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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...