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Vavzycki v. Vavzycki

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 16, 2007

HAZEL M. VAVZYCKI, PLAINTIFF-RESPONDENT,
v.
GARY VAVZYCKI, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-113-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 1, 2007

Before Judges Lisa and Grall.

Defendant Gary Vavzycki appeals from a final restraining order entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The plaintiff is defendant's mother, Hazel M. Vavzycki. Defendant argues that the evidence was inadequate to permit the trial court to find that he harassed his mother. We are bound by the judge's evaluation of the credibility of the witnesses and conclude that his factual findings are supported by "adequate, substantial, credible evidence." See Cesare v. Cesare, 154 N.J. 394, 412 (1998). Accordingly, we affirm.

Defendant's mother is eighty-one years of age. Although defendant frequently expressed his displeasure about how his mother and his siblings treated and cheated him and although he owned a mobile home of his own, he lived with her in her home.

Plaintiff and defendant went out together on the morning of July 16, 2006. He drove her van.

Plaintiff gave the following account of her relationship with defendant and the events of July 16. Because defendant often used abusive language and a "mean" tone of voice when speaking to his mother about his grievances, which made her "feel afraid," she brought a tape recorder along for the ride. She concealed the recorder in her bra. Unknown to defendant, she had used the device to record his voice in the past. As they traveled, defendant called her a "bitch." At that point, she attempted to record their conversation but hit the "play" button by mistake.

According to plaintiff, on hearing his own voice, defendant went "bananas," "crazy." When he stopped the car near his mobile home, he "attacked" her. He grabbed her left wrist and right arm and asked her to play the tape. She refused, and defendant removed the recorder from her clothing. After taking the recorder, defendant drove to Route 80. He was speeding and cutting off other drivers. Afraid to anger him further, plaintiff said nothing. Defendant left Route 80 and took a back road. He failed to "negotiate" a turn, drove off the road and hit a big rock. The car came to rest on the front lawn of a residential property. One tire was blown out.

Plaintiff got out of the car. A motorcyclist stopped at the scene, and defendant drove away and left her behind. The motorcyclist called the police on her behalf.

After about thirty minutes, Officer Murray of the Roxbury Police Department arrived. According to Officer Murray, he saw damage to the lawn, a gouge in the driveway and a small boulder on the border of the property that had been moved out of its position. He also noted that plaintiff's left wrist was bruised and her upper right arm was "reddened." He took plaintiff to the police station, where she filed a domestic violence complaint.

Defendant denied any physical altercation and gave a different account. He explained that the car went off the road because his foot slipped off the brake pedal. Plaintiff admitted that her son is an amputee and that she had been with him in the past when his foot slipped of the pedal.

Defendant kept the tape that was in the recorder. It included several recorded conversations between the parties.

The judge credited plaintiff's testimony. He found that on July 16, 2006, defendant called his mother a bitch, drove at a high rate of speed down the highway, grabbed the tape recorder from her bra, bruised her wrist, left her on the side of the road and damaged her car. Considering defendant's prior verbal abuse of his mother, which was memorialized on the tape recording defendant produced at the hearing, the judge concluded that, acting with purpose to harass, defendant engaged in a "course of alarming conduct . . . that could have no purpose other than to seriously alarm or annoy the plaintiff." The judge determined that defendant committed an act of harassment proscribed by N.J.S.A. 2C:33-4c.

We agree that plaintiff's testimony alone, if believed, established that defendant acted "with purpose to harass" his mother by engaging in a "course of alarming conduct . . . with purpose to alarm or seriously annoy" her. Ibid.

Defendant's claim -- that the evidence was inadequate to support the judge's findings or warrant the issuance of a restraining order under the PDVA -- lacks sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).

Affirmed.

20070516

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