June 19, 2007
SHERI E. DETROLIO, PLAINTIFF-APPELLANT,
LARRY J. HYPES, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FV-07-345-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 20, 2006
Before Judges Stern, A. A. Rodríguez and Lyons.
Sheri E. DeTrolio appeals from the October 7, 2005 order dismissing her domestic violence complaint and vacating an amended temporary restraining order (TRO) entered on August 16, 2005 against Larry Hypes. We affirm in part. However, we conclude that the proofs regarding the July 20 and 25, 2005 incidents, where Hypes made harassing telephone calls to DeTrolio and two of her co-workers, constitute acts of domestic violence.
DeTrolio, a forty-four year old Executive Assistant, commenced a dating relationship with Hypes in May 2003. Hypes is a general contractor. The relationship has been rocky. According to Hypes, they have broken up and reconciled seven times. There is a prior history of intervention by the Family Part and police due to the parties charges and countercharges of domestic violence. The Family Part first granted DeTrolio a final restraining order (FRO) against Hypes in March 2004.
On October 6, 2004, Hypes invited DeTrolio out to dinner because "he wanted to talk things out, to try to . . . persuade [her] to drop the charges against him." Later that evening, Hypes came uninvited to DeTrolio's home, "pushed his way in" and "kicked [DeTrolio] in the chin, knocked [her] on [her] steps . . . twisted [her] fingers around, . . . smashed [her] head against the floor . . . [and] had put his . . . hand around [her] neck and held [her] against the wall." DeTrolio reported the incident to the police.
In November 2004, Hypes filed a complaint against DeTrolio alleging acts of domestic violence. He obtained an FRO against DeTrolio. However, following a hearing, a Family Part judge denied an FRO and dismissed Hypes' complaint.
On November 19, 2004, DeTrolio filed a contempt charge against Hypes for violating the FRO by "calling [her] persistently and endlessly all hours of the day and night on all [her] phone numbers," and for "coming to every single beauty salon or nail salon or . . . restaurant or supermarket that [she] frequented." Despite the reciprocal restraining orders, the parties continued to see each other socially, during this time. They spent Christmas 2004 and New Years Eve together. The record contains photograph that depict her and Hypes, "cuddling" under the Christmas tree on December 25, 2004, and "hugging" at a New Years Eve party on December 31, 2004.
In January 2005, the Family Part denied Hypes' request for a TRO against DeTrolio.
In February 2005, Hypes moved to vacate the FRO. In support of his motion, he certified among other things, that "I have not perpetrated any violent acts on the victim or other persons;" and "[t]he nature of the relationship today is such that [DeTrolio] and I have no reason to contact each other and we do not contact each other." Surprisingly, DeTrolio consented to the vacation of the FRO, later explaining that she did so because "[t]he restraining order had not worked for [her] . . . [Hypes] had no respect for it . . . [and] I would not have been able to enforce every single violation and continue to hold down my job and pay my bills."
Hypes testified that after the restraining order was lifted, he and DeTrolio "left the courtroom, went to the Highlawn Pavilion, had dinner, went to the City, [and] spent the night." The following morning, she had a seizure and he took her to the hospital. According to Hypes, he and DeTrolio continued to enjoy lunches and dinners together. She accepted his employees doing landscaping and run errands for her. He sent her flowers and furniture. They spent six days together around the Memorial Day weekend 2005 at the Montauk Yacht Club. They spent every weekend together, often going to New York, the Hamptons, and New Hope, Pennsylvania.
Several months later, DeTrolio signed a complaint alleging multiple acts of domestic violence by Hypes between July 13, 2005 and August 5, 2005. A TRO was issued by the Family Part. Before the hearing on these allegations, DeTrolio amended the complaint to include additional incidents of domestic violence. It is on these allegations that the present appeal is predicated.
The matter was heard over four sessions. Each party was represented by counsel. The judge heard testimony from DeTrolio and seven of her witnesses and Hypes and five of his witnesses. At the conclusion of the hearing, the judge made findings in an oral decision dated October 7, 2005 that was followed by a written amplification on December 21, 2005. The testimony reveals the following.
The July 13, 2005 Incident
DeTrolio testified that on July 13, 2005, at approximately 10:00 p.m., Hypes arrived at her home uninvited. He pounded on the door and demanded that "we need to talk." She replied that "it's late, I don't want you to come in. I have to get ready for work, get organized for tomorrow, I want you to leave, and he pushed open the door." After pushing his way into the room, he called her a bitch and a whore, and accused her of being on a date. He told her "now he knows why men kill women." He got very close to her as he was yelling. She could smell alcohol on his breath. Despite her asking him to leave fifteen to twenty times, he was in her residence for forty-five minutes. Before he left, he told her "revenge is fun."
