January 4, 2008
BRENDA BURRUS, PLAINTIFF-RESPONDENT,
WALTER SAWYER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FV-20-000838-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges A. A. Rodríguez and C. S. Fisher.
Walter Sawyer appeals from the November 9, 2006 final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Following a hearing, at which both parties appeared pro se, the judge found that Sawyer committed an act of harassment, contrary to N.J.S.A. 2C:33-4, against complainant Brenda Burrus. We affirm. These are the salient facts. Sawyer and Burrus have had an on/off dating relationship for many years. According to Burrus, she has been trying to end the relationship for the three years prior to the incident that gave rise to this complaint. On November 2, 2006, Sawyer was at a bar. He saw Burrus entering the same establishment. Just before Sawyer left the bar, he purchased a sandwich for Burrus, which she accepted. Sawyer left the bar and went to play golf.
From this point, the parties' versions differ. Burrus testified that on November 2, 2006, after leaving the bar, she noticed two cell phone messages from Sawyer. Both of the messages "weren't very nice." The messages expressed Sawyer's feeling "that I wasn't appreciative of the flowers he had sent me." In the messages, Sawyer called her a "bitch."
According to Burrus:
So I got angry. I mean, I went home. And well, I tried to call him from the cell phone in the car. And when I did, I didn't get an answer. So when I went home, I tried to call him back and I still didn't get an answer. So I called the house, which I never call his house. So his girlfriend answered the phone, which I thought was his girlfriend.
And she answers the phone and I told her to please ask him to leave me alone, I just want my life back, that for the last three years, I've been -- I've been just trying to go on with my life.
And then -- I was angry. And I was yelling and I was screaming. I wasn't angry at her. I didn't direct my conversation to her. It was anger towards him.
So I believe I called the house twice. . . .
Or maybe four times. I don't know. I was just very angry. So then I had told him I was going to come over the house. So I grabbed the flowers. And I left the house. And I went to his house. And I tossed the flowers in his driveway.
And I was getting back in my car. And as I was getting back in my car, he comes out the house. And I got in the car and I drove away. I left the house and I went -- and instead of making a right turn to go home -- no, I did make a right turn. I went down about two blocks. And then I made another right turn. Because I noticed he was following me. So I was trying to get away from him and I ended up on a dead-end street.
He pulled the car up like he was a police officer, call himself, blocking me. I made a U-turn, went a little bit on the sidewalk. Came out. Rolled the window down. I said, what are you going to do now, beat my butt. And he says no. So I rolled the window up.
And instead of going home, which I knew he was going to the house cause he was angry, I said let me go to his house. I made the left and I went to his house.
So I rang the doorbell. And the young lady answered the phone. She's in a wheelchair. And I said, hi, Carolyn, my name is Brenda. I says, and I -- I said, first of all, I'd like to apologize for any problems I may have caused you. I said, but the only thing I need right now is to get my life back. I've been trying to get rid of him for three years and I just can't get rid of him. He keeps calling me. I said, and the only reason why I came over here tonight was to -- was to toss those flowers that he bought me in the driveway. She says, oh, he bought you flowers. I said, yes, he did.
And so then I proceeded to just tell her that I had been with him seven years, and out of the seven, I've been trying to get away. . . .
So, I mean, you know, I'm having the conversation with her. I gave her a hug and then I stood up.
The next thing I know, he comes pulling up into the driveway. He snatches me by my neck, grabs me by my neck and he flings me out of the house. And he says, get the fuck out of my house. I don't ever want you in my house. And then she's screaming at him and she's telling him, Walter, Walter, leave her alone, she didn't do -- you know, she didn't do anything, leave her, what are you doing.
And then he turns around and tells her that I'm crazy, that my kids don't love me, my, you know, family don't love me. . . .
