On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-940-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 24, 2008
Before Judges Lihotz and Messano.
Defendant appeals from a Family Part order granting plaintiff's request for entry of a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (PDVA). Defendant argues his communication was made to his daughter and not intended to be transmitted to plaintiff, his wife, or to cause plaintiff annoyance or alarm.
Moreover, defendant maintains the conduct was not domestic violence. Defendant also urges reversal of a provision in the FRO restraining him from the premises of the parties' jointly owned and operated business. We have considered the arguments in light of the record and applicable legal standards and we affirm.
The parties jointly own J&J Landscaping (J&J). J&J operates a five acre garden center and retail store. The store sells large and small plants and trees, both wholesale and retail, to contractors, landscapers, and the general public. Following their separation and while their divorce was pending, the parties commenced negotiations to accommodate their joint operation and management of J&J. The business had cash flow problems: bills were behind and back wages were due to employees. The parties' proposed agreement scheduled plaintiff or defendant to operate the store and set forth the priority of payments due to employees and creditors.
On November 4, 2007, as a result of an incident that occurred at the business, plaintiff filed a domestic violence complaint with the Toms River Township Municipal Court alleging harassment. A temporary restraining order (TRO) was entered pending the final hearing.
The hearing was conducted before a Family Part judge and the parties and their daughter testified as to the events underlying plaintiff's request for a FRO. On November 4, plaintiff was scheduled to work at J&J. The J&J employees had quit two days earlier because defendant failed to sign their paychecks. At approximately 12:30 p.m., plaintiff briefly left the store to pick up the parties' youngest daughter. Plaintiff arranged for the parties' twenty-one-year-old daughter to "watch the register" along with her friend "Ashley." A new employee, "Kyle," was in the store stocking shelves. Shortly after plaintiff left J&J, defendant arrived. The parties' daughter testified defendant "started getting mad that we were working there" and he began yelling, stating "we were all going to have to leave."
Ashley called plaintiff and explained defendant was at the store "yelling and screaming." Plaintiff asked Ashley to hand the phone to the parties' daughter and then asked her daughter to allow her to speak to defendant. The daughter said, "wait." Defendant began to leave the store and walked out to his car. Instead of leaving, he returned to the store and continued yelling.
Plaintiff could hear defendant "aggressively cursing" telling their daughter: "F-her"; "She's f-ing crazy"; "I'm going to close this business down"; "We're going to have big f-ing problems"; "I have a big f'ing problem with her now"; "I'll make her lose her house"; "She can't work"; "I'm closing this business down"; and "We're closed." Plaintiff requested entry of an FRO, expressing her fear of defendant because he "doesn't do anything he's supposed to do in all of these court orders."
Plaintiff insists defendant knew she was on the telephone. The parties' daughter stated she did not ask defendant to speak to plaintiff. Although she "was not sure," the parties' daughter "thought [defendant] knew" plaintiff was on the telephone because he was standing approximately two feet away from his daughter looking directly at her.
Defendant did not dispute making the comments attributed to him. He testified he was "venting some anger" upon learning the employees had quit and he believed his daughter, Ashley, and Kyle were working without supervision. Defendant stated he had "absolutely" no knowledge plaintiff was on the ...