August 28, 2007
DIVYA GUPTA, PLAINTIFF-RESPONDENT,
ARTHUR BERKOVITZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FV-02-502-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2007
Before Judges Lisa and Holston, Jr.
Defendant, Arthur Berkovitz, appeals from a final restraining order entered under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff, Divya Gupta. Defendant argues that the order was improperly entered because the evidence failed to support the judge's finding of an act of harassment or an intent to harass. We reject this argument and affirm.
The parties had a dating relationship for about one month leading up to August 12, 2006, the date on which the events began that formed the basis of the complaint. On August 12, 2006, the parties went to a club in New York. They argued. Plaintiff suggested she would not leave with him but would go home with friends who were at the club. Defendant grabbed her by the arm and insisted she stay with him. Ultimately, she did so, going back to his apartment in Brooklyn and spending the night. The next day, defendant drove plaintiff to her home in New Jersey, where she lives with her parents.
Plaintiff decided she wanted to discontinue the relationship with defendant. The parties had an uneventful telephone conversation during the day of August 14, 2006. That evening, however, defendant called plaintiff again. By that time, she had decided to tell defendant she wanted to end the relationship, and she told him she did not want anything to do with him and he should not call her anymore. Defendant continued calling multiple times that night. A friend was with plaintiff and repeatedly answered the phone telling defendant to stop calling and that plaintiff would not speak to him. Finally, plaintiff called defendant, telling him if he did not stop calling she would go to the police. He continued to call, and she and her friend went to the Linden police station. This was at 1:00 a.m. While there, defendant called plaintiff three times on her cell phone.
In the next day or two, plaintiff learned that defendant called her college professor and accused her of plagiarizing a paper. According to plaintiff, defendant helped her with the paper. According to defendant, he gave plaintiff a paper he had previously written and she turned it in to her professor as if it was her own. But the point is that, without dispute, defendant called her professor and made the accusation. This caused plaintiff much consternation. She feared she would be brought up on charges and possibly expelled from school. Further, that professor was going to give her a favorable recommendation for graduate school, which she now refused to do.
Plaintiff also learned that defendant called her parents and told them she was an alcoholic and drug abuser. This caused much upset in the family for both plaintiff and her parents.
Plaintiff called defendant and wanted to talk to him to straighten these matters out. They met on August 17, 2006 and talked for a couple of hours. During the conversation, when she asked defendant why he made the accusation to the professor, defendant said "he wanted to get back at me for using him."
Plaintiff received a call from a friend of defendant's telling her defendant was going to contact the professor and straighten that situation out. As a result, on August 18, 2006, plaintiff called defendant because she "wanted to make sure that he took care of it." During that conversation, defendant said he had been to plaintiff's home when she was not there and left a letter and money in the mailbox. Plaintiff produced the letter in court and said it contained $300. In the letter, defendant said he was giving her this money or lending it to her to pay her tutor. Plaintiff did not want the money and when she went to sign the domestic violence complaint, attempted to give it to the police, but they would not accept it.
Defendant testified. He said the reason for his repeated calls on August 14, 2006 was that his initial conversation with plaintiff was cut off abruptly, and when he called back an unidentified man answered the phone telling him not to call anymore and that plaintiff did not wish to speak to him. He said he continued calling because he was concerned about plaintiff's well-being. Defendant acknowledged that he later spoke to plaintiff at about 1:00 a.m. and she told him not to call again.
Defendant acknowledged telling plaintiff that he "told the professor that she had copied my papers and handed them in as her own." When asked what his purpose was in calling the professor, defendant said, "I used to be a teacher. I don't like things plagiarized." He denied he did it to "get even" with plaintiff.
Defendant admitted calling plaintiff's mother and telling her "she appears to have a drinking problem." He said his purpose was to get her help which he believed she needed.
Judge Parsons found plaintiff's testimony credible and defendant's incredible. He made these findings:
The phone calls prior to her current guy saying, don't call again. Maybe I would have given him the benefit of the doubt.
The phone call to the professor, even though he wants me to believe that he's on some kind of an ex-honor program, like at West Point, sounds to me like get even time, because of unrequited love.
I'm not saying she's perfect. And she probably egged him on and confused him, and then, ultimately, let him down real hard. And, I interpret the phone call to the professor as get even time. I interpret that to be a form of harassment by making a -- I don't know whether he identified himself or not, so I'm not going to say an anonymous call, but he certainly identified who she was.
So, in any event, that call was intended, in my opinion, with the purpose to harass her. To get her in trouble. Annoyed her.
The phone call to her parents, I don't buy it.
Mr. Good Guy.
I mean, when she's drunk other nights, he takes her back to his apartment. Not that they did anything.
This concern, out of the blue, I find very unconvincing.
I don't find his story credible. I think she caused her own problem. I'm not saying, she's Miss Goody Two Shoes.
But, you're here today because she has alleged harassment and assault.
I've already dismissed the assault. And just because I dismissed the assault, doesn't mean you won one now you're gonna lose one. I dismissed the assault because I didn't think it was an assault.
I think his conduct rises to the level of harassment. And I think it rises to the level of harassment as a result of being, basically, told to take a walk after, apparently, they were someone [sic] emotionally involved.
That is domestic violence.
They had a dating relationship. He calls the professor. He calls her parents. And he calls her incessantly. Her new guy on the block tells him to stop calling and he keeps call[ing]. And then, I find out there's another phone call at one o'clock in the morning, which is an odd hour, if one wants to interpret the Harassment Statute.
I don't believe him.
I believe his conduct was intended to harass her.
A person is guilty of harassment who, "with purpose to harass another, . . . [e]ngages 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:33-4c. In the context of a domestic violence case, in addition to considering the discrete elements of the predicate offense, the court must also consider additional factors. These include the existence of immediate danger to the victim and the best interests of the victim. Cesare v. Cesare, 154 N.J. 394, 401 (1998); N.J.S.A. 2C:25-29a(2) and (4). The core purpose of the Act "effectuates the notion that the victim of domestic violence is entitled to be left alone. To be left alone is, in essence, the basic protection the law seeks to assure these victims." State v. Hoffman, 149 N.J. 564, 584 (1997).
We will not interfere with a trial judge's findings of fact 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." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Further, the findings and conclusions of a trial judge are entitled to enhanced deference in family court matters, given the special jurisdiction and expertise of family court judges in such matters. Cesare, supra, 154 N.J. at 413.
Applying these principles, we have no occasion to interfere with the findings and conclusions made in this case. The judge found that defendant's conduct went "beyond the pale," and that there was on plaintiff's part "a reasonable fear and she is entitled to the protection of the Domestic Violence Statute." The record well supports the judge's conclusion that defendant's course of conduct over the several days constituted harassment and that a final restraining order was appropriate and necessary to protect plaintiff's health and well-being.
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