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Manz v. Lanzim

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 1, 2008

ASHLEY MANZ, PLAINTIFF-RESPONDENT,
v.
BRIAN LANZIM, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. FV-15-001777-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 15, 2008

Before Judges Skillman and Yannotti.

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

On March 6, 2007, plaintiff filed a domestic violence complaint, in which she alleged that defendant sent an e-mail message threatening plaintiff and her boyfriend. Plaintiff alleged that on February 20, 2007, defendant stated that he would bring a knife to school and kill her. Plaintiff claimed that in October 2006, defendant stalked her and sat outside her home.

She further alleged that defendant constantly sent her text messages threatening to harm her physically. On March 6, 2007, the court entered a temporary restraining order that, among other things, prohibited defendant from: making or causing someone else to make harassing communications to plaintiff; committing future acts of domestic violence; and possessing weapons.

On March 14, 2007, and March 20, 2007, the judge conducted a hearing on plaintiff's application for a final restraining order. Plaintiff testified that she was seventeen years old, and defendant was eighteen. Defendant is plaintiff's ex-boyfriend. She had been dating him on and off for about six months, and the relationship ended in December 2004.

Plaintiff asserted that on February 19, 2007, defendant sent her about forty text messages on her cell phone in which he stated that he wanted to fight her boyfriend, said that he was not happy with her, and called her "names." Plaintiff asserted that it was "just a lot of harassment all day long during school." Plaintiff testified that she did not believe that the situation was "really that bad because it was just text messages." She stated, however, that the messages were distracting because she had received a lot of them while at school.

Plaintiff additionally stated that "things got worse" and "escalated" the next day, February 20, 2007. Plaintiff had reported the matter to the school principal and, after the principal spoke with him, defendant sent her more text messages. According to plaintiff, defendant tried to put her in "complete fear and shock." Plaintiff said that she could not concentrate and had to leave school because defendant "kept saying how he wanted to kill [her]."

Plaintiff asserted that she did not feel that she had done anything wrong. She only wanted to try "to live [her] life and be with a person who [she] wanted to be with." Plaintiff also stated that defendant sent her a voice mail, which was about two minutes long, in which he screamed and said that he wanted to kill her. The message was played in court. In it, defendant stated, among other things, "I will fucking murder you, Okay?" He also said, "Seriously, you're dead. You are so dead."

Plaintiff stated that she also received a "bunch" of threatening text messages on February 20, 2007.

Plaintiff additionally testified that, a few weeks before, around February 1, 2007, she was at home with her mother and brother. Plaintiff saw defendant parked in his car outside of the house. According to plaintiff, defendant was staring into the windows of her home. Plaintiff also said that in October 2005, she obtained a "no contact" order against defendant because of the continuing harassment. Plaintiff asserted that, after she and defendant broke up, defendant kept contacting her, even though she told him not to.

On cross-examination, plaintiff stated that after she broke up with defendant in December 2004, they remained friends for about two months. Plaintiff said that she stopped talking to defendant in February 2005. Plaintiff conceded that she contacted defendant thereafter but said that she did so because he threatened to kill or hurt her if she did not call him. Plaintiff also asserted that she did not know whether she sent defendant text messages in the period from August 2006 to the time of the trial.

Matthew Smith (Smith) is plaintiff's boyfriend. He testified that defendant sent him an e-mail at 3:39 p.m. on March 4, 2007. Smith opened the e-mail on March 5. He read the e-mail into the record. In the e-mail, defendant stated:

"So, well, well, well. Look at what we have here, a very, very scared kid who is scared of me. Why am I not surprised? You guys are like a tag team, trying to ruin my life. Well, let's just say that I'm not done with you or her yet. Just wait 'til I get back to school. This will be fun as hell. I promise. By the way, why are you afraid of me? Just wondering. And I'm willing to bet $20 that you're gonna run to your wannabe girlfriend and tell her I emailed you, which I don't care 'cause none of you can stop me from accomplishing my goal, and that's to make you guys miserable. Well, I have to go now. Gotta go a few rounds with the bag before I come after you."

Smith stated that he felt threatened by the e-mail. Smith said that when he received the e-mail, he told plaintiff about it and sent her a copy.

Defendant testified that his relationship with plaintiff ended in December 2005. He said that the relationship resumed on and off between January, March, April and May of 2006. Defendant stated that he and plaintiff would communicate by telephone, e-mail, and instant messages on the computer.

Defendant presented records of his cell phone account, which indicated that in the period from August 23, 2006 to February 2007, plaintiff made approximately sixty phone calls to him. In the same period, plaintiff sent defendant about three hundred text messages. Defendant also said that plaintiff sent him a message by computer on December 31, 2006, in which she stated that she missed him and wanted to talk to him.

Defendant asserted that he did not send plaintiff a text message on February 19, 2007. He said that he did not call plaintiff that day. Defendant stated that he did not send plaintiff a text message on February 20, 2007, and did not have any communication with plaintiff on that day.