Hypes testified that he never forced his way into DeTrolio's home that evening. DeTrolio's counsel did not cross examine Hypes with regards to this incident.
The judge made a credibility determination. She said in her oral opinion:
I find it credible when she says he was in the house, came over drunk. The problem that I do find difficulty, when she said he forced his way in because she did have the availability of the telephone and she didn't contact the police at that point.
In the written decision the judge found:
[I]t not credible that he forced his way into her house . and threatened her with bodily injury during the argument. I do not find that he made any threats to do DeTrolio bodily harm.
The July 15, 2005 Incident
DeTrolio testified that on July 15, 2005, she had taken her dog to the veterinary office. Hypes showed up there. When she asked him what he was doing there, he replied, "I saw your car in the parking lot." DeTrolio was "shocked" to see him there because she did not tell him she was going to be there. According to DeTrolio, Hypes bought her a Maltese puppy. She did not want the puppy, but Hypes forced her to take it. Hypes agreed to pay for a dog walker. After a week, he took the puppy back from the dog walker because DeTrolio did not want the puppy. DeTrolio reported to the police that Hypes had stolen her dog. Because the ownership papers were still in Hypes' name, he was not arrested. DeTrolio took the dog back after Hypes signed a paper transferring ownership to her.
Hypes testified that he knew DeTrolio would be at the veterinary office because the night before he spoke with her about the dog, which he purchased for her for $3,500 or $3,800. According to Hypes, DeTrolio had asked him to "come by the veterinarian's office and pick [the dog] up and take [the dog] back with [you]." This is something that he "always did so she could go ahead and go onto work because her work was like a mile from the veterinarian's office . . . ."
The judge found Hypes' testimony "generally credible" and that "he was in these places for valid reasons." The judge wrote that DeTrolio, "has a strong tendency to ignore reasonable explanations for [Hypes]'s actions. For example, according to Ms. DeTrolio . . . . [Hypes] had given [her] a dog a few weeks before but when he went to the vet she was astonished and afraid."
The July 16, 2005 Incident
On July 16, 2005, at approximately 7:00 p.m., DeTrolio was home waiting for a friend, Robert Schoenfeld, to pick her up to go to dinner. She looked out her window and saw Hypes driving very slowly. They made eye contact. She was concerned that there may be a situation so she called Schoenfeld. She explained the situation and asked him to pick her up somewhere else. He refused and picked her up at home.
Schoenfeld testified that he observed Hypes standing by himself outside his vehicle, which was parked approximately forty to fifty feet from DeTrolio's residence, "looking toward DeTrolio's residence." After Schoenfeld picked DeTrolio up and they were exiting, Hypes told DeTrolio that "the least you could do is smile and wave."
On their way to the restaurant, DeTrolio received two cell telephone calls from Hypes. At the restaurant, DeTrolio played the messages for Schoenfeld. In the first message, Hypes questioned why DeTrolio would date a loser when she could be with someone like himself. In the second message, Hypes stated that if he couldn't have her, no one could. Schoenfeld testified that after listening to the messages, he observed that DeTrolio "started to physically shake."
After dinner, a third voicemail was on her telephone which she did not share with Schoenfeld. When they arrived at DeTrolio's home at 11:00 p.m., they observed Hypes' vehicle still parked in the complex and telephoned the police.
Hypes testified that on that night he, Jude Roppate and Manny Folston were going to New York City with Rebecca Isley and Melissa Reemy. Roppate's house, which is next door to DeTrolio's, was the meeting place. Hypes admitted calling DeTrolio that night and telling her to smile. However, he denied leaving threatening messages.
Folston testified that at approximately 6:45 p.m., he met Hypes at Roppate's house, which was located near DeTrolio's home. Hypes arrived at the house, with some females, at approximately 7:00 p.m. At approximately 7:30 p.m., he went to New York City with Hypes, Roppate and two other women. Because Folston drove, Hypes' left his car parked in the lot adjacent to Roppate's house.
Roppate testified that Folston and Hypes arrived at approximately the same time. They returned to his house after midnight.
Isley testified that she and Reemy arrived at Roppate's house at approximately 6:30 PM. Reemy testified that they arrived at the house at approximately 8:00 p.m. Then they, along with Hypes, went into Roppate's house to have a drink. They all left for New York City in a different vehicle than the one in which they had arrived.
