May 2, 2008
ISIS A. LLANOS, PLAINTIFF-RESPONDENT,
ALEJANDRO TORRES, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-000344-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 31, 2008
Before Judges Lintner and Alvarez.
This is an appeal by defendant Alejandro Torres, Jr., of a final restraining order (FRO) issued against him pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. The FRO prohibits defendant from, among other things, having any contact with plaintiff, Isis Llanos, who was pro se on appeal. For the reasons that follow, we affirm.
The parties had a brief dating relationship that ended acrimoniously in the summer of 2007. A domestic violence temporary restraining order (TRO) was obtained by defendant against plaintiff on August 7, 2007. Plaintiff then obtained a TRO against defendant on August 13, 2007. Both complaints were tried simultaneously on August 15, 2007. Both parties were pro se. At the close of the hearing, the family court judge dismissed defendant's complaint and he converted plaintiff's TRO to an FRO. He found by a preponderance of the evidence, based on his conclusion that plaintiff was the more credible witness, that defendant had engaged in a course of harassing conduct against her.
We do not "engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). In fact, we are obliged to give due deference to the trial judge's credibility determinations and feel for the case based on his opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Pascale v. Pascale, 113 N.J. 20, 33 (1988); In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Additionally, in family court matters, greater deference must be accorded to the judge's fact finding because of the family court's special jurisdiction and expertise. Ibid.
As set forth in defendant's brief, his challenge is exclusively to the trial judge's fact-findings:
Point I The Court Below Improperly Failed to Consider Evidence Which Exculpated Mr. Torres.
Point II The Record Does Not Support the Court Below's [sic] Findings that a Final Restraining Order for the Respondent Against Mr. Torres was Proper.
At the time of trial, plaintiff was twenty-nine years old. She testified that when she learned the defendant had lied about his age, and that he was only twenty-one and not the twenty-nine years he held himself out to be, she attempted to end the relationship. Prior to this event, defendant had once "pushed [his] hand into her face with an open palm." At one point, when the parties were discussing the end of their relationship, defendant began to cry and threatened to kill himself and her by crashing his car. Plaintiff placated defendant by saying: "I'm not going to leave you" and the threats ended. Shortly thereafter, when she went on a brief vacation with a friend, defendant followed, actually booking a flight on the same plane and staying at the same resort.
On August 3, 2007, defendant called plaintiff and told her "I'm going to f--- you up" because she had anonymously called an insurance company about a possible false claim he was pursuing related to the theft of a motorcycle. Two days later, on a Sunday, plaintiff claimed a vehicle similar to defendant's drove by her house on numerous occasions. Although she admitted that she could not identify defendant as one of the occupants, as the vehicle drove by her house, she could hear voices yelling at her that she better "shut [her] mouth." A few days after that incident, on a Saturday night, she went to the police to ask for an escort home as she was afraid that she was being followed.
Defendant testified that during the course of August 3 to 5 plaintiff called the home he shared with his parents on numerous occasions. He was away on a business trip to Georgia during those days. He denied making a threatening call to plaintiff on the morning of August 3, claiming it was an impossibility because he was either on an airplane, or was not able to use his cell phone. Defendant also claimed that plaintiff had called him excessively on August 3, and on August 5 had threatened to "f---" him up. He testified that she called his phone so many times that he was required to change the number. Defendant's father also testified. He said plaintiff essentially asked defendant to stay away from her, and that he told her that they should stay away from each other.
Although the trial judge declined to describe defendant's testimony as incredible, he essentially found plaintiff to be the more credible witness. He was not convinced by defendant's statement that plaintiff was calling him and threatening him because he would not leave her alone. As he said, the testimony was "illogical." Although the trial judge declined to look at defendant's documentation of his trip to Georgia, he said he believed his testimony that he was away on the relevant days. He found the fact that defendant was traveling would not necessarily have prevented him from making the call. The judge determined that defendant harassed plaintiff on August 3 by virtue of the threatening phone call, and that there was a prior history of harassment and threats.
Under the Act, harassment is a predicate offense which supports a finding of domestic violence and the issuance of an FRO. Harassment, under the Criminal Code, can occur when a person "[m]akes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language," or when a person "[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33-4. One single harassing communication may suffice for a finding of domestic violence under the Act. State v. Hoffman, 149 N.J. 564, 580 (1997).
Having reviewed the record, we find the judge's conclusions are supported by "'competent, relevant and reasonably credible evidence,'" giving due regard as we must to his determinations of credibility. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.) certif. denied, 40 N.J. 221 (1963)) Even if defendant was away on August 3, it did not prevent him from making a threatening phone call to the plaintiff on a phone other than his cell phone. The record overall supports the family court's findings that an FRO against defendant was warranted. Accordingly, these findings of fact will not be disturbed on appeal.
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