On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-05-155-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 12, 2008
Before Judges Sapp-Peterson and Baxter.
Defendant Michael C. Covert appeals from a September 12, 2007 order that granted the request of plaintiff Ashley K. Covert, his ex-wife, for a domestic violence Final Restraining Order (FRO). We reverse.
The parties were divorced in May 2007. The divorce decree designated plaintiff as the parent of primary residence. The parties agreed that their two children would spend June 20 to August 31, 2007, with defendant. Plaintiff testified that on August 27, 2007, she received an irate telephone call from defendant's mother. According to plaintiff, her former mother-in-law "was screaming at me with [defendant] in the background screaming and hollering, because they just learned about [a] warrant . . . that had [been] issued on him for non-payment of child support." According to plaintiff's testimony, "the conversation ended [with] 'you just caused yourself a whole lot of trouble.'"
Plaintiff stated that she was so alarmed by the conduct of defendant and his mother that when she drove to defendant's mother's home in Mahwah to pick up her children on August 31 at the end of defendant's agreed-upon parenting time, she asked the Mahwah police department to accompany her. She explained that she was "afraid to go up by [her]self [and] did not know what was going to happen." When plaintiff arrived to pick up the children, defendant was not present, but she was able to pick up the children from her former mother-in-law.
After plaintiff arrived at her home in Villas in Cape May County after picking up the children in Mahwah, she observed defendant drive past her house three times. According to her testimony, on each of those three occasions defendant "hollered out the window 'you're going to pay.'" She then called police and filed a complaint for harassment and sought a temporary restraining order (TRO). A municipal court judge granted the TRO that night. Plaintiff had filed one prior domestic violence complaint a few years earlier, but the judge dismissed her complaint and declined the request for a TRO because the proofs were insufficient. Consequently, there was no prior history of domestic violence.
The only other witness to testify at the hearing was defendant. He stated that he drove to Cape May County from Maine where he was then working as soon as his mother informed him that a warrant had been issued against him for non-payment of child support. A receipt from the Cape May County Probation Department was admitted in evidence showing that on the day in question, August 31, 2007, defendant paid $910 and the warrant was vacated. He testified that plaintiff had earlier assured him that she would request the Probation Department to hold his child support obligation in abeyance during the period from June 20 through August 31 while his children were living with him. He explained that when he learned that plaintiff had reneged on that promise and that a warrant had issued, he drove down from Maine to Cape May to satisfy the warrant. He insisted that his sole purpose in driving to Cape May County was to satisfy the warrant.
In his testimony, he acknowledged driving by plaintiff's home three times after he left the Probation Department. He explained that he did so at the request of his mother to see "who all came to take the children." He explained that he and his mother were concerned about the poor driving habits of plaintiff's fiancé, whom defendant knew because the fiancé was defendant's former employee. According to defendant, he drove by plaintiff's house because he "wanted to know when the kids were going to get home" and wanted to find out whether plaintiff had driven the children from Mahwah to Villas or instead if her fiancé had done so. He denied yelling anything out his car window and insisted that his sole purpose for driving by the house that day was "just the well-being of [his] children."
At the conclusion of the testimony, the judge found that defendant drove by plaintiff's home on three occasions on August 31, 2007, for the purpose of harassing plaintiff. Accordingly, the judge granted plaintiff's request for the FRO. The judge reasoned:
Defendant says that yes he did drive by the house. However, he was checking on his kids and the reason he drove to the shore in the first place was to pay the child support warrant. Plaintiff indicates that [on] the [three] occasions that she witnessed him drive by, that he shouted you will pay or something to that [e]ffect. . . . I've got a factual issue to resolve whether it happened as the plaintiff indicated. The drive-bys are conceded by the defendant, but . . . he says that he came down to check on his kids. In my view, it doesn't ring true and that's true for a couple of reasons. Number one, the plaintiff indicates that the gentleman who was causing [defendant] concern, her fiancé, didn't go with her to pick up the kids. I believe that could have been resolved [by defendant] with a conversation with his mother, who was at the home in Mahwah. Or even assuming that he didn't know or couldn't have known that [by telephoning his mother], driving by . . . is a very poor way to check on your children. Defendant argues that even if [the court] resolve[s] the factual testimony in the plaintiff's favor, that Peranio [v. Peranio, 280 N.J. Super. 47 (App. Div. 1995)] and other cases . . . teach that domestic contretemps, [which is] people fussing and fighting, that that's not . . . domestic violence under the Act. That the law assumes . . . that there [are] going to be arguments where voices are raised and names are called. ...