The judge noted that:
[T]he parties that came to testify concerning the July 16th incident indicate that [Hypes] was at the . . . next door neighbor's for the purpose of having a social engagement. [H]owever, even though we went back and forth about who was there and why he was there, there's no doubt that he called her two or three times and commented to her about her date, and that wasn't even denied by [Hypes].
The judge wrote in her written amplification that:
[DeTrolio] had a strong tendency to ignore reasonable explanations for [Hypes]'s actions. For example, according to  DeTrolio, seeing [Hypes] drive slowly by her home and park nearby petrified her . . . . In the course of questioning during cross-examination [DeTrolio] seemed completely surprised, as if the thought had never occurred to her, at the idea that [Hypes] might have been visiting his friend who lived next to [DeTrolio].
The July 18, 2005 Incident
According to DeTrolio, Hypes began to show up at her gym in West Caldwell during the same periods that she was present. On July 18, 2005, she was leaving the gym when she observed Hypes talking to a woman. The woman then walked by DeTrolio and called her a "bitch."
Hypes testified that he was a member of the gym since 1998. His friend, Jeff Johnson, testified that he was training Hypes. They worked out at the gym in the summer of 2005.
The judge found Hypes and Johnson were credible. Because Hypes was a member of the gym since 1998, DeTrolio should not have feared bodily harm by his presence at that location.
The July 19 and 20, 21 and 25, 2005 Incidents
On July 19, 2005, DeTrolio received approximately eight prank telephone calls at her place of employment. However, she could not identify the caller because the caller would hang up as soon as she answered the telephone. She never received prank calls before. That day, she was granted a TRO against Hypes. On July 20, 2005, while at work, DeTrolio received two telephone calls from Hypes, who told her that "revenge is sweet" and hung up.
DeTrolio produced two witnesses, co-workers Robin Rost and Laura Giampietro. Rost testified that on July 20, 2005, she received a telephone call from a man with a southern accent, who identified himself as a client. The caller would not identify himself and informed her that a person "of the Jewish persuasion" who "worked for the head honcho" was spreading rumors about her and other co-workers. The caller informed her that he watched her eat lunch that afternoon and correctly described what she was eating. She reported this to Giampietro.
Giampietro testified that on July 25, 2005, she also received a telephone call from a man with a southern accent claiming to be a client. He would not identify himself. The caller said "Hi, Laura." Despite Giampietro's attempts to have the caller identify himself. However, unlike Rost, she was able to identify the caller as Hypes because in May 2005, she met a man with a southern accent while at lunch. The man identified himself as a client of her employer. He asked her whether she was in the insurance business and proceeded to ask her if she knew DeTrolio and what she thought of her. Additionally, the caller told Giampietro, "if you stick around [DeTrolio]'s like clockwork, she'll be here in about five minutes." Giampietro, assuming it was Hypes, responded "Yes, Larry, I know who you are," and told him that "if you don't stop calling there's going to be more people involved in this conversation than just you and I." The caller then hung up on her. Giampietro identified this caller in court as Hypes.
The judge found:
[T]here has been no denial of what I consider to be . . . the most troubling communications [as alleged] by two of DeTrolio's co-workers that phone calls were made to her place of business, suggesting that she was saying bad things about someone from the place of business. And the co-workers identified Mr. Hypes. One of the co-workers identified his voice and one of the co-workers identified having met him at King's and having heard from him that he knows what her shopping patterns were. I actually considered this to be the most damaging because . . . it's not someone's interpretation of what happened, it's rather certainly stir up trouble at work for Ms. DeTrolio.
In the written amplification the judge stated:
[T]he allegations of phone calls made by a customer with a deep southern accent attempting to bring to the attention of the company rumors being spread by [DeTrolio] does not provide proof of purpose to harass. While Mr. Hypes never denied that he made these calls, there was not sufficient evidence provided to explain the caller, the nature of the calls, or the caller's intent.
The July 21, 2005 Incident.
On July 21, 2005, DeTrolio was having dinner at South City Grill with several friends. While at the bar, she was kicked in the back of her leg. When she turned around, Hypes was sitting on a barstool, a couple of feet away, staring at her. She began to physically shake and reported this incident to the police.
Hypes testified that he "heard about the kick." He was at the restaurant with friends Shannon, Mary and Eleanor. He saw DeTrolio standing behind him in the mirror at the bar. At 1:00 a.m., DeTrolio arrived at his home, uninvited. He informed her that he had company. Before she left, she gave Hypes her new cell phone number and told him to call her. After DeTrolio received the TRO, she continued to call him and go to his job site. DeTrolio did not dispute this.
