NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant appeals from a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to-35. We affirm.
We discern the following pertinent facts from the January 14, 2013 FRO hearing in which both parties were represented by counsel and only they testified. Plaintiff and defendant are college students, attending separate New Jersey colleges, who started a dating relationship in July 2013. Plaintiff plans to transfer to defendant's school at some point.
On November 28, 2013, they celebrated Thanksgiving by having dinner at a New York City restaurant with defendant's parents and brother. According to plaintiff, after the waiter brought the dinner bill to the table, defendant was offended by her response to his comment concerning the bill. Shortly thereafter, they walked a few blocks to his brother's apartment before going to his parents' hotel. Plaintiff claimed that when they got to the apartment, defendant gave her the "silent treatment" and made harassing comments to her under his breath. After being in the apartment a short period of time, they walked to the hotel, a block away. The record does not disclose if defendant's brother was with plaintiff and defendant when they went to the apartment.
When defendant and plaintiff arrived at the hotel room, his parents were there. Plaintiff testified she wanted to be by herself, so she went to another room. Defendant followed her into the room and proceeded to grab her hair and pull her to the floor. As she tried to move away, defendant grabbed her back and ripped her coat, causing a tear in her left sleeve. The coat was admitted into evidence. Plaintiff stated she was very afraid and didn't understand why defendant did this to her. She claimed she didn't tell his parents about the incident because it was Thanksgiving.
Subsequently, plaintiff and defendant returned to the apartment, where they were supposed to stay the night. The brother was there and sensed there was a problem between plaintiff and defendant. Trying to resolve the situation, the brother had defendant step out in the hallway while plaintiff remained inside the apartment to speak to the brother alone. Plaintiff told the bother what happened in the hotel. At some point, defendant started pounding on the door and was let back inside the apartment. Plaintiff left the apartment and waited in the hallway while defendant and his brother remained in the apartment. She then heard fighting going on inside the apartment. She went back into the apartment, whereupon she tried to calm defendant down. Defendant, however, struck plaintiff in the left arm causing a bruise. Plaintiff's cell phone picture depicting a bruise of about an inch in diameter was admitted into evidence. She claimed that the next day, she could not move or lift her left arm.
Defendant's parents were contacted. After they arrived at the apartment, defendant's mother took defendant back to the hotel. The father remained with plaintiff in the apartment until they also returned to the hotel sometime later. Plaintiff contends that when she returned to the hotel room, defendant was in the bathroom saying he was going to commit suicide.
Early that morning, plaintiff took the train to return to her New Jersey home. While on the train, plaintiff received a call on her cell phone from defendant, using his mother's cell phone. Plaintiff testified that defendant said he had destroyed his phone. According to plaintiff, defendant said he was going to catch a train to visit her. Defendant made several more calls to plaintiff later that morning and the next day, however, she did not answer the calls nor did he visit her.
Plaintiff testified that on the Saturday following Thanksgiving, she sent defendant a Facebook message that it would be best if they never see each other again. Following that message, she blocked defendant on her Facebook account. She also blocked defendant's and his parents' cell phone numbers from her cell phone.
On Monday, defendant phoned plaintiff from an unknown number, and she answered the call. They made plans to meet. Plaintiff contended she agreed to meet because she needed closure.
The next day or so, plaintiff drove to defendant's dormitory room.1 She arrived around noon, and stayed until about midnight. At some point, they had sexual relations. Plaintiff testified that around 8:00 or 9:00 that evening, she felt defendant became tense and that she should not have visited him. Later, after she told him she was leaving, defendant sat on top of her and begged her for about fifteen minutes to stay. Defendant then punched her in the stomach about four or five times and put his hand around her mouth and nose, making her unable to breath. Plaintiff testified that after she left, she felt afraid.
About six days later, she obtained a temporary restraining order against defendant. In addition, plaintiff testified that she scheduled domestic abuse counseling after the Thanksgiving incidents, but did not start her therapy until after the dormitory room assault in early December.
