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Ortiz v. Ortiz

July 24, 2007

MARIA ORTIZ, PLAINTIFF-RESPONDENT,
v.
FRANCISCO G. ORTIZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-673-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 3, 2007

Before Judges Parker and Seltzer.

Defendant Francisco G. Ortiz appeals from a final domestic violence restraining order entered on October 5, 2006. We reverse and vacate the final restraining order (FRO). The facts pertinent to this appeal are as follows. On October 1, 2006, plaintiff Maria Ortiz brought pizza home for her two children. Defendant, her husband, asked why she didn't get pizza for him, and she said she "didn't have money . . . for another pizza." Plaintiff testified that defendant "got very angry and irate, and [after she left the room] he threw the baby's game cube into . . . our entertainment center that had glass." When her son ran to tell her what happened, plaintiff called 9-1-1. While she was calling 9-1-1, defendant said, "[Y]es, go ahead, call them, go ahead, but things are going to get worse."

Defendant did not deny the allegations, but testified that after defendant told him she didn't buy any pizza for him, he "stepped on one of the kids' toy[s], and took it, and threw it . . . . [and] broke the glass."

Based upon that testimony, with no prior history of domestic violence, the trial court found:

I do observe that the . . . plaintiff is upset while she's . . . relating this detail to me. I also find that a final restraining order needs to be entered, not because she's upset, but because what she tells the court is essentially admitted by . . . the defendant.

And I find that [the] criminal mischief occurred in the breaking of . . . some glass, [which] was done intentionally. And I find that there was a threat, and that's the way she took it. Objectively, I find that she was correct in that she certainly had a basis for believing that it was a threat because of what had just happened, and which is essentially admitted . . . by the defendant. Terroristic threats. It's what the law calls a terroristic threat. It's a threat, and it's defined in our statutes, [N.J.S.A.] 2C:12-3.

I also find that criminal mischief occurred. By the way, there is no history given in the . . . complaint of prior domestic violence, but I am entering a . . . final restraining order in any event. The criminal mischief consisted [of] the breaking of the glass that belonged in the house. Criminal mischief is defined in [N.J.S.A.] 2C:17-3.

The court then proceeded to engage in lengthy colloquy with the parties regarding child support and the parties' respective incomes and expenses. The court then entered what is essentially an extensive pendente lite support order without the parties' having an opportunity to negotiate, submit appropriate documentation or make their arguments. Both parties appeared pro se.

In this appeal, defendant argues:

POINT ONE DEFENDANT'S WORDS, THAT BY CALLING THE POLICE "THINGS ARE GOING TO GET WORSE" FAIL TO CONSTITUTE A TERRORISTIC THREAT WHERE THERE WAS NO INQUIRY OF HOW THOSE WORDS WERE MEANT BY DEFENDANT OR INTERPRETED BY PLAINTIFF; NO OF DOMESTIC ...


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