Then Burrus returned to her home. Burrus decided to go to the precinct. However, Sawyer came to Burrus's house, banged on the window and got back in his car and drove away. Then he called Burrus on the cell phone. Burrus alleged that at Sawyer's driveway, he "grabbed her around the neck and choked her and threatened to kill her, putting [her] in fear for her safety." Burrus contacted the police. She obtained a temporary restraining order (TRO). The following day, the Plainfield Police Department seized a handgun and a New Jersey State firearms purchase identification card from Sawyer's residence pursuant to the TRO. According to Sawyer, while playing golf, he received numerous telephone calls from Burrus on his cell phone. He did not answer the cell phone. Later, he listened to his voice mail. There were several calls from Burrus. Sawyer concluded that she was intoxicated.
When Sawyer returned to his residence in South Plainfield, Burrus was in her vehicle parked in his driveway. Burrus exited her vehicle and threw a flower pot that he had sent her weeks earlier on the ground. Burrus approached Sawyer's house in a belligerent manner. Sawyer took Burrus by the arm and escorted her to her vehicle. Burrus left the premises.
On appeal, Sawyer contends that:
THE COURT ERRED IN DETERMINING THAT BURRUS WAS A PROTECTED PERSON UNDER THE DOMESTIC VIOLENCE ACT BY ERRONEOUSLY ASSUMING THAT THERE WAS A PRIOR DATING RELATIONSHIP BETWEEN THE PARTIES. THE TRIAL COURT ERRED IN DETERMINING THAT SAWYER COMMITTED AN ACT OF DOMESTIC VIOLENCE ON THE THEORY OF HARASSMENT.
Sawyer's appeal is a challenge to the judge's fact-finding. However, "[a] trial court's findings of fact are binding on an appellate court if supported by adequate and credible evidence. Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "This is particularly so when, . . . the significant evidence is largely testimonial rather than documentary, and the trial court has had the opportunity to observe the witnesses and determine their credibility." Ibid. The court gives due regard to the ability of the fact-finder to judge credibility. State v. Locurto, 157 N.J. 463, 470-71 (1999). Therefore, when error in a judge's fact-finding is alleged, the scope of appellate review is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The court will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proofs as a whole. Ibid. It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Locurto, supra, 157 N.J. at 471. We must give deference to the broad discretion vested in the Family Part absent, of course, a clear abuse of that deference. See Berkowitz v. Berkowitz, 55 N.J. 564 (1970); Martindell v. Martindell, 21 N.J. 341 (1956). In Cesare v. Cesare, 154 N.J. 394, 412-13 (1998), the Supreme Court noted that Family Part judges possess special expertise in family matters, and we accord deference to their findings. Here, we conclude from our review of the record, that all of the judge's findings are supported by the proofs. Burrus testified that although she never lived with Sawyer, they had a dating relationship spanning several years. This evidence, which the judge credited, establishes Burrus's status as a "victim of domestic violence." N.J.S.A. 2C:25-19a and d. Moreover, the record shows that Sawyer's conduct on November 2, 2006 comes clearly within the proscription against "harassment" set by N.J.S.A. 2C:33-4a and c, which provide:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Once again, the judge credited Burrus's testimony that Sawyer: called her a bitch; grabbed her around the neck; choked her; and threatened her life. This constitutes harassment. Sawyer also contends that:
IN THE EVENT THE COURT AFFIRMS THE [FRO], THE FIREARM AND FIREARMS IDENTIFICATION CARD SHOULD BE RETURNED TO SAWYER BASED UPON THE TRIAL COURT'S FAILURE TO DEMONSTRATE THAT SAWYER WAS UNFIT OR POSED A THREAT TO THE PUBLIC IN GENERAL OR A PERSON OR PERSONS IN PARTICULAR.
It is beyond our jurisdiction to order the relief requested. Sawyer's remedy for the return of the weapon and firearm purchase identification card is to file a separate action pursuant to N.J.S.A. 2C:58-1 to -18.
Accordingly, the November 2, 2006 order granting an FRO is affirmed.
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