October 22, 2007
SANDRA PEREIRA, PLAINTIFF-RESPONDENT,
GEORGE BOGHOSSIAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-02397-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Before Judges S. L. Reisner and Gilroy.
Defendant George Boghossian appeals from the June 30, 2006, final restraining order (FRO), entered in favor of plaintiff Sandra Pereira, his daughter,*fn1 pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. We affirm.
Following a contested divorce, defendant filed for grandparent visitation with his five-year-old granddaughter, the daughter of plaintiff and her husband. On July 1, 2005, Judge Torack entered an order denying grandparent visitation, determining that defendant had failed to establish that visitation was necessary in order to avoid harm to the child. Defendant appealed, and we affirmed. Boghossian v. Pereira, No. A-0661-04 (App. Div. March 24, 2006).
Between the Law Division order and our opinion, defendant harassed plaintiff by staring at her home while sitting in an automobile outside the residence, causing plaintiff to move to an undisclosed location, together with her husband and daughter. Immediately following our decision, defendant's attorney forwarded a letter to plaintiff, demanding repayment of an alleged loan of $52,000. On April 11, 2006, plaintiff's attorney responded by letter to defendant directing that he cease all contact with plaintiff and her family. Because defendant continued to send unsolicited written communications to his granddaughter, one containing memorabilia belonging to plaintiff when she was a child, plaintiff filed a domestic violence complaint against defendant alleging harassment. A temporary restraining order was entered on May 16, 2006.
A plenary hearing was conducted on five non-consecutive days, between June 12, 2006, and June 30, 2006. Testifying on behalf of plaintiff were plaintiff and Maria Boghossian, plaintiff's mother and former wife of defendant. The only other witness to testify at the hearing was defendant. On June 30, 2006, Judge Jerejian, after determining the testimony of plaintiff and her mother credible and the testimony of defendant not credible, rendered an oral decision determining that defendant had committed an act of domestic violence, that is, the predicate act of harassment, N.J.S.A. 2C:33-4c.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such 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). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision below.
One violates the harassment statute, N.J.S.A. 2C:33-4c, when "a person[,] . . . 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." Integral to finding harassment constituting domestic violence is a "purpose to harass" by "'a course of alarming conduct' or repeated acts intended to alarm or seriously annoy another." Corrente v. Corrente, 281 N.J. Super 243, 249 (App. Div. 1995) (quoting Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988)). In determining whether a party's actions constitute domestic violence, the statute requires that a trial judge's consideration include factors such as any previous history of domestic violence between the parties, including any threats, harassment, and physical abuse, and the existence of any immediate danger to person or property. N.J.S.A. 2C:25-29a(1) and (2). Simply stated, "courts must consider the totality of the circumstances to determine whether the harassment statute has been violated." Cesare, supra, 154 N.J. at 404. However, "a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation." Id. at 402.
Moreover, "'[a] finding of a purpose to harass may be inferred from the evidence presented' and from common sense and experience." H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) (quoting State v. Hoffman, 149 N.J. 564, 577 (1997)). "The alternative requirement that defendant's purpose was to alarm plaintiff requires proof of anxiety or distress." Ibid. "The serious annoyance requirement 'under Subsection (c) means to weary, worry, trouble, or offend.'" Ibid. (quoting Hoffmann, supra, 149 N.J. at 581). Determining whether the acts were committed "with the purpose to . . . seriously annoy," N.J.S.A. 2C:33-4c, is fact sensitive. Ibid.
On appeal, defendant argues that the trial judge "improperly applied the rule of the case doctrine." Defendant contends that the trial judge improperly considered the findings of Judge Torack in the prior grandparent visitation proceeding. Defendant contends that the trial judge was unduly influenced by Judge Torack's determinations. We disagree.
We have carefully considered defendant's argument in light of the record and the applicable law. We conclude that his contentions are without merit and do not warrant extended discussion in a full, written opinion. We affirm substantially for the reasons expressed by Judge Jerejian in his oral opinion of June 30, 2006. R. 2:11-3(e)(1)(A) and (E). The judge's finding was supported by substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Nevertheless, we add the following comment.
Contrary to defendant's assertion, Judge Jerejian did not adopt Judge Torack's findings of fact from the grandparent visitation case as his own when he concluded that defendant committed an act of domestic violence. The trial judge made his own independent findings of fact. "I [am] very sensitive to making independent findings because I think that everybody should have a fair hearing and their day in court. I [do not] want to be tied by what Judge Torack says or [what] he thinks." In rendering his opinion, the trial judge merely stated that after making his own independent findings of fact he reached the same conclusion as Judge Torack "that there is a history here of domestic violence."
Although we disagree with the judge's determination that Judge Torack's decision prohibited defendant from sending letters to his granddaughter, we agree with the judge's conclusion that the letters sent by defendant, containing memorabilia belonging to plaintiff when she was a child, was sent for the purpose of "seriously annoying" plaintiff and formed the predicate act supporting the FRO.