                             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                        NOT FOR PUBLICATION WITHOUT THE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-4097-15T4

C.S.,

        Plaintiff-Respondent,

v.

M.A.K.,

        Defendant-Appellant.

________________________________

              Submitted August 30, 2017 – Decided September 8, 2017

              Before Judges Rothstadt and Vernoia.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part,
              Monmouth County, Docket No. FV-13-1301-16.

              Law Offices of Jef Henninger, attorneys for
              appellant (Mr. Henninger, on the brief).

              Maria DelGaizo Noto, attorney for respondent.

PER CURIAM

        Defendant     M.A.K.     appeals     from    a   May   4,    2016    final

restraining order ("FRO") entered in favor of plaintiff C.S.

pursuant to the Prevention of Domestic Violence Act of 1991

("PDVA"), N.J.S.A. 2C:25-17 to -35.             We affirm.
       We derive the following facts from the record of the FRO

trial   at      which    the       parties   and     a     responding    police    officer

testified.        At the time of the final hearing, the parties had

been involved in a dating relationship for approximately six

years and lived together for the last two in defendant's home

with    plaintiff's          son    who   is       developmentally       disabled.        On

Christmas       in   2011,     defendant           gave    plaintiff     an    automobile.

After     the     parties'         relationship           soured,    defendant     allowed

plaintiff and her son to continue to live in his home, but he

demanded that the automobile be returned to him by April 1,

2016.

       When plaintiff did not return the vehicle as demanded, the

parties      began      to   argue     when        they    arrived    home     from   their

respective jobs at approximately 4:00 p.m.                              Prior to coming

home, defendant had been drinking at a local bar.                                 When he

arrived, he approached plaintiff and demanded the keys to the

car.    Plaintiff refused and the argument ensued.                            According to

plaintiff, during the course of the argument, defendant grabbed

her throat with two hands, applying pressure to the point that

she could not breathe and felt pain, before throwing her into

the furniture and her falling to the ground.                          Later that night,

plaintiff discovered that she suffered a large bruise to her leg

as result of the fall.                 Defendant denied he touched plaintiff

                                               2                                  A-4097-15T4
and stated that he merely "put [his] hands up" as plaintiff ran

by him, leaving the house while holding her neck and screaming.

     A neighbor called the police and two officers responded to

the scene.       One of them spoke to plaintiff and found her to be

in   hysterics,        stating     she     had    great     difficulty      speaking.

Eventually, she explained that defendant tried to strangle her

and threw her across the room.                  She also complained of pain in

her neck.    According to the officer, he never observed any marks

on plaintiff's neck or any other evidence of physical injury.

When he later spoke to defendant, the officer found him to be

calm and cooperative.

     At    the   FRO     hearing,      plaintiff     testified      to   defendant's

history of threats and physical violence.                   Defendant denied that

he was ever violent or that he ever committed an act of domestic

violence against plaintiff, but                  stated that she in fact was

violent towards him.

     In a comprehensive oral decision placed on the record on

May 4, 2016, Judge Angela White Dalton made detailed credibility

findings    as    to    the    alleged         assault    and   found    plaintiff's

testimony    credible,        while      defendant's      was   not.      The   judge

concluded    that      defendant      committed     an    assault   under    N.J.S.A.

2C:12-1, and that plaintiff needed a FRO for her protection.



                                           3                                 A-4097-15T4
       On appeal, defendant contends that contrary to the judge's

findings, plaintiff did not prove that defendant committed "a

predicate       offense         by     a     preponderance    of        the     evidence.”

According to defendant, Judge Dalton failed to appreciate the

significance        of    the       officer's     testimony   that      there     were    no

physical marks on plaintiff's neck that would confirm an assault

had been committed.              He also argues that there was no evidence

that an FRO was necessary "to protect . . . plaintiff from

future       acts    of        domestic      violence"     because        the    parties'

"relationship [was] no longer intact and [they] demonstrate[d]

that they have no desire to come into contact with each other."

We disagree.

       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.'"

                                              4                                   A-4097-15T4
Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J.

108,   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."                                 New Jersey Div. of

Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting

New Jersey Div. of Youth and Family Servs. 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,       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



                                                5                                          A-4097-15T4
perpetrator."        Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App.

Div. 1998); N.J.S.A. 2C:25-29(a)(1).

       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:25-29(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.    1995)     (citing    N.J.S.A.       2C:25-29(a));          see    also    Cesare,

supra, 154 N.J. at 402.

       Applying these standards, we find defendant's arguments to

be without sufficient merit to warrant discussion in a written

opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the

reasons set forth in Judge Dalton's thorough and thoughtful oral

opinion.        Suffice it to say, contrary to defendant's arguments,

there is no requirement for a victim of an assault to display

physical     marks     evincing    the   predicate      act.        As    long     as    the

                                         6                                        A-4097-15T4
evidence demonstrates that there was an attempt "to cause . . .

bodily   injury     to"   the   victim,     N.J.S.A.   2C:12-1(a)(1),          that

includes    "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), an assault occurred.

Moreover,     the     fact   that     the    parties    have     ended       their

relationship    and    are   likely   to    separate   does    not   in    and    of

itself warrant the denial of an FRO where the evidence supports

a finding that it is needed to protect a victim.

    Affirmed.




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