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Driscoll v. Puchol

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 11, 2008

LAURA DRISCOLL, PLAINTIFF-RESPONDENT,
v.
DENISE PUCHOL, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1426-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 11, 2007

Before Judges Skillman and Yannotti.

Defendant Denise Puchol appeals from a final restraining order entered in favor of plaintiff Laura Driscoll on March 20, 2007, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. For the reasons that follow, we affirm.

On March 1, 2007, plaintiff filed a complaint in the Family Part in which she alleged that on that date, defendant had committed an act of domestic violence. Plaintiff alleged that the house alarm "went off" and the police found defendant laying down, hiding from view, in a car parked nearby. Plaintiff further alleged that defendant had subjected her to other acts of domestic violence, including harassment, threats, a prior break-in at plaintiff's residence, and the taking of property from plaintiff's home.

The judge entered a temporary restraining order on March 1, 2007, which barred defendant from returning to plaintiff's home and also enjoined her from visiting plaintiff's minor children, L.D. and J.D. On March 20 and 23, 2007, Judge Honora O'Brien Kilgallen conducted a hearing on plaintiff's application for a final restraining order.

Plaintiff and defendant began what defendant describes as an "intimate relationship" sometime in March 1996. On May 25, 2001, plaintiff gave birth to L.D. and in May 2003, defendant moved into plaintiff's home. Plaintiff gave birth to J.D. on June 14, 2005. It appears that beginning sometime in 2005, the parties' relationship soured.

According to plaintiff, on Christmas Eve, defendant drank too much at a dinner at a friend's home and passed out on a couch. The following day, plaintiff told defendant that she would like her to leave the house. However, defendant continued to live in plaintiff's home. On May 10, 2006, the parties had an argument and plaintiff told defendant to leave. The police were called and they moved defendant out of the house that evening.

Plaintiff testified that in June 2006, her home was burglarized. She said that she was at work and received a call on her cell phone from a person who is a mutual friend of the parties. The individual told plaintiff that she had just received a call from plaintiff's home phone but the caller had hung up. Plaintiff's friend said that she called plaintiff's home phone number but there was no answer. Plaintiff told her friend that she did not know what she was talking about. When plaintiff returned home, she found that certain legal papers relating to a lawsuit involving defendant had been taken, along with about $500 in cash that she kept in a drawer.

On July 20, 2006, defendant filed an action in the Family Part in which she alleged that she was the psychological parent of plaintiff's two children and was entitled to joint legal custody and visitation. The parties subsequently agreed to the terms of a consent order that was entered by the Family Part on September 14, 2006, which granted defendant limited visitation with the children and included certain restraints. The parties thereafter agreed to the terms of a final consent order, which was entered by the court on December 19, 2006.

The December 19, 2006 order stated that defendant would have visitation with the children in accordance with a specified schedule; however, visitation was subject to certain conditions, including the requirement that "neither party shall stalk or harass the other." In addition, the order provided, among other things, that neither party may: attempt to contact or speak to the other, except to discuss the visitation schedule, the children and the children's welfare; or drive past the other party's residence unless defendant is picking up or discharging the children on visitation dates and such pick-ups must be made "at the bottom of [plaintiff's] driveway." The consent order further stated that neither party may trespass upon the property of the other party, "including but not limited to coming to [plaintiff's] front door or around to the back of [plaintiff's] property." The parties also agreed to waive their respective claims, including defendant's claim for psychological parentage.

Plaintiff testified that after the consent order was entered by the court, things "seemed to settle down" although occasionally, defendant would drive by plaintiff's home. Plaintiff said that on February 17, 2007, someone entered her automobile and stole her computer. Plaintiff stated that the car had been locked and parked in her driveway. The lock was not broken and the car had not been damaged. Plaintiff said that previously, defendant had use of that car. Plaintiff stated that at the time of the break-in, she discovered that someone had inserted a piece of chocolate in the fuel tank.

Plaintiff additionally stated that she was working late on February 22, 2007, and received a call from her security service informing her that the house alarm had gone off. Plaintiff contacted the police and they secured the area. When plaintiff returned home, she saw that someone had entered the garage through a door that had not been locked or secured. Plaintiff said that various items in the garage had been "knocked over."

Plaintiff further testified that on March 1, 2007, at approximately one o'clock in the morning, she and the children were sleeping when the house alarm went off. Plaintiff ran downstairs. The security service called to inform plaintiff that the alarm had been activated. Plaintiff looked out the front window and observed someone running down the driveway away from the house. She asked the security service to contact the police. Plaintiff could not identify the person she saw running from the house.

A police officer responded to the scene. The officer saw a car parked near the house. The officer illuminated the interior of the car with his flashlight, and saw defendant laying down in the car. Plaintiff saw defendant sit up. The officer asked defendant to get out of the car and instructed plaintiff to go back into the house. According to plaintiff, defendant did not have any reason to be in front of her home at one o'clock in the morning of March 1, 2007.

