RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3050-15T2

V.A.Z.,

Plaintiff-Respondent,

v.

J.M.W.,

Defendant-Appellant.

_______________________________

Submitted April 24, 2017 – Decided

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Gloucester 

County, Docket No. FV-08-0779-16.

Jef Henninger, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Appellant J.M.W. appeals from a February 11, 2016 final 

restraining order ("FRO") entered in favor of respondent V.A.Z. 

pursuant to the Prevention of Domestic Violence Act of 1991 

("PDVA"), N.J.S.A. 2C:25-17 to -35. We affirm. 

NOT FOR PUBLICATION WITHOUT THE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.

May 2, 2017
2 A-3050-15T2

We derive the following facts from the record. The parties 

had been living together for approximately ten months at the time 

of the incidents on January 26, 2016 that are the subject of this 

appeal. They also have a child, born in May 2015.

V.A.Z. testified that on January 26, 2016, she and J.M.W. had 

a verbal argument after he failed to feed the baby. V.A.Z. then 

went into a bedroom to watch television on an iPad. V.A.Z. stated 

that J.M.W. came into the room and grabbed the iPad away from her 

and accused her of texting another man. J.M.W. complained that 

V.A.Z. had deleted the internet history and pushed her against a 

wall. J.M.W. then went downstairs and took V.A.Z.'s car keys, 

license, and credit card to prevent her from leaving the home.

V.A.Z. saw J.M.W.'s cell phone on the bed, picked it up, and 

went downstairs. When J.M.W. saw V.A.Z. with the phone, he grabbed 

her by the hair and threw her against a wall to make her drop it. 

After letting go of the phone, V.A.Z. picked up J.M.W.'s 

PlayStation and told J.M.W. to give her a phone so she could call 

the police for help. When J.M.W. refused, V.A.Z. smashed the 

PlayStation with a hammer.

V.A.Z. testified that J.M.W. then grabbed her by both of her 

arms, threw her into a sliding glass door, and pushed her outside 

the house. She had no coat or shoes. V.A.Z. tried to find a 

neighbor or a passerby to help her, but soon returned to the house 
3 A-3050-15T2

and saw J.M.W. buckling the baby into a car seat. V.A.Z. asserted 

that she did not want J.M.W. taking the baby "in a rage state" 

and, therefore, she attempted to get inside by hitting the sliding 

glass door with a plastic snow shovel.

J.M.W. then let V.A.Z. into the house. She saw that J.M.W. 

had put the iPad on the kitchen table. V.A.Z. grabbed it and 

texted her father to call the police. She then threw the iPad so 

J.M.W. would chase it, unbuckled the baby from the car seat, and 

began taking the infant upstairs to a spare bedroom. V.A.Z. 

explained that the spare bedroom door was the only one with a lock 

because J.M.W. had previously broken every other door. As she 

went up the stairs, J.M.W. hit her in the back. V.A.Z. got to the 

spare bedroom, locked the door, and waited for the police. 

V.A.Z. testified that her arms and back were "extremely red" 

from J.M.W. hitting her. After the police arrived, they arrested 

J.M.W.

V.A.Z. cited several other acts of domestic violence that 

occurred during the parties' relationship. V.A.Z. testified that 

J.M.W. frequently accused her of having relationships with other 

men and that he had broken several of her telephones, a laptop 

computer, and an iPad. When he was upset with her, J.M.W. would 

take away her driver's license and car keys to prevent her from 

leaving the house without his permission. V.A.Z. also asserted 
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that in December 2015, J.M.W. held her down on a bed and punched 

her repeatedly all over her body, causing multiple bruises.

J.M.W. testified that the parties were arguing over 

"something stupid." He asserted that V.A.Z. became upset because 

he was talking to her while he was on the phone. She then grabbed 

one of his phones and went through his messages while walking 

downstairs. J.M.W. followed her and asked for the phone back. 

V.A.Z. then threw the phone on the floor, picked up a hammer, and 

broke his PlayStation with a hammer.

J.M.W. admitted that he took V.A.Z.'s credit card, but stated 

that he did so because she had to pay for the broken game console. 

J.M.W. alleged that V.A.Z. then "stormed outside" the house and 

he locked the door behind her. He put the parties' baby in a car 

seat because he wanted to take the child to his parents' home.

When V.A.Z. hit the sliding glass door with the shovel, J.M.W. 

let her back in the house. He testified that V.A.Z. then hit him 

in the back with the shovel. He also claimed that V.A.Z. struck 

his head repeatedly with "open and closed fists." J.M.W. alleged 

that he grabbed V.A.Z.'s arms to try to stop her from hitting him. 

He stated that he also pushed her backwards and "[s]he just kind 

of backed up into" the sliding glass door.

J.M.W admitted that he had previously broken at least two of 

V.A.Z.'s electronic devices because he suspected she was using 
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them to contact other men. He denied previously breaking the 

doors in the house, and asserted that "[a]ll the doors upstairs 

were out of level, out of line[,]" and, therefore, he took the

doors "off the[ir] hinges" so he could repair them at a future 

time. J.M.W. denied hitting or injuring V.A.Z.

In a thorough oral decision rendered on February 11, 2016, 

Judge Harold U. Johnson, Jr. found that V.A.Z.'s testimony 

concerning the incidents was credible, while J.M.W.'s claims were 

not. The judge explained that unlike J.M.W., V.A.Z. maintained 

eye contact with him, testified in a calm manner, and directly 

answered all questions posed to her. On the other hand, Judge 

Johnson observed that J.M.W. would not look at him when he gave 

his "most damaging answers" and, instead, looked down or away from 

him.

Judge Johnson concluded that J.M.W.'s actions constituted 

both assault under N.J.S.A. 2C:12-1, and harassment under N.J.S.A.

