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McGowan v. O'Rourke

April 3, 2007

PATRICIA MCGOWAN, PLAINTIFF-RESPONDENT,
v.
LEWIS O'ROURKE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FV-21-434-06.

The opinion of the court was delivered by: Lyons, J.S.C.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted January 24, 2007

Before Judges A. A. Rodríguez, Collester and Lyons.

In this domestic violence case, defendant, Lewis O'Rourke, appeals from a Final Restraining Order ("FRO") entered against him in the Family Part pursuant to the Prevention of Domestic Violence Act (the "Act"), N.J.S.A. 2C:25-17 to -35 on February 8, 2006, in favor of plaintiff, Patricia McGowan. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

The parties had a dating relationship. The parties broke up but did not reconcile as they had in the past. Eventually, plaintiff sent defendant an e-mail telling him that their relationship was over and that she did not want him to contact her again. Defendant testified that, after receiving the message, he tried to contact plaintiff again, but only for the purpose of obtaining the return of his camera, which he had earlier loaned to her. Sometime after that, plaintiff's sister received an envelope addressed to her with no return address. Inside the envelope were twelve photographs of plaintiff in sexually explicit positions together with an e-mail and a printout from a web-site. Defendant acknowledged that he took all of the photographs in the envelope. Also in the envelope was a note asking for the return of his camera.

Plaintiff testified that later the next day, defendant telephoned her and asked her how her sister liked the photographs and that if she did not like them, maybe her son or some of the people at work could see them. Defendant testified that he sent the photographs to plaintiff's sister because he had no way of getting in touch with plaintiff because she had cut him off completely. He also testified that he thought it was appropriate to send plaintiff's sister the graphic pictures because he wanted to return her goods and get his camera back. He compared the act of mailing the photos as an "olive branch" in an effort to regain possession of his camera.

On January 24, 2006, plaintiff obtained a temporary restraining order alleging that on January 24, 2006, the defendant mailed nude pictures of the plaintiff to her sister and had threatened to send them to her work and to her son. Defendant follows plaintiff while she is at work, at home, or out socially, and defendant has told plaintiff 'if he can't have her, no one will.'

The complaint alleged predicate acts of domestic violence, lewdness, harassment and stalking.

On February 2 and 8, 2006, the trial court heard testimony. After the conclusion of plaintiff's case, the trial judge dismissed the lewdness and stalking charges. At the conclusion of the trial on February 8, 2006, the trial judge rendered an oral decision in which she found defendant had committed harassment, an act of domestic violence. The court, in its decision, stated:

I just looked through the photographs. Clearly, some of them are very, very graphic, pornographic I should say and the defendant admitted taking these photographs and they were meant to be just for him and the plaintiff for their fun and benefit.

There's no dispute that these are very, very graphic pictures and it would be -- if they got into the wrong hands, intensely humiliating, and embarrassing, and degrading for the plaintiff.

There is no mistake that the defendant did send them to the plaintiff -- the plaintiff's sister, pardon me, and that act clearly is an ...


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