Plaintiff added that, since the break-in on March 1, 2007, she had moved out of her residence and had been living in three other places. She said that she was terrified of defendant and did not want to return to her home. Plaintiff also was concerned about the children. She removed L.D. from his school and placed him in a different school. She said that it was her intention to sell her house because she did not feel safe there.

Officer Fred Faulhaber, Jr. of the Neptune Township Police Department (NTPD) testified that he was on duty on March 1, 2007 and he responded to plaintiff's home at about 1:00 a.m. because an alarm went off at the residence. Faulhaber stated that the alarm was coming from the rear entrance door between the garage and the kitchen.

Faulhaber spoke with plaintiff and then went to look for the person who may have run from the house. Faulhaber located a vehicle parked across the street. He approached the car with a flashlight and he could see someone laying across from the driver's seat onto the passenger's side seat in the front of the vehicle. Faulhaber said that defendant was inside the car, "crouched down across the seats, as if to hide."

Faulhaber knocked on the window, drew his weapon, and ordered defendant out of the car. He testified that, as she was exiting the car, defendant stated that she did not do anything and she did not try to break into the house. Faulhaber said that he thought defendant's statements were odd because, when he asked defendant to exit the vehicle, he did not tell her his reasons for doing so.

Faulhaber called for the assistance of other police officers, and they responded to the scene. The other officers remained with defendant while Faulhaber spoke with plaintiff. She informed him about the restraining order. Faulhaber determined that defendant violated the order because she had trespassed upon plaintiff's property and drove past plaintiff's residence. Defendant was arrested and charged with contempt of a court order. Defendant was subsequently charged with burglary because Faulhaber believed that she had entered plaintiff's garage and attempted to get into the house through the door leading from the garage.

Detective Michael D'Amico of the NTPD testified that he was assigned to investigate the burglary at plaintiff's residence that occurred on June 23, 2006. D'Amico stated that court papers relating to plaintiff's separation from defendant and $500 in cash were missing. He said that there were no signs of a forced entry. D'Amico concluded that a person entered the home with a key or some other type of unknown object. The detective questioned defendant and she denied any knowledge of the incident. However, according to D'Amico, defendant admitted driving by plaintiff's home on the date of the burglary. Defendant told D'Amico that she had been visiting a friend.

Officer Christine Clark of the NTPD testified that she investigated the incident involving plaintiff's car. The officer stated that there was no damage to the vehicle, although a computer had been removed from the car and a chocolate bar "stuffed" into the gas tank. On cross-examination, Clark admitted that defendant had not been charged with breaking into plaintiff's car.

Defendant gave her account of the events of March 1, 2007. She stated that she was in plaintiff's neighborhood because she used to live there and still had "a number of good friends" in that area. Defendant said that she was looking after a friend's home a few blocks from plaintiff's residence while her friend was away. She also had been refinishing some furniture for her friend. Defendant asserted that in the morning hours of March 1, 2007, she was under the influence of certain prescription medications. She claimed that her medications were new and she had a negative reaction to them, causing her to "feel very strange, [and] kind of spacey."

Defendant testified that she dozed off on the couch in her friend's home and woke up around 12 or 12:30 a.m. She had no intention of staying over. Defendant got up and began to drive to her home in Ocean Grove. She drove by plaintiff's house and realized that she had forgotten her glasses. Defendant saw that there were lights on in plaintiff's home. She said that she was tired and she was debating in her mind as to whether she should go back to her friend's house to get her glasses. According to defendant, at that point, the police officer banged on the window and told her to get out of the car.

Defendant said that in June 2006, she charged plaintiff with physical assault. She said that she was contacted by Detective D'Amico and asked about a burglary that he was investigating. Defendant said that she was never charged with any offense regarding that incident. Defendant stated that she had never been contacted by the police with regard to the incident involving plaintiff's car. Defendant also said that she had no knowledge about the incident of February 22, 2007, when the alarm went off at plaintiff's home, and she was never questioned by the police concerning that matter.

On cross examination, defendant conceded that in the early morning hours of March 1, 2007, she did not have to drive by plaintiff's residence in order to return to her home. Defendant said that she had been prescribed anti-depressants but she had not been diagnosed with any particular medical condition. The medication had been prescribed in late May or early June, 2006, after plaintiff had assaulted her and threw her out of the house. Defendant was asked whether she had been sleeping in the car. Defendant said that she was "sleepy" and may have been "dozing." Defendant denied saying to the officer that she did not try to break into plaintiff's house.

