                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0025-17T1

J.B.,

        Plaintiff-Respondent,

v.

J.D.,

     Defendant-Appellant.
_________________________________

              Submitted August 7, 2018 – Decided August 10, 2018

              Before Judges Sabatino and Mawla.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Ocean County,
              Docket No. FV-15-1966-17.

              Eli L. Eytan, attorney for appellant.

              Respondent has not filed a brief.

PER CURIAM

        Defendant J.D. appeals from two July 17, 2017 orders, which

denied her a Final Restraining Order (FRO) against plaintiff J.B.

and granted J.B. an FRO against J.D., pursuant to the Prevention

of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.                         We

affirm.
     The parties are the parents of a child and live in the

residence   of    defendant's    grandmother,     along    with    defendant's

children from a different relationship.           On the evening of June

10, 2017, the parties had returned from a family outing.                      The

parties' testimony at the FRO hearing1 diverged regarding what

happened next.

     According to plaintiff, at approximately 8:00 p.m. defendant

left the residence to socialize with her friends.                      Plaintiff

consumed three shot glasses of scotch, retired to bed at 10:00

p.m., and later awoke at 2:00 a.m. to have a cigarette on the back

porch of the residence.         Plaintiff claimed he stepped off the

porch and urinated in the backyard.         When plaintiff attempted to

re-enter    the   residence,    he   and   defendant      began    a    physical

altercation.

     Plaintiff     testified    he   re-entered   the     residence     and   was

standing in the foyer.         He testified defendant was intoxicated,

attempted to push him out of the home, and screamed at him to

leave.   Plaintiff testified he agreed to leave, but requested his

debit card, which defendant refused to give him.                  Instead, she

continued to scream at him, pushed him to the ground two times,

ran into the kitchen, and returned with two knives and attacked


1
 Defendant was represented by counsel at the hearing and plaintiff
was self-represented.

                                      2                                  A-0025-17T1
plaintiff.   Plaintiff testified defendant stabbed him in the bicep

and cut his forearm, and that he grabbed her wrists in self-defense

to prevent further injury.

       According to defendant, plaintiff's abuse of alcohol was a

contentious issue throughout the parties' relationship. Defendant

testified that after the parties returned from the family outing,

they put the children to bed at approximately 8:00 p.m.   Defendant

testified she had plans to visit her friends at approximately

10:00 p.m., and needed to use the parties' vehicle.           Before

defendant left, plaintiff announced he was taking the vehicle to

the gas station to fuel it.    According to defendant, based on the

parties' history, defendant actually intended to consume beer he

had stored in the vehicle; therefore she hid the beer in the trunk.

       According to defendant, while she was out, plaintiff had sent

her a text message at 12:11 a.m. stating: "Trust that I am going

to get you back for stealing my beer.      That is all.   I do love

you.    Know that as well.    And you're going to stop bitching as

well[;] know that." Defendant testified she returned from visiting

her friends at approximately 12:45 a.m.   Plaintiff was asleep, and

defendant laid next to him playing a game on her telephone.

Defendant testified plaintiff awoke at approximately 1:45 a.m.,

and was intoxicated.     He stumbled out of bed and onto the back

porch and began urinating on the deck.

                                  3                          A-0025-17T1
       Defendant testified she got out of bed, pushed plaintiff, and

locked him out of the residence. According to defendant, plaintiff

"knocked [a] window in," leaned through the window, and "smacked

the [telephone] out of [defendant's] hand" while she attempted to

call the police.    Defendant testified plaintiff was attempting to

enter the residence through the window, and she was pushing him

out.    She testified

            [a]nd then we were scuffling a little bit.
            And he grabbed me by my right bicep[] and my
            throat. . . .   And he looked me dead in my
            eye. He said "[J.D.], don't make me hurt you."
            And as he was choking me, he had a knife on
            the window sill.    And, with my right arm,
            'cause it was free from the elbow down, I
            grabbed the knife and I stabbed him in the
            right bicep.

            And then he let go of my throat. But by this
            point . . . he was back in the foyer.      And
            then my dog heard the scuffle, and she charged
            into the back room and got between us, and her
            going after him, gave me the opportunity to
            . . . get out of the back room[.]

       Defendant testified plaintiff was the aggressor during the

argument, and that he grabbed her upper arm and tried to choke

her.    Defendant adduced photographs purporting to show bruising

to her arm and neck.    Defendant denied retrieving a knife from the

kitchen and intentionally stabbing defendant.     She testified she

used the knife in self-defense by taking it from the window sill

during the altercation. She claimed "[plaintiff] just kept knives,


                                  4                          A-0025-17T1
kitchen    knives,        pocket        knives,       utility     knives,     they      were

everywhere."2

      Defendant called the police, but she was arrested as a result

of   the   injuries        police       observed       on     plaintiff.       Following

defendant's arrest and removal from the parties' residence, the

parties exchanged a series of texts.                     Although we have not been

provided      with    a    copy    of     it,       defendant    confirmed     on     cross

examination that plaintiff sent her a text stating "I'll just stop

texting you; I will see you in court.                       Tonight looks great for

you." to which defendant responded "You too sweetness, with your

dramatic ass self."

