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Molinaro-Zolfo v. Zolfo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 12, 2007

KIM MOLINARO-ZOLFO, PLAINTIFF-RESPONDENT,
v.
NICHOLAS J. ZOLFO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FV-12-002200-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 26, 2007

Before Judges Parker and Seltzer.

Defendant appeals from the entry of a final restraining order pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm.

Plaintiff testified that she and defendant were married but separated and engaged in a contested matrimonial action when the incident giving rise to this appeal occurred. Defendant was in the pest control business and stored pesticides in the former marital home. On April 16, 17, or 19, 2006,*fn1 defendant came to plaintiff's home and engaged her in a conversation respecting an email he had discovered, which he believed confirmed plaintiff's extramarital affair. Plaintiff testified that defendant refused to allow her to leave when she indicated her desire to break off the conversation. She claimed that "[h]e wouldn't let me go in the house. He was pulling on my arm. He's like please, he was trying to pull me onto his lap, while he was sitting on the stoop, and he was crying." She also asserted that defendant twisted her arm to take possession of the email.

According to plaintiff, that incident had been preceded by one occurring several weeks before. On that occasion, defendant confronted her after she had picked up their children from day care. He prevented her from leaving and knocked her cell phone out of her hands when she attempted to dial 9-1-1. She also testified "that she believed [defendant] was leaving notes on her car . . . . and [had] been driving past her home." Defendant testified and denied the allegations.

In her complaint plaintiff alleged assault, N.J.S.A. 2C:12-1; stalking, N.J.S.A. 2C:12-10; and harassment, N.J.S.A. 2C:33- 4, as predicate acts for a finding of domestic violence. Although the judge "found the plaintiff to be more credible in her recitation of events than the defendant," he declined to find that defendant had committed the offenses of stalking or assault because plaintiff failed to carry her burden of proof on those allegations.*fn2

The judge then considered the allegations of harassment, noting plaintiff's obligation, under N.J.S.A. 2C:33-4(c), to prove defendant acted with a "conscious . . . purpose to harass." He found "based on all of the above, looking at the definitions of harassment and all the testimony that I've heard, . . . that the plaintiff was a victim of domestic violence. The specific act of domestic violence was harassment. I believe the defendant was keeping tabs on her. . . ."

On appeal, defendant contends that the judge's findings were insufficiently supported by the record and that, even if accepted, the acts alleged would not rise to the level of alarming conduct sufficient to constitute harassment. We disagree. Our review of a judgment entered in a bench trial is limited. "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). This is particularly so in family matters where judges have been specially trained in these matters. Id. at 413. We have no basis to disturb the judge's factual determinations.

We also reject defendant's claim that his conduct, as found by the trial judge, did not constitute a course of alarming conduct. We are satisfied that defendant's conduct of driving past plaintiff's home and "keeping tabs on her," continually challenging her with respect to her conduct during the marriage,*fn3 limiting her movements, and appearing uninvited at both her home and the day care center is sufficiently serious to justify the conclusion that this course of conduct was alarming. See Corrente v. Corrente, 281 N.J. Super. 243, 246 (App. Div. 1995) (noting that "[d]omestic violence is a term of art which describes a pattern of abusive and controlling behavior which injures its victim.").

Finally, we reject defendant's claim that the judge failed adequately to describe (a) the section of the harassment statute found to have been violated; (b) the course of conduct in which defendant engaged; or (c) the intent with which defendant acted. The judge provided a detailed description of the conduct he found in violation of N.J.S.A. 2C:33-4(c).

Affirmed.


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