Judge Kilgallen placed her decision on the record on March 23, 2007. She concluded that defendant's version of the incident on March 1, 2007 was not credible. She commented that defendant's story was "so unbelievable" that she did not "find any of it to be true." The judge found that defendant knew that the consent order entered on December 19, 2006, barred her from stalking or harassing plaintiff, and provided that she could not trespass upon plaintiff's property. The judge determined that, contrary to the terms of the consent order, defendant went onto plaintiff's property. The judge stated:

I find that at 1 a.m. the defendant intended to go over to the plaintiff's house. And she intended to gain entry into the plaintiff's house. And when she heard the alarm go off, she ran away. And I find that she got in her car and she put herself down across the seat so that she wouldn't be seen. And then when the flashlight was flashed into her car, the plaintiff witnessed her sitting up in her car. And the plaintiff testified that that is so. And I find that that is so.

The judge additionally found that this incident was not the only incident of harassment, burglary, or stalking-type behavior that defendant had engaged in. The judge found that on February 22, 2007, defendant went to plaintiff's home, tried to gain entry to the house, which set the alarm off, and prompted the security company to call plaintiff. The judge also determined that on February 17, 2007, defendant used her key to gain entry to plaintiff's car. She opened the gas tank lid and put a chocolate bar in the fuel tank, in an attempt to disable the car.

The judge further found that on June 23, 2006, defendant had driven past plaintiff's home, entered plaintiff's home, and taken plaintiff's property. The judge stated:

Indeed, a call was placed to a mutual friend with the plaintiff's home phone number showing up. And the mutual friend contacted the plaintiff and said, I just gat a call from your house. And then I called back and there was no answer. The only one who could have gotten into the house on that date was the defendant.

So again I find that it was more likely than not that it was the defendant who gained entry into that house. It was the defendant who took cash, hidden in a drawer that was known to be cash where there was also jewelry. The jewelry wasn't taken, just the cash was. And certain important personal papers were removed. I find it was the defendant who took those things and did those things.

The judge therefore determined that defendant had committed acts of domestic violence as defined in N.J.S.A. 2C:25-19, specifically harassment, criminal trespass, and burglary. The judge entered an order that enjoins defendant from committing further acts of domestic violence; bars her from plaintiff's residence and place of employment; bars her from the residences of plaintiff's friend and parents; and also precludes defendant from any further contact with plaintiff's children. The order additionally enjoins defendant from making or causing anyone to make harassing communications with plaintiff or other named persons; and from stalking, following, or threatening to harm plaintiff or the other named persons. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I: THE COMPLAINT/TEMPORARY RESTRAINING ORDER VIOLATES DUE PROCESS BECAUSE IT DID NOT GIVE ADEQUATE NOTICE OF THE CHARGES THAT WILL BE TESTIFIED ABOUT AT THE HEARING IN VIOLATION OF THE SIXTH AMENDEMENT TO THE CONSTITUTION OF THE UNITED STATES.

POINT II: THE EVIDENCE PRESENTED AT THE HEARING WAS INSUFFICIENT TO SUPPORT THE ALLEGATIONS IN THE COMPLAINT, SINCE IT WAS BASED ON EVIDENCE FROM PLAINTIFF OR POLICE OFFICERS WHO HAD NO DIRECT KNOWLEDGE OF WHAT HAPPENED.

POINT III: THE COURT FAILED TO FOLLOW THE HEARING PROCEDURE REQUIRED BY N.J.S.A. 2C:25-29.

POINT IV: PLAINTIFF WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE HEARINGS ON MARCH 20 AND 23, 2007.

We have carefully reviewed the record in light of the arguments presented and the applicable law. We are satisfied that the arguments raised on appeal are entirely without merit and we affirm substantially for the reasons stated by Judge Kilgallen in the decision that she placed on the record on March 23, 2007. We add the following brief comments.

The scope of our review of the judge's factual findings and conclusions of law 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) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

"Therefore, an 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, supra, 65 N.J. at 484). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

We are convinced that there is sufficient credible evidence in the record to support the judge's findings that defendant committed acts of domestic violence, as defined in N.J.S.A. 2C:25-19. We are additionally convinced that the judge did not abuse her discretion by entering the final restraining order. In our view, the injunctive relief granted here, including the provision of the order enjoining defendant from any contact with the minor children, L.C. and J.D., was entirely appropriate in the circumstances.

Furthermore, we reject defendant's contention that she did not have adequate notice of the charges. The complaint made clear that plaintiff's allegations were primarily based on the incident that occurred on March 1, 2007. However, the complaint placed defendant on notice that plaintiff would support her application for a final restraining order with evidence of other incidents of domestic violence, including acts of harassment, threats, a prior break-in at plaintiff's home, and the taking of property from plaintiff's residence. In our view, the complaint provided defendant with adequate notice of the claims against her.

We have considered defendant's other arguments and find them to be of insufficient merit to warrant any discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20080111

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