      At 6:31 a.m., defendant began texting plaintiff with regard

to the parties' son.             Her first text stated: "I know things got

out of hand the other night, but can we be okay and civil enough

to   handle    [our       son]    and    life       without     the   court   involved?"

Plaintiff did not respond to this message. At 8:00 p.m., defendant

sent a final message "Please don't make me call the police.                                If

you keep ignoring me while you have my son the police will be

knocking on the front door and I will file a motion for custody."




2
  Defendant also adduced testimony from her grandmother for
purposes of corroborating her claim that plaintiff kept knives
"everywhere."

                                                5                                   A-0025-17T1
     The trial judge rendered an oral decision and subsequently

filed an amplification pursuant to Rule 2:5-1 to clarify her

findings regarding credibility.          The judge found plaintiff had

proved assault pursuant to N.J.S.A. 2C:12-1(a)(1), and concluded

defendant had neither proved assault nor harassment pursuant to

N.J.S.A. 2C:33-4(a) or (b), as defendant had argued.

     The trial judge found plaintiff to be more credible than

defendant.     Because    of   the   diametrically   opposite   testimony

regarding the incident and the lack of a history of domestic

violence to aid the judge to determine who the aggressor was, the

judge made detailed credibility findings in order to adjudicate

the dispute.   The judge stated:

          With respect to . . . plaintiff, I did find
          his    testimony    to    be    direct    and
          straightforward. There were some small issues
          that required clarification.     [Defendant's
          counsel] points out [Exhibit] D-1, that even
          though [plaintiff] said that he was asleep
          throughout the night, that D-1 indicates that
          he was, in fact, awake an[d] able to send a
          text.3

          And I do find that that was . . . what the
          [c]ourt   would  characterize   as  a   small
          discrepancy. But, otherwise, [plaintiff] was
          direct and straightforward.    And generally
          speaking, he held up under cross examination.
          He remained steady and consistent.

                . . . .

3
  D-1 refers to text messages introduced into evidence on July 11,
2017.

                                     6                            A-0025-17T1
              [P]laintiff's testimony was very detailed
              . . . he made excellent eye contact, both on
              direct examination and . . . essentially
              throughout his entire testimony.

                      . . . .

              [T]he details of the plaintiff's testimony
              certainly were corroborative . . . . He was
              incredibly detailed as to where he and . . .
              defendant were standing when this incident
              took place.

      The     trial    judge      drew      a   different    conclusion    regarding

defendant's credibility.              The judge noted defendant's "eye contact

[was] very poor."            Importantly, "[t]he [c]ourt also found the

sequence that . . . defendant put forth to be at times confusing,

and certainly . . . did not make sense the same way that . . .

plaintiff's testimony clearly did."

      The trial judge found the photos that plaintiff adduced as

evidence of the stab wounds to his bicep and arm consistent with

plaintiff's description of the incident, i.e., "that it was . . .

defendant who was advancing on . . . plaintiff and not the other

way around."      The judge found implausible defendant's testimony

regarding the location of the knife she used to stab plaintiff.

The   judge    stated       in    that      regard:   "The   steak   knife   in   the

defendant's words was immediately nearby on the window sill.                      And

the fact that it was so close on the window sill after she alleges

being   choked    .     .   .    in   the    [c]ourt's   estimation,      def[ies]   a


                                                7                            A-0025-17T1
sequential logic."     The judge concluded the testimony of defendant

and her grandmother that steak knives were kept "everywhere" was

not believable, "especially with . . . kids . . . running around,

it defies logic that there would be . . . a steak knife on the

window sill . . . ."

     The   judge    found    defendant's   text   messages   to   plaintiff

following the incident further confirmed she was the aggressor.

The judge concluded:

           Importantly, in the [c]ourt's view, the
           defendant made, if not a full admission of
           sorts in her text, certainly an . . .
           acknowledgement of her own conduct in text
           messages where she said, "I know things got
           out of hand . . . the other night."

                   . . . .

           And, again, if that's not entirely an
           admission   of  sorts,   it's   certainly   an
           acknowledgment of her own behavior not being
           entirely self-defense as she wants the [c]ourt
           to consider it for.