2C:33-4. The judge also found that V.A.Z. needed a FRO for her 

protection. The judge stated:

I do find in regard to this matter that 

there is a need for a [FRO] in this particular 

case, without a doubt in my mind.

Probably darn near clear and convincing 

evidence and approaching beyond a reasonable 

doubt, but clearly by a preponderance of the 

evidence in this particular case.
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When you look at these individuals and 

their body language, facial expressions, 

demeanor and what have you in the courtroom, 

I believe [V.A.Z.]. I do not believe [J.M.W.].

I believe [V.A.Z.] needs protections from 

[J.M.W.] and I hereby enter a [FRO] on her 

behalf.

This appeal followed.

On appeal, J.M.W. contends that V.A.Z. failed to prove by a 

preponderance of the evidence that he committed any acts of 

domestic violence on January 26, 2016. J.M.W. also alleges that 

the trial judge erred in finding that a FRO was necessary to 

protect V.A.Z. from an immediate danger or to prevent further 

abuse. We disagree with these contentions.

Our review of a trial judge's fact-finding function is 

limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A judge's 

fact-finding is "binding on appeal when supported by adequate, 

substantial, credible evidence." Id. at 411-12 (citing Rova Farms 

Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). 

Moreover, "[b]ecause of the family courts' special jurisdiction 

and expertise in family matters, appellate courts should accord 

deference to family court factfinding." Id. at 413. 

"Deference is especially appropriate 'when the evidence is 

largely testimonial and involves questions of credibility.'" Id.

at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 
7 A-3050-15T2

117 (1997)). This is so because the judge has the opportunity to 

see and hear the witnesses as they testify, thereby developing a 

"'feel of the case' that can never be realized by a review of the 

cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 

N.J. 382, 396 (2009) (quoting D.Y.F.S. v. E.P., 196 N.J. 88, 104 

(2008)). A judge's purely legal decisions, however, are subject 

to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 

(App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995)).

In adjudicating a domestic violence case, the trial judge has 

a "two-fold" task. Silver v. Silver, 387 N.J. Super. 112, 125 

(App. Div. 2006). The judge must first determine whether the 

plaintiff has proven, by a preponderance of the evidence, that the 

defendant committed one of the predicate acts referenced in 

N.J.S.A. 2C:25-19(a), which incorporates assault, N.J.S.A. 2C:12-

1, and harassment, N.J.S.A. 2C:33-4, as conduct constituting 

domestic violence. Id. at 125-26. The judge must construe any 

such acts in light of the parties' history to better "understand 

the totality of the circumstances of the relationship and to fully 

evaluate the reasonableness of the victim's continued fear of the 

perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. 

Div. 1998); N.J.S.A. 2C:25-29(a)(1).
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If a predicate offense is proven, the judge must then assess 

"whether a restraining order is necessary, upon an evaluation of 

the facts set forth in N.J.S.A. 2C:29(a)(1) to -29(a)(6), to 

protect the victim from an immediate danger or to prevent further 

abuse." J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting 

Silver, supra, 387 N.J. Super. at 126-27). Whether a restraining 

order should be issued depends on the seriousness of the predicate 

offense, on "the previous history of domestic violence between the 

plaintiff and defendant including previous threats, harassment[,] 

and physical abuse," and on "whether immediate danger to the person 

or property is present." Corrente v. Corrente, 281 N.J. Super.

243, 248 (App. Div. l995) (citing N.J.S.A. 2C:25-29(a)); see also

Cesare, supra, 154 N.J. at 402.

Applying these standards to the arguments raised by J.M.W., 

we discern no basis for disturbing Judge Johnson's decision to 

grant a FRO to V.A.Z. The judge specifically found that V.A.Z.'s 

account of the January 26, 2016 incidents was credible and there 

is substantial credible evidence in the record to support that 

finding. Therefore, we affirm substantially for the reasons set 

forth in Judge Johnson's comprehensive oral opinion. We add the 

following brief comments.

The predicate act of assault is committed when a person 

"[a]ttempts to cause or purposely, knowingly or recklessly causes 
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bodily injury to another[.]" N.J.S.A. 2C:12-1(a)(1). "Bodily 

injury" is "physical pain, illness or any impairment of physical 

condition[.]" N.J.S.A. 2C:11-1(a); see also State v. Stull, 403 

N.J. Super. 501, 505 (App. Div. 2008). 

After making credibility findings, Judge Johnson properly 

applied the statute in concluding that J.M.W. assaulted V.A.Z. 

several times on January 26, 2016. J.M.W. grabbed V.A.Z. by the 

hair and threw her against a wall; grabbed both her arms and threw 

her into a sliding glass door; pushed her out of the door; and 

then hit her in the back after she re-entered the house. V.A.Z.'s 

arms and back were "extremely red" as the result of these attacks. 

Therefore, the judge correctly found that J.M.W. committed acts

of domestic violence in violation of the PDVA.1

With regard to the second prong of Silver, Judge Johnson 

properly found that a FRO was necessary to protect V.A.Z., 

especially in view of J.M.W.'s past history of assaulting V.A.Z., 

breaking electronic devices, preventing her from leaving the 

house, and kicking in doors. Silver, supra, 387 N.J. Super. at 

128. We perceive no basis to depart from the judge's findings. 

 

1 In light of our ruling that the trial judge's issuance of a FRO 

to V.A.Z. was fully supported under the assault statute, N.J.S.A.

2C:12-1, we need not address the judge's alternative ruling that 

J.M.W.'s conduct also constituted harassment under N.J.S.A. 2C:33-

4.
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Therefore, we affirm the judge's order granting V.A.Z. a FRO 

against J.M.W.

Affirmed.