On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-1659-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Baxter.
Plaintiff Edda Villagomez appeals from a March 28, 2007 order that denied her request for a domestic violence final restraining order (FRO) and dismissed a previously-entered temporary restraining order (TRO). We affirm.
Plaintiff and defendant Ezequiel Romero previously resided together. A daughter, now age eight, was born of their relationship. Plaintiff also has a son, now age nine, born of a different relationship. On February 11, 2006, after defendant returned the two children to plaintiff after their visit with him, the son informed his mother that defendant stated he was going to kill her. The younger child confirmed the statement. Because of a past history of domestic violence, plaintiff filed a request for a TRO, in which she alleged defendant made a terroristic threat, namely the statement reported by the children. A judge issued a TRO.
At the hearing on the FRO, although neither child testified, the trial judge permitted plaintiff to testify to what her son told her defendant had said. Based upon that hearsay testimony, the judge found that defendant had committed a predicate act of domestic violence. Consequently, the judge entered a FRO. On appeal, we reversed and remanded for a new trial, determining that the admission of the hearsay statement of the son was reversible error. Edda Villagomez v. Ezequiel Romero, No. A-3972-05 (App. Div. January 30, 2007).
On remand, pursuant to the agreement of the parties, the court permitted the son, then eight years old, to testify in chambers, where he was cross-examined by the attorney who represented defendant. The child explained that on the day in question, he and his sister were in the back seat of defendant's van when he heard defendant speaking on his cell phone to an unknown third party. According to the child, defendant told the person on the other end of the phone, "I'm going to kill their mother." When the child was asked by the judge whether he "believed that [defendant] was talking about you and your sister" when he said "their mother," the child answered yes. After the son's testimony was concluded, the judge and the parties agreed that it was not necessary to interview the other child.
Plaintiff also testified on remand. She explained, as she did at the first trial, that within a half an hour of the children returning home from their visit with defendant, they started to cry and tell her that defendant said he was going to kill her. She added that she believed those threats because of the way defendant had acted in the past. According to plaintiff, there were incidents in 2000 and 2001 when she sought a TRO after defendant punched her and caused bruises. She acknowledged that neither of those requests for a FRO was granted. One was dismissed by the court because of insufficient proofs and plaintiff voluntarily dismissed the other.
At the conclusion of the testimony, the judge made findings of fact and dismissed the TRO:
[The son] testified that . . . he heard [defendant] talking on the cell phone one day while he was in the back of the car and into the cellphone [defendant] said words to the effect of, quote, I'm going to kill their mother, close quote. So this was not a communication made to the children directly. It was made in their presence and it was not made to [plaintiff]. That's what we know now.
I thought the [plaintiff's son] not only was a very credible witness, but is . . . a terrific kid. [A]nd I believe him. I have no problem . . . saying this was an act of terroristic threat if [defendant] turned to the children and said, you know what, I'm going to kill your mother one day. Because clearly that would be intended, I can infer easily, to upset them with the intention that it be communicated to [plaintiff]. But that's not what [the son] told us. [He] said that [defendant] was on the phone. He was speaking to somebody else, we don't know who it was. And [the child] overheard this. I have no reason to doubt that [defendant] said the words, I'm going to kill their mother to somebody on the telephone as [the child] said. . . . And . . . while an adult may think that it was the equivalent of . . . [defendant] bad mouthing [plaintiff] to ...