           There also was another text message that . . .
           plaintiff pointed out, where . . . defendant
           replied to . . . plaintiff, calling him a
           "dramatic ass self."     And, again, in the
           [c]ourt's view, a reasonable person wouldn't
           call the aggressor a "dramatic ass self."
           Typically speaking, that would be words that
           you would use to somebody that may have been
           victimized, and then accusing that victim of
           being dramatic about the nature and extent of
           the victim's wounds.




                                     8                              A-0025-17T1
       The trial judge concluded defendant had assaulted plaintiff

by admitting to pushing him and due to the evidence that she had

stabbed him with a knife.            The judge concluded the evidence of

injury to defendant's neck and wrists supported his claim that he

was pushing defendant away in self-defense.

       As we noted, the judge concluded defendant had not proved

either harassment or assault by plaintiff.                  The judge's findings

plaintiff had physical contact with defendant for self-defense

purposes     negated      the   requisite     mens   rea    necessary     to     prove

harassment     under      N.J.S.A.   2C:33-4(b)      or    assault.      The     judge

characterized the texts plaintiff had sent defendant as "impolite

conversation" and "domestic contretemps."                   Moreover, the judge

found the texts sent by plaintiff after the incident were not

proof of harassment but "understandable, after plaintiff had been

stabbed."     Thus, the judge concluded the texts were not sent by

plaintiff for purposes of annoying or alarming defendant.

       The   trial   judge      additionally     found     plaintiff    needed      the

protection     of    an   FRO   because     he   felt     unsafe   in   defendant's

presence, and feared her.            The judge also found plaintiff to be

in immediate danger because of defendant's use of a knife against

him.

       The judge therefore granted plaintiff the FRO and dismissed

defendant's complaint.          This appeal followed.

                                          9                                    A-0025-17T1
     On appeal, defendant contends the trial judge's credibility

findings are not entitled to deference because the judge allegedly

overlooked photographic evidence of marks on defendant's neck and

wrists.     Defendant   argues   the    photographic     evidence    was   not

impeached and was consistent with her testimony that plaintiff

choked    her.   Defendant   further     asserts   the   judge's     findings

regarding plaintiff's credibility were erroneous because the judge

did not address "the effect that alcohol and intoxication would

have on [plaintiff's] recollection and perception."                 Defendant

notes plaintiff did not dispute he urinated on the deck or that

he sent defendant a text threatening to "get [her] back for

stealing [his] beer."

     In addition to these specific claims, defendant argues the

trial judge's findings reflect she was biased against defendant.

Defendant notes the trial judge was the same judge who presided

at a hearing to modify the initial Temporary Restraining Order

(TRO), at which the judge maintained custody of the parties' son

with plaintiff.     Defendant argues the judge's reliance on the

presumption of custody to the non-abusive parent was based on the

fact the judge failed to disclose she was privy to a report from

the Division of Child Protection and Permanency (DCPP).

     Defendant also asserts that "[w]hile not articulated at the

hearing, the evidence of damage to the window and door could have

                                   10                                 A-0025-17T1
supported    a    finding   of   domestic   violence   based   on   criminal

mischief."       We address defendant's arguments in turn.

    We begin by reciting our standard of review.               In Cesare v.

Cesare, 154 N.J. 394 (1998), the Supreme Court addressed the

standard of review we apply to domestic violence matters.                 The

Court stated:

            The scope of appellate review of a trial
            court's fact-finding function is limited. The
            general rule is that findings by the trial
            court are binding on appeal when supported by
            adequate, substantial, credible evidence.
            Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,
            65 N.J. 474, 484 (1974).         Deference is
            especially appropriate "when the evidence is
            largely testimonial and involves questions of
            credibility."    In re Return of Weapons to
            J.W.D., 149 N.J. 108, 117 (1997). Because a
            trial court "'hears the case, sees and
            observes the witnesses, [and] hears them
            testify,' it has a better perspective than a
            reviewing court in evaluating the veracity of
            witnesses." Pascale v. Pascale, 113 N.J. 20,
            33 (1988) (quoting Gallo v. Gallo, 66 N.J.
            Super. 1, 5 (App. Div. 1961)) (alterations in
            original).    Therefore, an 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." Rova Farms, 65 N.J. at 484. The
            appellate court should "exercise its original
            fact finding jurisdiction sparingly and in
            none but a clear case where there is no doubt
            about the matter." Ibid.

            Furthermore,  matrimonial  courts  possess
            special expertise in the field of domestic

                                     11                              A-0025-17T1
            relations.   See Brennan v. Orban, 145 N.J.
            282, 300-01 (1996).

                    . . . .

