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Karl v. Polo-Karl


March 4, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FV-07-2860-07.

Per curiam.



Submitted: February 4, 2008

Before Judges Stern and C.L. Miniman.

Defendant Maria Polo-Karl appeals from the entry of a final restraining order (FRO) in favor of defendant Ronald Karl entered on May 17, 2007, which was amended on June 18, 2007, and from an order of June 18, 2007, denying Maria's application for an FRO against Ronald. We affirm.

Ronald testified at the May 17, 2007, hearing and offered pertinent evidence respecting Maria's conduct. The parties had been divorced on June 15, 2004, at which point Ronald received primary custody of their son Dane, who was eighteen at the time of the FRO hearing. On Monday, May 8, 2007, Ronald received six voice messages on his voicemail that were threatening and harassing and twelve unanswered telephone calls where no message was left. Ronald made a tape recording of these six messages as well as a number of similar messages left on his voicemail the previous week. Ronald secured a TRO on May 9 and brought the audiotape to court on May 17, 2007.

Ronald testified that in the messages Maria, who walks with a cane, threatened to enter Ronald's property, fall and injure herself so she could sue him. She also threatened Ronald's parents, who were seventy-three and seventy-five years old, by saying that she was going to charge them with embezzlement of funds so that she could enjoy seeing them die in jail. Maria also threatened to follow Ronald's wife to the home of his wife's son in Pennsylvania and that Ronald's wife should worry about her children. In other voicemail messages Maria mentioned numerous parties at Ronald's home and described vehicles parked in front of his house, which led Ronald to believe that Maria was stalking him. Maria talked about a pick-up truck with Pennsylvania license plates that Maria believed belonged to Ronald's wife's son.

Ronald also testified that this was not the first time that Maria left messages on his voicemail. Over the past three years Ronald received messages from Maria which, over time, would become increasingly intense and then subside, despite Ronald telling her numerous times not to call him. Just in the month before May 8, 2007, Maria telephoned Ronald on forty to fifty separate occasions even though Dane by then was an adult and there was no reason to contact Ronald.

As further evidence of the recent voicemails, Ronald played most of the tape recording of twelve messages, including the ones left on May 8, 2007, and others left the week before.*fn1

After hearing eleven messages, the judge determined that he had heard enough and did not need to hear the balance of the tape recording. Maria was given opportunities to cross-examine Ronald before he left the stand.

Maria then testified in defense of Ronald's claims and in support of her own application for an FRO. Maria testified that the voicemail messages she left on Ronald's telephone were all "in response to what [Ronald's] been doing to me for the past three years. And that's all I have to say Your Honor." She did not assert any proper purpose for making the calls nor did she claim that she was trying to resolve some dispute. Then Maria testified to the basis for the May 14, 2007, TRO issued in her favor in Morris County, which had been transferred to Essex.

Maria testified in a very disjointed and sometimes incomprehensible fashion to an alleged lengthy history of domestic violence by Ronald, although she admitted that, having secured multiple TROs, she had never obtained an FRO. As to recent acts of domestic violence, she claimed that Ronald had repeatedly vandalized her car by driving screws into the left rear tire on multiple occasions and putting water in her gas tank. She admitted that she never observed Ronald do any of these acts of vandalism nor did she call any witnesses to connect Ronald to the damage to her car.

At the conclusion of the hearing the judge placed his fact findings on the record. He found that Maria did not dispute making the telephone calls to which Ronald testified. He stated that he had listened to eleven of the voicemail messages and to the testimony of Ronald, none of which was denied by Maria. From listening to the voicemail messages, the judge found that the overall purpose of the "calls was to annoy or alarm [Ronald] and not for any other purpose." He found that the calls were not made to resolve disputes but to make threats that Maria "was going to go to court. She was going to report him. She was going to have him go to jail. That his relative[s] were going to be convicted of fraud or embezzlement or whatever." The judge concluded that Maria engaged in harassing conduct that was significant, although one or two such calls would not have risen to the level of harassment. As a consequence, the judge entered an FRO that day against Maria protecting Ronald from any contact with her.

With respect to Maria's application for an FRO, the judge found that she had failed to prove any recent communications from Ronald to Maria that could be considered harassing. He observed that things said by Ronald the prior December and August and the prior year could not support an FRO in May of 2007. He also concluded that one phone call on April 9, 2007, was not sufficient to prove harassment. Thus, he concluded that Maria had not proven any recent harassment.

With respect to the vandalism to Maria's car, the judge concluded that the only evidence as to the last occurrence on May 6, 2007, was that her car was sputtering, a mechanic said that there might be some water in her tank and recommended the addition of dry gas, which fixed the problem. The evidence with respect to a screw in her tire dated from February 2007. The judge found that Maria did not observe Ronald vandalizing her car and that she did not have any corroborative evidence of vandalism. He concluded that inferring vandalism and inferring that it was perpetrated by Ronald was far too speculative. He held that Maria had not met her burden of proving criminal mischief and dismissed her TRO.

