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
ALIX PEREZ
951B Elizabeth Avenue
Elizabeth City NJ 07201
(908)587-8866
deadpoolchef@gmail.com
2
TABLE OF CONTENTS
TABLE OF JUDGMENTS, ORDERS, AND RULINGS ii
TABLE OF APPENDIX iii
TABLE OF AUTHORITIES iv
PRELIMINARY STATEMENT 1
PROCEDURAL HISTORY AND STATEMENT OF FACTS 1
ARGUMENT 2
I. The Trial Court erred when it failed to consider Appellant’s evidence 2
II. The Trial Court Abused its Discretion 4
CONCLUSION 6
CERTIFICATE OF SERVICE 7
APPENDIX 8
3
TABLE OF JUDGMENTS, ORDERS, AND RULINGS
- Final Restraining Order ……………………………………………….…..…………. 8
- Order Denying Appellant’s Motion for Reconsideration …………….……..………. 12
4
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
5
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
6
7
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.
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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
I. 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.
9
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.
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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.
II. 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
11
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.
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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:
ALIX PEREZ
951B Elizabeth Avenue
Elizabeth City NJ 07201
(908)587-8866
deadpoolchef@legal-writing-admin
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