. Downey,
242 N.J. Super. 367, 371 (Law Div.
1988); see also New Jersey v. Bazin,
912 F. Supp. 106, 115
(D.N.J. 1995) ("Even the slightest physical contact, if done
intentionally, is considered a simple assault under New Jersey
law.").
Our standard of review is well-settled. A trial judge's
factual findings and legal conclusions will not be disturbed
unless they are "so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence as
to offend the interests of justice." Rova Farms Resort, Inc. v.
Investors Ins. Co.,
65 N.J. 474, 484 (1974).
Here, the competent, relevant and reasonably credible
evidence supports a conclusion that plaintiff's brother committed
a simple assault, i.e. that he attempted to cause or purposely,
knowingly or recklessly caused bodily injury to the husband. The
trial judge's finding that the brother had committed an act of
domestic violence is affirmed.
Reversed on the appeal of the husband (A-835-95T5).
Affirmed on the appeal of the brother (A-836-95T5).