The judge concluded that a criminal assault did not occur. In her written amplification, the judge stated that assuming that Hypes did kick DeTrolio, it was to get her attention, and "[t]ouching someone in order to get his attention is not a criminal act of assault."
The July 25, 2005 Incident
On July 25, 2005, DeTrolio was at Forte's Restaurant with a male friend. During her meal, Hypes entered the restaurant with a "large friend." Both of them stared directly at her. She did not invite them or tell them she would be there. Hypes spoke to "one of the men behind the counter" for about ten minutes, then they left. As Hypes and his companion walked out of the restaurant, Hypes stared at DeTrolio with a look of "intimidation."
Hypes testified that he went to the restaurant because he was doing a major renovation for Forte in another location. He was there discussing the job and "drawings of a new restaurant that we're putting together . . . . For Forte's Restaurant up in Randolph."
The judge did not make a specific finding of fact as to this encounter in her oral opinion. In the written amplification she stated:
I do not find that most of the conduct complained of was even directed at [DeTrolio];  Hypes was merely going about his regular business. DeTrolio complained about seeing [Hypes] in places he had a valid reason to be. I find that [Hypes'] presence at . . . a restaurant to see a client [was not an event] capable of causing a reasonable person in [DeTrolio's] shoes to fear bodily harm.
The August 5, 2005 Incident
On August 5, 2005, DeTrolio went to Nanna's Deli for lunch. She saw Hypes. He stared at her. He did not enter the deli, but instead he immediately turned around and walked out. This made her very nervous. Therefore, she called a friend, Mel Chettum, and asked him to come to the area and look for Hypes. DeTrolio then went to her 1:00 p.m. hair appointment. On her way to her appointment, she saw Hypes with another person eating outside another deli. He, again, stared at her.
Chettum testified. He stated that he observed Hypes in the parking lot across from Nanna's deli. He further stated that he observed Hypes walking "through the parking lot over to the next set of strip mall, one door down from where DeTrolio was located." Hypes then went into a store one door over from DeTrolio's hair salon. Chettum called DeTrolio and advised her that Hypes was too close and she should call the police.
Hypes testified that he went to Nanna's for lunch with two of his workers. He had a 2:00 appointment with a client at the Grey Dove store. He ordered lunch and then the men went to the picnic tables. He entered the deli and saw DeTrolio, so he left. He and his workers, decided to go have lunch at Coca Bella's deli. Then, they went to the Grey Dove, where he was arrested for violating the temporary restraining order.
The judge found Hypes to be credible as to the purpose of his presence in that location. With respect to all of the charges, the judge found that DeTrolio did not meet her burden of proving the elements of any of the alleged crimes: stalking, harassment or assault. In her written opinion, the judge found:
The Court had the opportunity to hear the witnesses' testimony, observe their demeanor and consider the evidence. [DeTrolio] came across as a credible witness in that she seemed to believe what she said and certainly seemed to be afraid of [Hypes]. Nonetheless, it is necessary to examine the facts objectively. [DeTrolio] had a strong tendency to ignore reasonable explanations for [Hypes'] actions . . . . Additionally, I find that her credibility is further undermined by her claim that she has been afraid of him since March 2004 but continued to socialize extensively with him. It seemed she greatly exaggerated in her own mind his unpleasantness as well as her reaction. I find it not credible that he forced his way into her house on July 14 and threatened her with bodily injury during an argument. I do not find that he made any threats to do [DeTrolio] bodily harm. I find [Hypes] to be credible when he testified that since the restraining order she has called him four times and gone to his home once and his job site once. These actions also undermines her allegation of fear of him.
I find that the parties continued to socialize frequently after the restraining order was dismissed. I find that the parties had an argument on July 13, 2005 that led [DeTrolio] not to want to see [Hypes]. I find that thereafter whenever she saw him even at places he was validly at, she had an extreme fear reaction. The issue before me under the Domestic Violence Act, N.J.S.A. 2C:25-17 to 35, is not [DeTrolio's] subjective fear, but whether any acts of domestic violence occurred.
Under the totality of the circumstances here a reasonable person in [DeTrolio's] circumstances would not have been in fear of bodily harm by [Hypes'] behavior. Moreover, I find that [Hypes] did not intend to cause a reasonable fear of bodily harm. Thus, [DeTrolio] has not demonstrated by a preponderance of the evidence [Hypes] committed the offense of stalking . . . .
The act was intended to protect regular serious abuse between partners. Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995). The Act should not be distorted or trivialized by using it to intervene where no danger exists merely to help a person manage an unruly relationship. The problem between the parties here amounts to domestic unpleasantness and as such is not covered by the Act. Therefore, the TRO must be dissolved and the complaint dismissed.
