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Santiago v. Castro

November 8, 2007

FRANKIE SANTIAGO, PLAINTIFF-RESPONDENT,
v.
MERLY CASTRO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Passaic County, FV-16-0762-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 16, 2007

Before Judges Fuentes and Chambers.

In this domestic violence case, defendant appeals from the final restraining order entered against her. She contends a single vague threat under the circumstances here cannot constitute domestic violence under the statute. We agree and reverse.

Plaintiff, Frankie Santiago, and defendant, Merly Castro, had a dating relationship for six years and had one daughter together who was three years old at the time of the hearing. Plaintiff ended the relationship in June, 2006, and compelled defendant to leave his home. Each filed a domestic violence complaint against the other. Specifically, on September 25, 2006, defendant filed a domestic violence complaint against plaintiff. She alleged that he had made harassing and threatening phone calls to her, and she obtained a temporary restraining order against plaintiff. On October 11, 2006, plaintiff filed a domestic violence complaint against defendant. He alleged that she had made terroristic threats to him, and he obtained a temporary restraining order against her.

A hearing was held on both complaints on November 9, 2006, and the court granted both applications, entering restraining orders against both parties. In addition, the trial court addressed support and visitation issues, and those provisions have not been appealed. Further, plaintiff has not appealed from the restraining order entered against him. As a result, this appeal focuses solely on the restraining order entered in favor of plaintiff and against defendant.

The scope of our review is limited. Cesare v. Cesare, 154 N.J. 394, 412 (1998). The trial court's findings are binding upon us provided they are supported by "adequate, substantial, credible evidence." Ibid. "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 394, 484 (1974)).

The Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, sets forth a mechanism whereby victims of domestic violence may obtain domestic violence restraining orders against the wrongdoers, among other relief. N.J.S.A. 2C:25-29. Since plaintiff and defendant formerly resided together, they both are entitled to the protections of the act. N.J.S.A. 2C:25-19(d). In an application for a domestic violence restraining order, a plaintiff must establish by a preponderance of the evidence that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred, and that a domestic violence restraining order is necessary in order to protect the plaintiff from immediate danger or to prevent further abuse. Silver v. Silver, 387 N.J. Super. 112, 125-127 (App. Div. 2006).

Here plaintiff obtained a restraining order against the defendant on the basis that she had threatened him in a telephone call. He testified that on October 10, 2006, he received a call in which defendant said "my boyfriend is going to get you." He testified that he was fearful due to that call. While he stated in a general way that defendant had harassed him after they separated and that she had threatened to make unfounded domestic violence complaints when they were together, the record is devoid of any contention or evidence that defendant had ever physically struck or threatened plaintiff with violence. Indeed, the record indicates instances where plaintiff had struck defendant.

An act of "domestic violence" includes the making of terroristic threats as set forth in N.J.S.A. 2C, 12-3, against a person protected by the act. N.J.S.A. 2C:25-19(a)(3). A terroristic threat is defined as:

a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience. . . .

b. A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of ...


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