July 11, 2008
LORI-ANN LUCAS, PLAINTIFF-RESPONDENT,
RICHARD LUCAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FV-12-2430-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 24, 2008
Before Judges Skillman and Winkelstein.
Defendant Richard Lucas appeals from a final restraining order issued by the Family Part pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We affirm.
The parties were married in 2002 and have one child, a daughter, who was born on July 27, 2003. By 2007, plaintiff and defendant were in the midst of divorce proceedings, and plaintiff and her daughter were living with plaintiff's parents in Wall Township. To facilitate his visitation with the child, defendant would drive to plaintiff's parents' home, and, generally, plaintiff's father would walk the child from the house to defendant's car. On May 19, 2007, however, plaintiff's mother, Carol Stise, walked the child from the house to defendant's car. Stise testified that as she approached the car, she saw a flier that contained sexually explicit nude color photographs of plaintiff taped to the car window. Included on the photographs were plaintiff's name, address, telephone number, email address, and social security number, as well as the names and addresses of plaintiff's employers.
Upon seeing the pictures, Stise opened the car door and ripped the flier from the window. She testified that defendant responded that "there was plenty more where they came from." According to Stise, when the child observed the flier, she asked her father if he was selling the car, and defendant responded: "No, . . . I just want everybody to see how beautiful Mommy is." Stise further testified that when defendant left with the child in the car, he had already taped another flier containing nude pictures of plaintiff to the window.
When plaintiff learned what happened, she became "hysterical." She called the police, filed a police report, and obtained a domestic violence temporary restraining order against defendant. Defendant was also charged with endangering the welfare of a child and invasion of privacy.*fn1 When defendant was arrested, he gave the arresting officers several additional nude photographs of plaintiff that he had in his vehicle. Defendant denied that he had posted a flier on his car window, although he acknowledged carrying nude photographs of his wife in his vehicle.
Plaintiff testified that the photographs were taken earlier in the parties' marriage, and she had never given copies of the photographs to anyone. Although plaintiff is an exotic dancer at two clubs in New Jersey, she uses an alias to protect her identity.
When questioned if there were occasions that she was in fear of her safety as a result of actions taken by defendant, plaintiff testified as follows:
A I believe it was back in January, I'm not sure what year it was, a couple of years ago, he was threatening me about not cleaning the cat's litter box, and told me if I left him, he'd kill me, . . . I was still trying to leave the house to get out to get to my parents' house, and he wouldn't let me leave.
Q: How did he keep you from leaving?
A: There's a sliding glass door and the front door of the apartment are right next to each other, and he just reached his arms across and didn't let me get out.
Plaintiff testified that she is five-feet, two-inches tall, weighing one hundred ten pounds. The temporary restraining order lists defendant as six-feet, two-inches tall, weighing two hundred eighty pounds.
Plaintiff further testified that on other occasions, defendant, who she claimed had a "really bad temper," repeated his threat to kill her. She claimed that he possessed a replica gun from the Civil War, as well as "a few knives."
In granting the final restraining order, the trial judge found a history of domestic violence. He made the following pertinent findings:
What I did find credible was the incident where [plaintiff] claims there was an argument. I think that had started with a disagreement over the litter box, and that the plaintiff testified that the defendant said that if she left him that [he] would kill her, and although no restraining order was issued or sought at the time, . . . I found that testimony to be credible and reasonable.
The court also found that Stise was credible:
I did find . . . the plaintiff's mother's testimony credible. I found that . . . there was an exchange that occurred between . . . the plaintiff's mother and the defendant that day, and while the . . . plaintiff I find may exaggerate or overstate at times, this incident really occurred between the plaintiff's mother and the defendant.
The photographs with the personal information on them, social security number, email, name, et cetera, is egregious, and I do find a restraining order is necessary to protect the plaintiff from future abuse. . . .
The act of providing a social security number, name, which was not the stage name that the plaintiff had testified to, could be damaging to her reputation, and was designed and was done with the purpose to harass. And under the case of McGowan[ v. O'Rourke, 391 N.J. Super. 502 (App. Div. 2007)], . . . I am going to enter a final restraining order.
Findings by trial courts are binding on appeal so long as they are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Here, the record fully supports the trial judge's order.
To determine whether a domestic violence restraining order shall issue, the judge must first determine, by a preponderance of the credible evidence, whether the defendant has committed one of the predicate acts set forth in N.J.S.A. 2C:25-19a. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). The court must consider the evidence in light of whether a previous history of domestic violence existed between the parties, and whether there also exists an "immediate danger to person or property." Id. at 126.
Here, the judge found that defendant had committed the predicate act of harassment, N.J.S.A. 2C:33-4a. To be guilty of that act, a person must, with a purpose to harass another, make, or cause to be made, a communication anonymously, at extremely inconvenient hours, or "in offensively course language, or any other manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4a. Those elements have been satisfied. The judge found credible plaintiff's mother's testimony that defendant had posted on the window of his car a flier, containing nude pictures of plaintiff, as well as her name, address, telephone number, email address, social security number, and the names and addresses of her employers. When defendant left with the child in the car, defendant had already taped another flier containing nude pictures of plaintiff to the car window. These facts constitute harassment under N.J.S.A. 2C:33-4a.
The court also credited plaintiff's testimony that defendant had, in the past, threatened to kill her. That satisfies the requirement of a history of domestic violence between the parties.
The facts here are similar to, if not more egregious than, the facts in McGowan, supra, 391 N.J. Super. 502. In McGowan, we found that the "act of mailing graphic pornographic pictures to a third-party and implying that they may be sent to the victim's workplace and her son [was] egregious," and could constitute an act of harassment. Id. at 506. Here, defendant's posting nude pictures of his wife on his car door window where they could be seen by the public, and including on the picture her name, address, place of employment, email address, and social security number, are even more egregious than the actions that constituted harassment in McGowan.
Defendant argues that even if plaintiff has established the predicate act of harassment, no restraining order was warranted in that plaintiff failed to prove that a restraining order was necessary for her protection. We disagree. Defendant's placing a nude picture of plaintiff on the window of his vehicle, which could be observed by the public, and which included plaintiff's name, address, place of employment, email address and social security number, had the capacity to place plaintiff at risk.
Defendant claims that plaintiff's work as an exotic dancer somehow justified his actions. That argument is simply without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A), (E).
We affirm substantially for the reasons expressed by the trial court.