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ALIX PEREZ, Defendant/Appellant v. .WILLIAMS DAVION Plaintiff/Respondent |
IN THE SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION DOCKET NO. ____________ CIVIL ACTION ON APPEAL FROM SUPERIOR COURT OF UNION COUNT- FAMILY PART. TRIAL COURT CASE NO. FV-20-00098622 SAT BELOW The Honorable Frederic R. McDaniel |
| BRIEF AND APPENDIX ON BEHALF OF
PLAINTIFF/APPELLANT |
TABLE OF CONTENTS
TABLE OF JUDGMENTS, ORDERS, AND RULINGS ii
PROCEDURAL HISTORY AND STATEMENT OF FACTS 1
TABLE OF JUDGMENTS, ORDERS, AND RULINGS
- Final Restraining Order ……………………………………………….…..…………. 8
- Order Denying Appellant’s Motion for Reconsideration …………….……..………. 12
TABLE OF APPENDIX
- Exhibit 1- Respondent’s Domestic Violence Complaint and Request for Temporary Restraining Order……………………………………………………………………… a
- Exhibit 2- Robert Malcic’s witness statement…………………………………………. f
- Exhibit 3- Appellant’s Motion to Reconsider…………………………………………. h
TABLE OF AUTHORITIES
Cases
A.S. Goldstein Co. v. Bloomfield Plaza, 272 N.J. Super. 59, 66 (App.Div.), certif. denied,137 N.J. 309 (1994) 3
Ernest Smith v. Malamut & Associates LLC., Case No. HUD-L-000261-21 1
Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) 4
State v. Carter, 91 N.J. 86, 106 (1982); 4
State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010) 4
State v. Morton, 155 N.J. 383, 453 (1998), 4
Storey v. Storey, 373 N.J.Super. 464, 479 (App. Div. 2004) (citations omitted) 4
Rules
N.J.R.E. 401 2
PRELIMINARY STATEMENT
This appeal arises from the Trial Court’s decision in Williams Davion v. Alix Perez, Case No. FV-20-00098622, where the learned Judge Honorable Frederic R. McDaniel entered an Order granting Respondent’s Domestic Violence Civil Complaint, and issued a Temporary Restraining Order in that regard. The said Court further denied Appellant’s Motion for Reconsideration. In this appeal, the Appellant argues, inter alia, that the judge got the facts wrong. Appellant further contends that the judge’s findings was not complete insofar as he did not hear from Appellant’s two witnesses and he only reviewed two of the 14 pieces of evidence that Appellant’s attorney submitted to the court.
PROCEDURAL HISTORY AND STATEMENT OF FACTS
Appellee filed a Domestic Violence Complaint and a request for a Temporary Restraining Order on or about December 23, 2021. In the said Complaint, the Appellee alleged that the Appellant endangered his life and that on December 20, 2021, the Appellant subjected Appellee to yelling, profanity, name calling, and threatened to hit Appellant. The Appellee further alleged that the Appellant has a history of domestic violence where the Appellant previously slapped Appellee on his body, and threatened to hit Appellee. (Exhibit 1).
The matter was heard before the Trial Court, where both parties presented their case. On or about January 26, 2022, the Appellant’s Attorney submitted 14 pieces of evidence, and two witnesses to the Court for Appellant’s defense. The Court allowed the Appellee to submit testimony that was not listed in the Temporary Restraining Order or presented to the Appellant. However, the Judge only considered two of Appellant’s 14 pieces of evidence. The Judge also failed to consider the Appellant’s two witnesses, whose testimonies would show that the Appellant did not commit domestic violence. (Exhibit 2). The Judge also kept interrupting and yelling at the Appellant during trial. As a result, the Appellant could not answer all questions fully, hence resulting to the credibility finding against the Appellant.
On or about March 2, 2022, the Court issued an Order finding the Appellant liable for domestic violence. Accordingly, the Court issued a Temporary Restraining Order against Appellant.
On or about March 3, 2022, the Appellant filed a Motion to Reconsider where the Appellant raised concerns that the Court did not consider the Appellant’s evidence and the 2 witnesses. (Exhibit 3).
On or about [ENTER DATE], the Trial Court issued an Order denying Appellant’s Motion to Reconsider.
ARGUMENT
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The Trial Court erred when it failed to consider Appellant’s evidence
Appellant avers that his due process rights were violated by the Trial Court. New Jersey’s Rules of Evidence provide the basic blueprints for the admission of evidence. As an initial inquiry, the Courts examine whether evidence tendered is relevant, that is, whether it is “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. If the evidence is deemed relevant, the Rules are clear: “[e]xcept as otherwise provided in these [R]ules or by law, all relevant evidence is admissible” and “evince a more expansive approach to the admission of evidence.” See N.J.R.E. 402; see also A.S. Goldstein Co. v. Bloomfield Plaza, 272 N.J. Super. 59, 66 (App.Div.), certif. denied, 137 N.J. 309 (1994).