DeTrolio appeals contending that "the findings of facts and conclusions of law made by the judge were 'manifestly unsupported by the evidence' and 'inconsistent with the competent, relevant and reasonably credible evidence.'" We disagree, except with respect to the July 19 to 25, 2005 telephone calling incidents. DeTrolio's appeal is a challenge to the judge's fact-finding. However, "a trial court's findings of fact are binding on an appellate court if supported by adequate and credible evidence. Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "This is particularly so when, . . . the significant evidence is largely testimonial rather than documentary, and the trial court has had the opportunity to observe the witnesses and determine their credibility." Ibid. Therefore, when error in a fact-finding of a judge is alleged, the scope of appellate review is limited. The court will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. The court gives "due regard" to the ability of the factfinder to judge credibility. State v. Locurto, 157 N.J. 463, 470-71 (1999). It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Id. at 471. And where the trial court has made credibility determinations and the reasons for its determination may be inferred from the record, the Appellate Division is not free to make its own credibility determination. Id. at 472-75.
However, if findings are not supported by the record, an appellate court may "appraise the record as if we were deciding . . . at inception and make our own findings and conclusions."
Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div.), aff'd o.b., 78 N.J. 320 (1978).
Here, we conclude from our review of the record, that all of the judge's findings with three exceptions are supported by the proofs. We must give deference to the broad discretion, which is vested in the Family Part absent, of course, a clear abuse of that deference. See Martindell v. Martindell, 21 N.J. 341 (1956); Berkowitz v. Berkowitz, 55 N.J. 564 (1970). In Cesare v. Cesare, 154 N.J. 394 (1998), the Supreme Court discussed the scope of our review in a case involving a domestic violence finding by the Family Part. The Supreme Court stated:
Deference is especially appropriate "where the evidence is largely testimonial and involves questions of credibility." In re: Return of Weapons to JWD, 149 N.J. 108, 117 (1997). Because a trial court "hears the case, sees and observes the witness [and] hears them testify, it has a better perspective than a reviewing Court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961). Therefore, an Appellate Court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant, and reasonably credible evidence as to offend the interest of justice." [Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1971).] The Appellate Court should "exercise its original fact finding jurisdiction sparingly and in only but a clear case where there is no doubt about the matter." Ibid. 154 N.J. at 411-412. [Cesare v. Cesare, 154 N.J. 394 (1998).]
Accordingly, we give deference to the judge's finding that Hypes generally was more credible than DeTrolio.
However, we cannot sustain the judge's findings with respect to the telephone calls Hypes made to DeTrolio on July 20, indicating that "revenge is sweet", and to Rost and Giampietro on July 20 and 25 respectively, spreading disturbing rumors about DeTrolio. Those telephone calls, which Hypes did not deny and the judge found to be "the most troubling" and "most damaging" allegations against Hypes, do establish acts of domestic violence. We agree with the judge's credibility call but disagree with her finding that "there was not sufficient evidence provided to explain the caller, the nature of the calls, or the caller's intent." The record shows that Hypes did not deny making the telephone calls. Hypes conduct in those instances comes clearly within the proscription against "harassment" set by N.J.S.A. 2C:33-4a and c, which provide:
Harassment [A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person. [N.J.S.A. 2C:33-4]
However, a finding that an act of domestic violence has been committed by a party does not automatically mean that a restraining order must issue. N.J.S.A. 2C:25-29b provides that the judge may, not shall, issue a restraining order.
Accordingly, the October 7, 2005 order denying an FRO and dismissing DeTrolio's complaint is reversed with respect to the incidents of July 19 to 25, 2005 only. Hypes is adjudicated to have committed the domestic violence acts of harassment on those dates. The rest of the order, finding no acts of domestic violence on the remaining dates alleged in the complaint are affirmed. We remand the matter to the Chancery Division, Family Part, Essex County to reconsider whether the judge should issue an FRO after reviewing the acts of domestic violence committed by Hypes and the factors set forth in N.J.S.A. 2C:25-29b. In making this determination, the judge should review the entire matter, given the fact that there seems to be a series of ongoing events which reflect hostility and DeTrolio's desire to use the law when she wants to avoid or punish Hypes, but to avoid its enforcement when she wants to enjoy his company. The totality of circumstances should be considered in terms of issuing the FRO or its scope. Should the judge determine an FRO is warranted after examining the statutory factors and Hypes' acts of domestic violence, the judge shall enter an FRO ordering appropriate restraints against Hypes. We do not retain jurisdiction.
Affirmed in part and reversed in part.
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