On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FV-08-1088-03.
Before Judges King, Lisa and Reisner.
The opinion of the court was delivered by: Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 4, 2004
This case presents the novel issue whether a trial court may order a defendant, already subject to a restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-29, to move out of a house in the victim's neighborhood. In this case defendant had rented the house and moved in, despite a pending motion by his ex-wife to preclude him from doing so. The trial judge ordered him to move out of the house within thirty days because defendant had a history of stalking and harassing his ex-wife and the trial judge found that his purpose in moving into her neighborhood was to continue his course of harassment. We affirm.
Because a claim of harassment, and any remedy imposed, must be viewed in light of the past history of domestic violence between the parties, we review the history that preceded the order at issue in this case. See N.J.S.A. 2C:25-29(a)(1); Cesare v. Cesare, 154 N.J. 394, 404-05 (1998).
Plaintiff Alisa Zappaunbulso (n/k/a Trombetta) (plaintiff) and Defendant Anthony Zappaunbulso (defendant) were married in 1993. In April 2001, plaintiff filed for divorce on grounds of extreme cruelty.
On June 29, 2001, plaintiff sought a temporary restraining order (TRO) against defendant, claiming that he was harassing her. She alleged that he came home intoxicated after midnight, yelled and screamed at her when she refused his sexual advances, and threatened to"get even" with her. As part of her TRO application, plaintiff also certified to a past history of domestic violence. She alleged that several months before this incident, defendant kicked down the door while she was inside the bathroom. Defendant also threw chairs and other furniture at her in front of their two young children and would kick, punch or throw objects in her presence when he was angry. He constantly criticized and verbally abused her and would scream at her for no reason. Plaintiff also stated that, at times, the defendant would try to control her by following her throughout the house, restricting her ability to leave or take the children with her outside of the house.
As a result of the June 29, 2001 application, plaintiff was granted temporary custody of the children and exclusive possession of the marital residence. Defendant was barred from the residence and prohibited from harassing or stalking plaintiff. However, on July 19, 2001, after a final hearing, the trial court dismissed the domestic violence complaint and vacated the restraining order.
On July 24, 2001, plaintiff filed another domestic violence complaint and received a temporary restraining order on the basis of harassment by the defendant. She alleged that after the hearing on July 19, 2001, defendant called her cell phone multiple times throughout the day without leaving a message and then called the house telephone at 12:30 a.m. Fearing that the ringing phone would wake the children, plaintiff answered the phone and reminded defendant that he was not to call the house at unreasonable times. Four days later, defendant appeared at the house without notice and demanded access. Later that day, he called plaintiff numerous times on her cell phone from 10:25 p.m. to 1:24 a.m. without leaving a message. When he called the house telephone at 1:28 a.m., she answered because she did not want the phone to wake up the children. At that time defendant stated that he wished to see the children on Wednesday. When plaintiff informed him that he was not to call the house at unreasonable times and that he had to give notice before visiting the house, he screamed at her and told her that he could call and visit whenever he wanted. Plaintiff, shaken and fearful, had a friend stay with her through the night.
As a result of the July 24, 2001 complaint, an order was entered again granting plaintiff temporary custody of the children and exclusive possession of the marital residence. Defendant was prohibited from any further acts of domestic violence; he was barred from the residence and plaintiff's parents' residence and prohibited from contacting, harassing or stalking the plaintiff. In addition, defendant could not visit the children but could telephone them from 6:00 p.m. to 7:00 p.m. daily. Defendant was restricted to calling the plaintiff's cell phone only to alert her that he would be calling the children so that she would have them answer the telephone.
On August 1, 2001, the domestic violence complaint was dismissed incident to the settlement of the divorce case, and the restraints were incorporated into a consent order entered in the divorce action. Under the terms of the consent order, plaintiff was awarded sole possession of the house. Defendant was permitted visitation with the children from Tuesday, 4:30 p.m. to Wednesday, 8:30 a.m. and Friday, 4:30 p.m. to Sunday, 6:00 p.m. He was required to pick-up and drop-off the children at the curbside of the marital residence; plaintiff was to stay inside the house during drop-off and pick-up. Defendant could only call plaintiff on her cell phone to discuss the children or to speak to the children from 9:00 a.m. to 8:00 p.m., although the children were able to call the defendant at any time. These restrictions on visitation and communication with the children were incorporated into the final judgment of divorce, which was entered on April 25, 2002.
On March 3, 2003, plaintiff filed another domestic violence complaint and another temporary restraining order was issued against defendant. Plaintiff alleged that defendant appeared outside her house"screaming, cursing and calling [her] crazy," and that he called her house and cell phone repeatedly.
Defendant also made derogatory comments about her in the children's presence and threatened, in front of the children, that he would call the police and have her arrested. Plaintiff recited a history of additional abuse, alleging that defendant drove by her house often, banged on her garage door and looked through her front door window. He called plaintiff and screamed at her, threatening that he was going to take the children away from her. He would also appear and confront plaintiff at the children's school and at their dental appointments.
As a result of the March 3, 2003 complaint, defendant was again prohibited from further acts of domestic violence. He was barred from plaintiff's place of employment and from going to her residence, except for the curbside pick-up and drop-off of the children. He was prohibited from leaving the car during pick-up or drop-off. Defendant was also prohibited from communicating with, harassing or stalking plaintiff.
On March 12, 2003, Judge Allen-Jackson entered a Final Restraining Order continuing all of the previously imposed restraints. Defendant was also specifically prohibited from parking in plaintiff's neighbor's driveway and watching her home. The Children's Bill of Rights was incorporated in the order, specifying that the children would not be asked to"chose sides" between the ...