            Because   of   the  family  courts'   special
            jurisdiction and expertise in family matters,
            appellate courts should accord deference to
            family court factfinding. As noted previously
            by this Court, the Legislature "has reposed
            grave responsibilities on Family Part judges
            to ensure the safety and well-being of women
            and children in our society. . . .     We are
            confident that they can successfully balance
            the interests of society in deterring the
            evils of domestic violence and caring for
            families." Brennan, 145 N.J. at 304-05.

            [Cesare, 154 N.J. 411-12.]

     We    reject    defendant's   challenges    to   the   trial   judge's

credibility determinations because such findings are entitled to

a high degree of deference.        Moreover, as we recited above, when

faced with diametrically opposite explanations of the incident

between the parties, the trial judge gave detailed reasons why she

found     defendant's    testimony    not    credible   and   plaintiff's

recitation truthful.      Contrary to defendant's argument on appeal,

by comparison, the trial judge was not required to explore the

impact of plaintiff's alcohol use on his ability to recall the

facts, where the record demonstrated there was no issue with his

recollection during his testimony.          The record also demonstrates

defendant's counsel was able to probe plaintiff's recollection of

the incident and draw an admission from plaintiff regarding his

                                     12                             A-0025-17T1
use of alcohol on the night in question.                Notwithstanding, the

judge     found   the   greater   weight   of     the    evidence   supported

plaintiff's version of the incident.         We have no basis to second

guess the judge's findings, which have ample support in the record.

     We also disagree with defendant's contention the trial judge

overlooked evidence of the injuries suffered by defendant to her

neck and wrists. The judge acknowledged the photographic evidence4

of the injuries, but found it not dispositive of defendant's

assertion that plaintiff had choked her.            Indeed, the trial judge

provided    detailed    reasoning   why    "the     slight   neck   bruising"

suffered by defendant was actually evidence of plaintiff defending

himself against defendant, who wielded two knives during the

attack.     The judge ultimately found the photographic evidence of

defendant's injuries "inconclusive."            Defendant's arguments on

appeal represent a disagreement with the conclusions drawn by the

trial judge. However, given the deference we owe the trial judge's

factual findings, there is no basis for us to reach a different

conclusion    because    the   record   allegedly    supports   the   judge's

findings.

     We also reject defendant's argument the trial judge was pre-

disposed against her because the judge maintained custody of the


4
  We note defendant's counsel did not provide the photographs in
the appendices on appeal.

                                    13                                A-0025-17T1
parties' son with plaintiff pending the final outcome of the

matter.   As a general proposition, a judge hearing an application

for a TRO is empowered to grant ex parte relief, including an

award of temporary custody pending the FRO hearing.              N.J.S.A.

2C:25-28(g).   Defendant demonstrated no link between the trial

judge's exercise of authority to grant temporary relief under the

TRO, and the decision to grant plaintiff an FRO.

     Moreover, the record does not support defendant's claim the

trial judge was biased because she had reviewed a DCPP report

before the trial.       In fact, following the entry of the FRO in

favor of plaintiff, the judge addressed the other non-restraint-

related   dispositive    relief   sought   by   the   parties,    namely,

defendant's request for parenting time.         In doing so, the trial

judge entered a protective order before reviewing the DCPP report

with the parties on the record and addressing parenting time.

Significantly, the judge stated "I'm just reading [the DCPP report]

for the first time now . . . ."        Therefore, the record does not

evidence the trial judge was pre-disposed against defendant by

virtue of the DCPP report and this claim lacks merit.

     Finally, we reject defendant's assertion the trial judge

should have concluded plaintiff engaged in criminal mischief by

breaking down the window adjacent to the foyer during the incident.

The judge rejected defendant's theory of the sequence of events,

                                  14                              A-0025-17T1
including defendant's claim plaintiff had re-entered the residence

in this fashion, and we have not been persuaded otherwise.           More

importantly, criminal mischief was not pled in defendant's TRO,

and defendant did not argue grounds for entry of an FRO on such a

basis to allow the trial judge to afford plaintiff due process and

the ability to prepare a defense.      Our Supreme Court has stated:

           [D]ue process forbids the trial court "to
           convert a hearing on a complaint alleging one
           act of domestic violence into a hearing on
           other acts of domestic violence which are not
           even alleged in the complaint."     [S]ee L.D.
           v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999)
           (explaining that "it is clearly improper to
           base a finding of domestic violence upon acts
           or a course of conduct not even mentioned in
           the complaint.").

           [J.D. v. M.D.F., 207 N.J. 458, 478-79 (2011)
           (citation omitted).]

For these reasons, we reject this argument as grounds for reversal.

     In sum, the trial judge's findings of fact and conclusions

of law are supported by the substantial, adequate, and credible

evidence   in   the   record.   Applying   the   governing   deferential

standard of review, we must sustain those determinations.

     Affirmed.




                                  15                             A-0025-17T1
