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Muench v. Feig

November 12, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-505-08.

Per curiam.



Submitted October 22, 2008

Before Judges Lihotz and Messano.

Defendant Stephanie Feig appeals from a domestic violence final restraining order (FRO) entered on October 22, 2007, and the subsequent order denying her motion for reconsideration entered on February 15, 2008. Defendant contends that the trial judge erred in issuing the FRO because "plaintiff provided no admissible evidence of harassment . . . and the only evidence against [] [her] was based upon the court's questioning of [her]." Alternatively, defendant argues that the evidence, even if believed to be true, did not prove harassment, N.J.S.A. 2C:33-4, or "justify [the] issuance of a [FRO]." We have considered the arguments in light of the record and applicable legal standards. We reverse.

On October 18, 2007, plaintiff Eric Muench obtained a temporary restraining order (TRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act), from the West Windsor municipal court. In his complaint, plaintiff alleged that he and defendant had a "dating relationship" and previously resided together. He further claimed that on October 17, defendant went to his place of employment and "told his boss . . . that [plaintiff] had been stealing from him," and that this amounted to harassment, N.J.S.A. 2C:33-4.

On October 22, 2007, the parties appeared pro se before the trial judge who advised defendant that "collateral consequences [would] occur," including fingerprinting, registration in the domestic violence offender registry, and the payment of a civil penalty, if an FRO was issued. Defendant indicated she understood and denied the judge's specific offer to "speak to an attorney" before proceeding.

Plaintiff indicated that he had no witnesses other than himself, but that he had documents he wished to show the judge. However, the judge told plaintiff "that paperwork will not be accepted as evidence[]" without other witnesses who could properly authenticate it. She advised plaintiff not to "tell [me] what somebody else said to you[.]" The judge told defendant she could "offer testimony on [her] own behalf," but that "neither of you can offer . . . hearsay evidence or hearsay testimony as [I] will not accept it as evidence." The judge then questioned plaintiff.

He testified that he had been in a dating relationship with defendant from September 22, 2005 through June 11, 2007. He claimed that on October 17, 2007, defendant had a "meeting with [his] boss [and] accus[ed] [him] of stealing," and when asked how he knew of this, plaintiff replied, "I spoke to the boss." The judge reminded plaintiff not to "tell me what [the boss] said," and plaintiff acknowledged that defendant "did not speak to [him] directly[,]" and that he "did not physically see her." Plaintiff claimed that defendant "came to [his] office" because he had filed "charges" against her in Pennsylvania. He testified that defendant had "text messaged [him] two months [earlier], telling [him] that she was going to write a letter to the office accusing [him] of whatever." There was no evidence that defendant ever sent such a letter. Plaintiff testified that "[a]s of right now," nothing had occurred as a result of defendant's appearance at his office. This ended his testimony.

After defendant declined the opportunity to cross-examine plaintiff, the judge began to question her. Defendant testified that she called the president of plaintiff's company and "let him know that [she] had some merchandise of his" she "believed to be stolen." Defendant claimed the president asked her to come to his office and return the merchandise, a carbon monoxide detector. She told him that she was plaintiff's ex-fiancée and that the device came from plaintiff.

Defendant testified that she had the detector since February, and when asked by the judge why she waited until October to call the company president, she admitted that when "[plaintiff] accused me of stealing a check . . . I just felt like if he wanted to start causing problems, then, you know[,]" quickly adding that she just "wanted to return [the detector]."

The judge concluded that defendant had gone to plaintiff's place of employment "with the purpose to alarm and/or annoy [] plaintiff, that being an act of harassment under [N.J.S.A.] 2C:33-4. As a consequence of this being an act of harassment under the statute, it becomes an act of domestic violence under the . . . statute." The judge entered the FRO and assessed a civil penalty of $250. N.J.S.A. 2C:25-29.1.

Defendant moved for reconsideration asserting the same arguments she now raises before us. After oral argument at which both parties were now represented by counsel, the judge ...

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