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Metzger v. Payne

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 21, 2008

STACY METZGER, PLAINTIFF-RESPONDENT,
v.
KINDLER PAYNE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FV-04-3133-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 14, 2008

Before Judges Collester and C.L. Miniman.

Defendant Kindler Payne appeals from the entry of a final restraining order entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to 25-35. Following a trial, the Family Part judge found that defendant committed acts of harassment against plaintiff Stacy Metzger contrary to N.J.S.A. 2C:33-4. We affirm.

Defendant and plaintiff, both eighteen years old, had a dating relationship for their last two years of high school and attended their senior prom together. Shortly thereafter on May 20, 2007, plaintiff ended the relationship. Over the next three weeks defendant called plaintiff on the phone eight times even though she told him that she did not wish to speak with him. He left voice messages on her cell phone and 127 text messages. Plaintiff testified that defendant called her a "bitch" and told her that "she would pay.

Plaintiff testified that at about midnight on June 8, 2007, she was being driven home by her new boyfriend when defendant and his friend Jon began tailgating them in separate vehicles. Although the street was a no passing zone, Jon pulled in front of the car driven by plaintiff's new boyfriend and stopped while defendant pulled to the side of the car at a stop sign in order to block the boyfriend's car. Plaintiff testified she and her boyfriend were blocked in for several minutes until defendant and his friend drove off. However, she soon saw that defendant was continuing to follow her. Plaintiff's boyfriend drove past her house, but defendant continued to pursue. Plaintiff called the police and drove to police headquarters. She saw defendant circle the building, but he left when a squad car pulled in.

Plaintiff then filed a complaint and received a temporary restraining order.

Defendant testified and explained his statement that plaintiff "would have to pay" was because his father wanted him to get back the money he paid for plaintiff's prom ticket. He also testified that the June 8, 2007 incident, described by plaintiff never took place. He said he was at a friend's house that night until 2 a.m.

Judge Michelle M. Fox made credibility findings, accepting the testimony of plaintiff and found defendant's assertion not credible. The judge stated:

I find that the Defendant has in fact committed acts of harassment pursuant to the statute. I find that those acts consist of the combination of the telephone call, the vehicle incident and the text and phone messages. I find that following someone, which I find happened, I find that having had the opportunity to observe the demeanor of the witnesses and listen to their testimony and assess their credibility, I find that the Plaintiff and her witness Mr. Wilson are credible. I find that the action of following someone at a time of night at 12 o'clock which is certainly an extremely inconvenient hour pursuant to the statute, continuing to follow them in his vehicle, the Defendant is -- it was designed and did in fact cause annoyance and/or alarm. To the extent that the Plaintiff and her boyfriend drove directly to the police station, at which time I find the Defendant followed them to the police station, and I find that the Defendant engaged in a course of alarming conduct or repeatedly committed acts, and I find that the separate acts of first initially boxing in the Plaintiff in her boyfriend's vehicle, following the Plaintiff in her boyfriend's vehicle, leaving, coming back, continuing to follow the Plaintiff in her vehicle, and then following the Plaintiff in the vehicle to the police station, all fail within the purviews of N.J.S.A. 2C:33-4, and I find that the Plaintiff has proved by a preponderance of the evidence that in fact the Defendant committed acts of domestic violence which warrant the issuance of a Final Restraining Order.

After careful review of the record, we find that the factual findings and conclusion of Judge Fox are supported by the testimony and that the actions of defendant constituted harassment under N.J.S.A. 2C:33-4(a) and (c), thereby justifying the issuance of a final restraining order.

The arguments made by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2).

Affirmed.

20080521

© 1992-2008 VersusLaw Inc.



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