One week after the hearing, Maria filed a motion for stay of enforcement of the FRO pending appeal, which the judge denied on June 18, 2007. Maria also sought a modification of the FRO to permit her to attend Dane's June 22, 2007, high school graduation. The judge advised Maria that the FRO did not prohibit her from attending graduation so long as she had no contact with Ronald and, thus, she did not need a modification of the order. Finally, Maria sought a reconsideration of the dismissal of her TRO because Ronald's two stepsons allegedly paid her a visit. As a result of discussion with the parties and the judge's review of the transcript of May 17 and the court files, the judge determined that he had not issued a specific order dismissing Maria's May 14 TRO. Thus, the judge entered an order dismissing Maria's TRO and issued an amended FRO in favor of Ronald dismissing Maria's reconsideration motion and transferring the FRO to Morris County where both parties resided. This appeal followed.

Maria raises two issues in this appeal. First, she contends that the judge erred in dismissing her TRO because he failed to consider the extensive history of domestic violence by Ronald "that left [Maria] hospitalized, wheelchair bound and walking with a cane." She also asserts the judge erred in failing to consider an alleged pattern of vandalism to her car occurring after she raised disputes with Ronald. Second, she asserts that the judge erred in relying on an audio tape that was not marked into evidence, retained by the court or transcribed in order to enable her to show on appeal that the calls were not harassing.

The scope of our review is limited. "[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.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Moreover, "[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.

After carefully reviewing the record in the light of the written arguments presented, we affirm the dismissal of Maria's TRO substantially for the reasons articulated by Judge Lombardi in his oral opinion delivered on May 17, 2007. No matter what the prior history of domestic violence may have been, Maria was required to prove that the most recent act on May 6, 2007, was an act of criminal mischief and that it was Ronald who committed the act. Cesare, supra, 154 N.J. at 401; N.J.S.A. 2C:25-19(a)(10). Maria clearly did not prove an act of criminal mischief at all because, as the judge found, she did not prove that anyone put water into her gas tank. She only proved that her car was sputtering and that the dry gas solved the problem. This is not sufficient to support a finding of domestic violence. Roe v. Roe, 253 N.J. Super. 418, 428 (App. Div. 1992) (plaintiff must prove domestic violence by preponderance of the evidence). As a consequence, the prior history of domestic violence never became relevant.

As to the second issue, without a doubt the trial judge erred in failing to ensure that the tape of the voicemail messages was recorded on the court's official record of the proceedings or to mark and retain the tape as a court's exhibit. R. 1:2-2 so requires. See also, R. 1:2-3 (evidence to be preserved for appeal). The issue then becomes whether the error requires a reversal and a remand to recreate the record. R. 2:10-2 provides in part that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." We are satisfied in the particular circumstances of this case that the absence of a transcript of the voicemail messages does not prejudice Maria's ability to raise at least some issue with respect to the sufficiency of the evidence supporting the FRO.

In Ronald's testimony, which the judge found credible, he specifically described the threats Maria had made in the voice mail messages. The tape recording containing those messages was played after he testified. Maria did not dispute Ronald's testimony, attack the authenticity of the tape in any fashion or point out any inconsistencies between Ronald's testimony and the tape. She did not testify to any proper purpose in leaving the voicemails.

Although Maria complains that she does not have a transcript of the tape, it was she who left the messages in the first instance and then heard them played in court. Presumably, she knows what she said and why she said it. Only three months elapsed between the May 17 hearing and the preparation and filing of Maria's brief on appeal, yet she does not raise one substantive issue with respect to the sufficiency of the evidence of harassment. Nor has she demonstrated why she could not do so, other than to complain that she does not have a transcript. We are satisfied that Maria has not met her burden to demonstrate that the error "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

Although she has not specifically raised an issue with regard to the judge's finding, here the judge properly found that defendant's course of conduct evidenced a "purpose to harass." The FRO was not based on words alone or mere speech. See State v. L.C., 283 N.J. Super. 441, 448-51 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). As our Supreme Court has noted, "a purpose to harass may be inferred from the evidence presented." State v. Hoffman, 149 N.J. 564, 577 (1997). The term "purposely" is defined in the New Jersey Code of Criminal Justice, as follows:

A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. "With purpose," "designed," "with design" or equivalent terms have the same meaning. [N.J.S.A. 2C:2-2(b)(1).]

The judge's conclusion that defendant's actions toward plaintiff were done with the "purpose to harass" is fully supported by Ronald's testimony in the record. Despite Ronald's repeated pleas to Maria to leave him alone, she persisted, knowing her frequent contacts were causing him serious annoyance and alarm. It was therefore her "conscious object to engage in conduct of that nature," which she knew or should have known would "cause such a result." Ibid. Clearly, Maria engaged in a "course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy" Ronald. N.J.S.A. 2C:33-4(c). "At its core, the 1991 [Prevention of Domestic Violence] Act effectuates the notion that the victim of domestic violence is entitled to be left alone." Hoffman, supra, 149 N.J. at 584. Without an FRO, Maria clearly would not do so.


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