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Larkin v. Larkin

January 8, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FV-03-1856-05W.

Per curiam.



Argued October 31, 2006

Before Judges Skillman and Lisa.

Defendant, Marcia Larkin, appeals from a final restraining order entered under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff, Kevin Larkin. The predicate offense was harassment (N.J.S.A. 2C:33- 4c). See N.J.S.A. 2C:25-19a(13). Defendant argues on appeal that the trial court erred in finding that her conduct constituted domestic violence and violated her due process rights by finding that she committed an act of domestic violence not even alleged in the complaint. We reject these arguments and affirm.

The parties were married in 1984. They had two children, Kevin, born March 28, 1985, and Daniel, born May 10, 1988. Plaintiff is the Sheriff of Mercer County, and he possessed a service weapon. On June 30, 2001, Daniel, then thirteen years old, came into possession of his father's service weapon and ammunition and accidentally shot and killed himself. Naturally, both parents were distraught over this tragedy. Defendant attributed significant blame to plaintiff for Daniel's death, and this incident contributed significantly to the deterioration of the marriage.

Plaintiff began an extramarital affair, which resulted in the birth of two sons, J.M., born on March 23, 2004, and P.M., born on May 17, 2005. By the summer of 2004, defendant's emotional condition continued to decline. She suffered from depression. She attempted suicide. She was confined for a week at a psychiatric facility. She has been found disabled by the Social Security Administration, apparently as a result of her mental health condition.

On August 5, 2004, one day after defendant was released from the psychiatric facility, plaintiff filed for divorce. The parties then ceased living in the same home. Plaintiff continued to reside in the marital home in Yardville. Defendant lived at several locations, including at the parties' Ortley Beach shore home, with her sister, and ultimately in her own apartment.

The conduct constituting the predicate offense occurred between June 10 and June 14, 2005. That conduct, however, must be considered in light of the previous history of harassing conduct by defendant. N.J.S.A. 2C:25-29a(1); Cesare v. Cesare, 154 N.J. 394, 402 (1998). We therefore describe the prior history.

During the fall of 2004, defendant placed under the windshield of plaintiff's car two photographs. One depicted both of their sons, with the caption, "Daddy we thought you only had 2 children! Us." The other depicted Daniel in his casket, bearing the caption, "This is when I became unstable. You go from one crazy woman to a crazier woman!!!!!"

Although defendant ceased living in the Yardville home in late July 2004, she broke into the home three times. On one occasion, she entered plaintiff's bed while he was sleeping. On another occasion, she destroyed his computer.

On December 6, 2004, plaintiff filed a domestic violence complaint against defendant, alleging the most recent break in on December 6, 2004, at which time the police were called and defendant refused to leave. Plaintiff also alleged that defendant called him more than forty times in one month, sometimes in the early morning hours, and that she threatened him physically and threatened to "destroy" him. Defendant also stood outside of the marital home screaming that plaintiff had killed their son. A temporary restraining order was issued, but rather than proceed to a final hearing, on December 20, 2004, plaintiff voluntarily withdrew the domestic violence complaint. The temporary restraining order was dismissed and the parties entered into a consent order in the matrimonial action providing for mutual civil restraints. The consent order prohibited any personal, email, telephone, or written contact. It also barred defendant from the marital home, and barred defendant from having any such contact with plaintiff's paramour, L.M.

In January 2005, plaintiff's attorney corresponded with defendant's attorney, reporting defendant's violation of the consent order by sending plaintiff two emails and appearing at plaintiff's residence. The letter further stated that "[i]f she violates [the consent order] again, appropriate action will be taken through the Courts." In the ensuing months, defendant continued to initiate contact with plaintiff. On March 23, 2005, the first birthday of plaintiff's and L.M.'s son, J.M., defendant placed a stuffed animal with a note stating, "Happy First Birthday [J.M.M.] Dan will be your ...

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