Additionally, plaintiff testified about two unreported incidents in October 2013, during which defendant physically assaulted her. The first time occurred after defendant looked on her cell phone and saw a message from a male friend of hers. Defendant became jealous, accusing her of socializing with this friend the previous weekend. When plaintiff refused defendant's demand to telephone her friend using her phone's speaker mode, defendant put his hand around her throat to force her to make the call. She made the call, and after speaking to her friend, defendant apologized to her when he realized there was no reason to be jealous.
The second time occurred when plaintiff and defendant were studying in his school's library. Plaintiff claimed that defendant taunted her, so out of frustration, she struck him with her pocketbook. In response, defendant slapped her across the face with an open hand. Plaintiff retreated to a one stall women's bathroom. However, defendant entered the bathroom, and while she was sitting on the floor, he kicked her on the leg, leaving a mark. Plaintiff stated she was shocked by both of these incidents, and after each one, defendant said he was sorry.
Defendant testified that he and plaintiff had arguments, but denied ever harming her during their relationship. He also denied ever stating that he would commit suicide. Defendant stated that during the library incident, she struck him first in the face with her pocket book. Defendant contends that he ended his relationship with plaintiff when she last visited his dormitory room in early December because she would constantly cause arguments, was not serious about her studies, and had family issues. He did not contact her after their relationship ended.
Following closing arguments, the judge issued a bench decision. The judge found plaintiff's testimony credible and that defendant's intentional "pattern of conduct caused her pain, fear, and to be afraid and [] in shock." The judge found that defendant assaulted plaintiff in violation of N.J.S.A. 2C:12-1, while they were in a dating relationship, on two separate occasions after Thanksgiving dinner, and plaintiff did not exercise "good sense" in visiting defendant's dormitory room following the Thanksgiving incidents. The judge also found that plaintiff was not afraid of defendant a few days after Thanksgiving when she visited his dormitory room, but the assault that occurred after they had sexual relations was in effect the final straw before plaintiff sought judicial relief. The judge issued an FRO because there was a need for "ongoing protection" due to defendant's repeated assaults against plaintiff and her plans to transfer to the same university as defendant. N.J.S.A. 2C:25-19(a)(1). This appeal followed.
On appeal, defendant contends the issuance of the FRO is not supported by the evidence. Defendant argues there was an absence of immediate danger to plaintiff given that defendant had not contacted or attempted to contact her since they were together in his dormitory room. He also contends a restraining order is not necessary to prevent further abuse as the parties are no longer interested in each other. We are unpersuaded.
Our review of a trial court's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Findings by the trial court "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 412 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Appellate courts should defer to trial court's credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).
An FRO may issue only if the judge finds the parties have a relationship bringing the complained of conduct within the PDVA, N.J.S.A. 2C:25-19(d); the defendant committed an act designated as domestic violence, N.J.S.A. 2C:25-19(a); and the "restraining order is necessary, upon an evaluation of the factors 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." Silver v. Silver, 387 N.J.Super. 112, 125-27 (App. Div. 2006). Relevant here, the predicate act of assault is defined in N.J.S.A. 2C:12-1, which provides simple assault occurs when a person "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]"
Applying those principles here, we conclude there is no basis to disturb the factual findings or legal conclusions of the trial court. Both parties testified. The judge had ample opportunity to assess their credibility, and obviously found defendant's testimony unbelievable and wanting. Although defendant stated that he did not harm plaintiff, a review of his testimony reveals that he never denied striking, grabbing, or kicking her, as she alleged. On the other hand, plaintiff painted a detailed picture of her former boyfriend, who had anger control issues and physically assaulted her multiple times, causing her to be fearful of him. Plaintiff's testimony was substantiated by the evidence of a photo of her bruised arm and her ripped jacket caused by defendant's abuse. The trial judge's determination that defendant committed acts of assault against plaintiff and an FRO was necessary to protect plaintiff from further abuse is based on findings of fact adequately supported by the evidence.
Affirmed.