In the instant action, the Trial Court failed to consider pertinent evidence from the Appellant. Appellant submitted 14 pieces of evidence. The Trial Court only considered 2 of the pieces of evidence. The said evidence would have shown the state of the friendship between the Appellant and the Respondent, the context in which the Respondent is using improper channels to evict the Appellant, and to discredit any allegation of violence against Appellant. The Judge also failed to consider witness testimony from two key witnesses. Robert J. Malcic and James Perry were at the scene of the incident that led the Respondent to file for a Restraining Order. If the witnesses would have been allowed to testify, the Court would have observed that the Appellant did not threaten the Respondent. The Court would also observe that Appellant kept a good relationship with the Respondent. During the trial, the Judge was informed that the said witnesses were available to testify, but the Judge ignored them.
During the trial, the Judge relied on allegations made by the Respondent without any evidence to support the allegations. Notably, the Respondent lied that during the summer of 2021, that the Appellant grabbed him by his hair and dragged him down the stairs and repeatedly pushed and kicked him. The Judge used this testimony even though there were no witnesses, no police report, and no hospital records in support. The Judge also failed to consider that the Appellant and the Respondent remained living together for six months after the alleged summertime incidence in 2021. Further, the Judge did not consider the abundance of text messages between the Appellant and the Respondent where the Respondent told the Appellant that he loved him. There was therefore no valid proof of prior violence caused by the Appellant.
It follows; the Appellant asserts that the Trial Court erred in failing to consider Appellant’s evidence, which would have provided facts to show that Appellant did not commit the domestic violence as alleged by the Respondent.
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The Trial Court Abused its Discretion
Appellant avers that there was insufficient evidence to find that Appellant had committed domestic violence, and that the Trial Court abused its discretion by failing to consider the Appellant’s evidence. The abuse of discretion standard of review requires the Appeal Court to give “substantial deference to trial [judge’s] evidentiary rulings.” State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
“[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted.” State v. Carter, 91 N.J. 86, 106 (1982); see also State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
While the “‘abuse of discretion’ standard defies precise definition,” Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted), “we do not overturn those determinations unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence.” Storey v. Storey, 373 N.J.Super. 464, 479 (App. Div. 2004) (citations omitted).
In the instant action, the Trial Court abused its discretion when it failed to consider the Appellant’s evidence, which would raise pertinent facts contrary to the allegations made by the Respondent. As already stated above, Appellant submitted 14 pieces of evidence. The Trial Court only considered 2 of the pieces of evidence. The said evidence would have shown the state of the friendship between the Appellant and the Respondent, the context in which the Respondent is using improper channels to evict the Appellant, and to discredit any allegation of violence against Appellant. The Judge also failed to consider witness testimony from two key witnesses. Robert J. Malcic and James Perry were at the scene of the incident that led the Respondent to file for a Restraining Order. If the witnesses would have been allowed to testify, the Court would have observed that the Appellant did not threaten the Respondent. The Court would also observe that Appellant kept a good relationship with the Respondent. During the trial, the Judge was informed that the said witnesses were available to testify, but the Judge ignored them.
The Judge also relied on allegations made by the Respondent without any evidence to support the allegations. Notably, the Respondent lied that during the summer of 2021, that the Appellant grabbed him by his hair and dragged him down the stairs and repeatedly pushed and kicked him. The Judge used this testimony even though there were no witnesses, no police report, and no hospital records in support. The Judge also failed to consider that the Appellant and the Respondent remained living together for six months after the alleged summertime incidence in 2021. Further, the Judge did not consider the abundance of text messages between the Appellant and the Respondent where the Respondent told the Appellant that he loved him. There was therefore no valid proof of prior violence caused by the Appellant.
It is also notable that during the trial, the Judge kept interrupting the Appellant, which interfered with Appellant’s answering of questions. The Judge then went ahead to erroneously conclude that the Appellant’s allegations were not credible yet the Appellant was not accorded sound time to state his case. Such action by the Court hampers Appellant’s access to justice and therefore shows how the Trial Court abused its discretion.
CONCLUSION
For the reasons stated above, Appellant respectfully requests that this Honorable Court enter an Order:
- Reversing the Trial Court’s Judgment;
- Granting any other Order that this Honorable Court deems just and fit.
Dated:
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a copy of the foregoing brief on counsel for the Respondent by depositing a copy, contained in a first-class postage-paid wrapper or envelope, at an office of the United States Postal Service, addressed as follows:
[ENTER RESPONDENT’S ADDRESS]
APPENDIX
Final Restraining Order
Order denying Appellant’s Motion for Reconsideration
(Attach the Order)
Exhibit 1- Respondent’s Domestic Violence Complaint and Request for Temporary Restraining Order.
Exhibit 2- Robert Malcic’s witness statement
Exhibit 3- Appellant’s Motion to Reconsider
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