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Pesce v. Stilton

December 11, 2007

JANET A. PESCE, PLAINTIFF-RESPONDENT,
v.
DONALD A. STILTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-425-98C. Donald A. Stilton, appellant pro se.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 9, 2007

Before Judges Gilroy and Baxter.

Defendant Donald A. Stilton appeals from the September 8, 2006, order of the Family Part that among other matters: 1) denied his motion for dissolution of the final restraining order (FRO) that was entered against him on July 31, 1998, pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff Janet A. Pesce; 2) denied his motion for free transcripts of the FRO hearing; 3) directed that he obtain leave of court before filing any further motions in the action; and 4) entered a judgment against him in the amount of $23,875 for failing to pay attorney fees and costs pursuant to prior court orders. We affirm in part; reverse in part; and remand the matter to the trial court for further proceedings consistent with this opinion.

Plaintiff and defendant commenced their relationship in June 1994, over the telephone, while defendant was incarcerated in a New Jersey state prison, serving a thirteen-year term of imprisonment on convictions of burglary, theft, and assault.*fn1 Following a three-year on-again/off-again dating relationship, plaintiff filed a domestic violence complaint against defendant on August 27, 1997. One child, B.P., was born of the relationship on July 10, 1997. A temporary restraining order (TRO) was entered the day the complaint was filed, granting plaintiff temporary custody of B.P. A ten-day final hearing was conducted between January 8, 1998 and February 4, 1998, during which the trial court heard testimony from twelve witnesses and considered over 175 exhibits. On the last day of the hearing, the trial court entered an order that, among other matters: 1) reserved decision on whether defendant had committed an act of domestic violence; 2) awarded plaintiff custody of B.P., pending further order of court; and 3) referred the issue of parenting time, both as to defendant and B.P.'s paternal grandparents, to the Preventive Dispute Resolution Unit of the Ocean County Family Part for an investigation and a report.

On July 31, 1998, Judge Fall rendered a twelve-page, single-spaced, written opinion in which he considered the exhibits introduced into evidence; analyzed and made credibility determinations concerning the witnesses' testimony; and concluded that defendant had committed the predicate act of harassment. In reaching his conclusion, Judge Fall stated:

The credible evidence discussed above supports plaintiff's domestic violence complaint based on harassment. The [c]court finds plaintiff, starting in January[] 1997, attempted to terminate her relationship with defendant, and he resisted. She was pregnant with defendant's child and was vulnerable, wavering occasionally under the almost constant pressure of his letters and telephone calls. However, by May[] 1997[,] it was clear the relationship was over and that plaintiff had made it very clear to defendant to stop calling and to stop writing and otherwise bothering her. He purposely persisted nevertheless, virtually daring plaintiff to seek a restraining order. It was made very clear to defendant that his actions were annoying plaintiff, were disturbing, irritating and bothersome. Yet, he nevertheless continued. He was unable to take no for [an] answer. He wa[s] attempting to wear her down, to make her do as he wished. Finally, when it was clear that no amount of pleading would stop defendant from annoying and bothering her, plaintiff filed the subject domestic violence complaint. Looking at the totality of the circumstances of this case and the history of threatening and abusive behavior, plaintiff's fears and desire to be left alone are justified. Defendant is a compulsive, relentless person. The [c]court is completely convinced he will never voluntarily leave plaintiff alone, but rather will continue to attempt to interface with her on a regular, if not daily basis. His reams of letters and inordinate amount of telephone calls to plaintiff, largely in the face of protests by plaintiff, conclusively demonstrate that conclusion. Many of his own letters during that period apologize for his behavior. He is a driven person, with an almost constant need to demonstrate he is right and anyone who disagrees with him is wrong. He embarks on a relentless examination of minutia to justify his conduct. By his own admission he has been diagnosed with psychiatric conditions that such conduct is symptomatic of. He testified Dr. Munoz . . .

[d]iagnosed him with a bi-polar disorder with obsessive characteristics. Defendant is a driven person, obsessed at getting what he wants. He has not hesitated to commit criminal acts in the past to satisfy his obsession. The past acts of control, and violence, by defendant towards plaintiff justify her fears. A Final Restraining Order is hereby entered.

Judge Fall also determined that the issue concerning defendant's visitation with his daughter would be re-listed upon his release from prison. A confirming order was entered the same day. On December 10, 1998, defendant was found guilty of violating the FRO.

In November 2000, after his release from prison, defendant filed a motion for visitation with B.P., consistent with the order of July 31, 1998. The motion was denied by order of January 18, 2001, the trial court determining that all conditions contained in the July 31, 1998, order, concerning defendant submitting to substance abuse, psychological and psychiatric evaluations, had not been complied with.

On May 17, 2001, defendant moved for supervised visitation with his daughter. On May 31, 2001, the trial court entered an order denying defendant's motion pending submission of a psychological evaluation pursuant to the order of July 31, 1998. "To that extent, the [c]court shall appoint a forensic psychologist with a background in custody evaluation cases to prepare an evaluation of the parties to determine the best interest of [B.P.] as it relates to visitation requested by defendant . . . ." On August 29, 2001, an order was entered granting defendant supervised visitation with his daughter at the Ocean County Courthouse, under the supervision of the Ocean County Supervised Visitation Program. During the first half of 2002, defendant exercised his right to supervised visitation with his daughter.

During the pendency of the visitation matter, defendant submitted to psychological evaluations by Dr. Ralph Fretz, a psychologist, on October 29, 2002, November 6, 2002, November 20, 2002, January 9, 2003, and March 12, 2003. In a report dated February 27, 2004, Dr. Fretz summarized his evaluations of defendant. Although Dr. Fretz opined that defendant "did not exceed the actuarial threshold for psychopathy," he did determine that there was a "moderate probability that [defendant] has an Anti-Social Personality Disorder. His probability is increased by his history of serious infractions*fn2 within the [State prisons]." Dr. Fretz submitted copies of his reports to Dr. Mark White, a psychologist retained by plaintiff.

Dr. White submitted a report dated September 19, 2003, in which he described the purpose of his evaluation as, "a risk assessment around the issue of introducing [B.P.'s] father, Donald Stilton, into a significant role in her life at this immediate stage in her development, and secondarily around the issue of the potential assets and liabilities of Mr. Stilton as a parent." After determining that defendant "cannot be considered a psychological parent to [B.P.]" because "[h]e virtually had no contact with her until she was approximately four years ...


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