Defendant also said that he did not see plaintiff on February 19 or 20, 2007. He was not in school on the 19th. Defendant stated that he entered a behavioral health center on February 14th and remained there until March 2nd. Defendant said that he did not have a cell phone while he was at the health center.

Defendant additionally testified that he did not sit outside of plaintiff's residence and stare in the window on February 1, 2007. He stated that he had a conversation with plaintiff that day on the phone, in which she gave him "hints and directions" on how to get to her new home because she had recently moved.

Defendant stated that a "no contact order" had been entered in October 2006, and the parties agreed that they would not speak with each other. However, according to defendant, he had contact with plaintiff thereafter but it had been initiated by plaintiff. Defendant asserted that on March 5, 2007, he had no intention of harassing plaintiff and he did not intend to terrorize her on that day.

On cross-examination, defendant conceded that he sent the text messages to plaintiff's cell phone. He also admitted that he left the voice mail message that was played in court and the voice on the recording was his voice. Defendant was asked what was the purpose of sending the e-mails, text messages, and voice mail, and he replied that "[t]hey were out of impulse."

Defendant also said that he sent the messages because he was jealous of plaintiff's relationship with Smith. Defendant was asked what his purpose was in making the phone call and leaving the voice message. He said that the purpose "was to scare her." Defendant insisted, however, that it was never his intention to harm plaintiff.

The judge placed his decision on the record. He found that defendant's March 4, 2007 e-mail message was an act of domestic violence under the PDVA, specifically a terroristic threat under N.J.S.A. 2C:12-3 and harassment under N.J.S.A. 2C:33-4. The judge determined that the March 4, 2007 message was the continuation of the threats and harassment that had been perpetrated by defendant against plaintiff. According to the judge, the March 4, 2007 e-mail message was a threat delivered to Smith with the intention that it be communicated to plaintiff. The judge further found that the purposes of the PDVA would be served by granting the relief sought by plaintiff. Accordingly, the judge entered the final restraining order and this appeal followed.

Defendant raises the following points for our consideration:

POINT I:

THE COURT BELOW ERRED IN FAILING TO FIND THAT PLAINTIFF QUALIFIES AS A "VICTIM OF DOMESTIC VIOLENCE;" AND THE PLAINTIFF DOES NOT MEET THE QUALIFICATION UNDER N.J.S.A. 2C:25-19d.

POINT II:

THE COURT BELOW ERRED BY ALLOWING NEW EVIDENCE TO BE PRESENTED BY THE PLAINTIFF DURING HER CROSS-EXAMINATION OVER THE OBJECTIONS OF COUNSEL.

POINT III:

JUVENILE CONFERENCE COMMITTEE MATERIAL SHOULD NOT HAVE BEEN ADMITTED INTO [EVIDENCE AT] THE HEARING.

POINT IV:

THE PLAINTIFF FAILED TO ESTABLISH A PREDICATE OFFENSE OF DOMESTIC VIOLENCE BY A PREPONDERANCE OF THE EVIDENCE, AS THE ONLY ALLEGED ACT OF DOMESTIC VIOLENCE THAT OCCURRRED AFTER [DEFENDANT] TURNED 18 WAS DIRECTED AT AN UNRELATED THIRD PARTY.

We have carefully considered the record in light of the arguments advanced by defendant on appeal and the applicable law. We are convinced that defendant's arguments are entirely without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). However, we add the following brief comments.

The PDVA authorizes the court to issue a final restraining order to enjoin "the defendant from subjecting the victim to domestic violence, . . ." N.J.S.A. 2C:25-29b(1). The term "victim of domestic violence" is defined to mean: a person protected under this act and shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member.

"Victim of domestic violence" also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant. "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship. [N.J.S.A. 2C:25-19d (emphasis added).]

Defendant argues that plaintiff is not a "victim of domestic" violence because, at the time the March 4, 2007 e-mail was sent to Smith, she was only seventeen years of age. Defendant recognizes that the provision of N.J.S.A. 2C:25-19d that pertains to "domestic violence by a person with whom the victim has had a dating relationship" does not require that the victim be eighteen years or older. However, defendant argues that this subsection of N.J.S.A. 2C:25-19d should be read in pari materia with the other subsections of the statute and interpreted to mean that an individual who claims to have been "subjected to domestic violence by a person with whom the [individual] has had a dating relationship" is not a "victim of domestic violence" unless the individual is eighteen years or older. We disagree.

"The Legislature's intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v. Bacigliano, 177 N.J. 250, 280 (2003)). A court's function is not to "'rewrite a plainly-written enactment of the Legislature []or presume that the Legislature intended something other than that expressed by way of the plain language.'" Ibid. (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)). The PDVA defines the term "victim of domestic violence" to include "any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship." N.J.S.A. 2C:25-19d (Emphasis added). The term "any person" includes "any person," regardless of age. Based on the evidence presented in this case, which established that plaintiff had been subjected to an act of domestic violence by defendant, and that defendant was a person with whom plaintiff had had a dating relationship, plaintiff was undoubtedly a "victim of domestic violence" as that term is defined in N.J.S.A. 2C:25-19d.

Affirmed.

20080201

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