May 12, 2008
DANIELA DIIORIO, PLAINTIFF-RESPONDENT,
NICOLA RIVERSO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-1005-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2008
Before Judges A.A. Rodríguez and C.S. Fisher.
The parties were married in 1999. They had one child, who was born in 2001, and were divorced by way of a judgment entered in matrimonial litigation in Passaic County in 2004. During the course of a discussion on April 4, 2007, regarding the pick-up of their child on Easter, defendant made statements that prompted plaintiff to file this domestic violence action in Morris County. Following a trial, the judge found that defendant engaged in a deliberate course of harassing conduct during their telephone conversations that warranted entry of a final restraining order. We defer to the judge's findings and affirm.
By way of their property settlement agreement, the parties agreed to share joint legal custody and identified plaintiff Daniela DiIoria, the child's mother, as primary residential custodian. The parenting time of the child's father, defendant Nicola Riverso, was also spelled out in the agreement. However, because of their constant bickering and inability to compromise or agree, on September 1, 2005, a judge in the Family Part in Passaic County appointed a coordinator to resolve conflicts regarding parenting issues.
On April 5, 2007, the day after defendant's diatribe concerning the time for his picking up of the child on Easter, plaintiff commenced this action against defendant pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33. She filed the action in the Family Part in Morris County, not in Passaic County where their matrimonial action was venued. Defendant's motion to change venue to Passaic County was denied.
At trial, plaintiff testified that, on April 4, 2007, while the child was with defendant, she called defendant's home at approximately 8:00 p.m. to say good-night to the child. Defendant answered the phone and said he wanted to talk about parenting time on Easter, which was a few days away. They then quarreled about whether he would pick up the child at 10:00 a.m. or 10:15 a.m. According to plaintiff, this caused defendant to become angry and irritated. Moreover, according to plaintiff, despite her requests to say good-night to the child, defendant refused, apparently in an attempt to obtain her acquiescence regarding the fifteen minute dispute about Easter pick-up time. At that time, as defendant acknowledged at trial, defendant called plaintiff vile names, which need not be repeated here, and hung up. Plaintiff called defendant a few minutes later and defendant's abusive name-calling resumed.
The next day the parties spoke again. Plaintiff recorded their discussion, during which defendant repeatedly referred to plaintiff and her husband as "pathetic" and engaged in more name-calling. When plaintiff complained of this during their conversation, defendant said that he would call her whatever he wanted and that no one, not even "the law," would stop him. Plaintiff testified at trial that defendant's comments and tone revealed that he was very angry, which made her "afraid." A tape of this recorded conversation was played during the trial.
Plaintiff also testified at trial to prior similar incidents during the course of their marriage that put her in fear. She also testified that defendant had been physically abusive in the past. Defendant testified as well, acknowledging some of the name-calling, but asserting that the conversation was consistent with his personality, and there was no intent to harass plaintiff or put her in fear.
In an oral decision, Judge Thomas L. Weisenbeck thoroughly discussed the evidence and made extensive findings of fact. He found that there could be no dispute about the telephone conversation that was recorded and that defendant had acknowledged other unrecorded statements of a similar nature. The judge also stated that he found plaintiff to be sincere and credible regarding the prior instances of domestic violence, and rejected defendant's credibility insofar as he materially disputed plaintiff's testimony.
Defendant argued at trial that the conduct that formed the basis for this action did not arise to a sufficient level to warrant entry of a final restraining order. Judge Weisenbeck rejected this contention, finding that defendant's conduct represented more than mere name-calling and found instead that defendant cares not for the consequences [of what he says] and has stated as much. No one is going to stop him. He'll say whatever he wants to say. He'll call her whatever he wants to call her.
I am more than satisfied that this conduct, especially when viewed in light of a regular history, in many cases documented history of prior harassment and other predicate act, specifically assault, but harassment as well, compels me to conclude that this is the type of conduct and this is the type of situation that calls for the protection, the full protection of the Domestic Violence statute.
And I credit [plaintiff's] testimony as well that this all is upsetting to her, it's disturbing to her. And it's fundamentally contrary to her health and well-being. And I, therefore, find there is good cause for her to be concerned for her health and well-being. She should not have to have a communication with her son's father in which she is subject to this type of conduct.
Based on these and other findings, as well as his determination that the communications were made with the purpose to harass plaintiff, Judge Weisenbeck concluded that it was necessary and appropriate to enter a final restraining order.
Defendant has appealed, raising the following arguments for our consideration:
I. THE TRIAL COURT ERRED IN ITS INTERPRETATION OF THE PREVENTION OF DOMESTIC VIOLENCE ACT, HARASSMENT, N.J.S.A. 2C:33-4.
II. THE RECORD BELOW DOES NOT SUPPORT THE TRIAL JUDGE'S FINDINGS OF FACT AND CONCLUSIONS OF LAW JUSTIFIYING [SIC] THE IMPOSITION OF A FINAL RESTRAINING ORDER AGAINST THE DEFENDANT PURSUANT TO N.J.S.A. 2C:33-4.
III. THE FAILURE OF THE TRIAL COURT TO TRANSFER VENUE OF THE TRIAL TO PASSAIC COUNTY WAS ERROR.
IV. THE JUNE 26, 2007 COUNSEL FEE AWARD TO PLAINTIFF REPRESENTED ERROR BY THE TRIAL COURT.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.
Communications of the type in question -- certainly no model of behavior, particularly when the topic is the parenting of a small child -- may represent harassing conduct within the meaning of N.J.S.A. 2C:33-4. On the other hand, such communications, depending upon the situation and circumstances, may be viewed as the type of conduct or communication between former spouses that does not necessarily rise to a sufficient level to warrant issuance of a final restraining order. The fine line between what then Judge (now Justice) Long referred to in cases such as Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995) and Peranio v. Peranio, 280 N.J. Super. 47, 57 (App. Div. 1995), as "ordinary domestic contretemps," is often a matter that lies in the eyes of the beholder and generally turns on whether the finder of fact may conclude, based upon the credible evidence, that the defendant acted or spoke in the manner complained of with a purpose to harass.
Here, Judge Weisenbeck, who had the opportunity to consider first-hand the testimony of the parties and to adjudge their credibility as they testified before him, concluded that defendant's conduct exceeded the so-called "ordinary domestic contretemps" standard and that the numerous vituperations defendant heaped upon plaintiff and her current husband, as well as defendant's claim that not even "the law" would stop him, had legitimately placed plaintiff in fear. Our standard of review requires that we determine whether the judge's findings have support in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such findings should not be disturbed on appeal unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). After carefully reviewing the record, we conclude that there was a factual basis for the conclusion that defendant spoke and acted with a purpose to harass plaintiff and that there is no basis for disturbing Judge Weisenbeck's well-reasoned findings.
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