December 4, 2008
DEBORAH TINFOW, PLAINTIFF-RESPONDENT,
CARY TINFOW, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FV-07-1274-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 27, 2008
Before Judges Collester and C.S. Fisher.
Defendant Cary Tinfow appeals from a final restraining order entered pursuant to the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 to 2C:15-35) by Judge Thomas P. Zampino in favor of plaintiff Deborah Tinfow granting her exclusive possession of the former marital residence and barring defendant from entering a one block radius except for "parenting purposes." We affirm.
The background is a bitter and litigious divorce action, which continued post-judgment. The parties were married on June 15, 1991, and two children were born of the marriage; namely, K.T., born March 15, 1993, and M.T., born August 18, 1995. The parties first came to the attention of the Essex County Family Part on October 6, 2005 when plaintiff filed a domestic violence complaint alleging defendant grabbed her arm, pushed her against the wall and wrestled a telephone from her. The temporary restraining order (TRO) was later dismissed in lieu of the consent order of December 16, 2005 which granted plaintiff exclusive possession of the marital home and specified that, "The defendant shall not enter the residence or the property without the express written permission of the plaintiff or her attorneys or court order." Pick-up and return of the children was restricted to curbside.
Defendant filed a complaint for divorce on January 9, 2006. Over the next eighteen months relations between the parties remained contentious and litigious with motions filed by both parties. A second domestic violence complaint was filed by plaintiff on August 11, 2006 in which she alleged that defendant entered her home without permission when he came to pick up the children and that he grabbed her hand and bent her fingers back, causing a laceration to her left ring finger. A TRO was entered and later withdrawn concurrent with the September 6, 2006 order of Judge Zampino reaffirming the restrictions of the December 23, 2005 consent order and provided that defendant was precluded from entering the marital home "for any reason with the exception of prior notice and consent of the plaintiff and both counsel." The provision for pick-up and drop-off of the children was amended to take place in the driveway of the marital home and further specified that defendant was not to exit his motor vehicle for any reason while in the driveway. The order further stated:
If the court makes a finding that there is any violation of the December 23, 2005 consent order as it relates to content or this order shall be deemed an automatic act of harassment and constitute an act of domestic violence in accordance with N.J.S.A. 2C:29-9. Any such violation of either order referenced herein will result in a finding of domestic violence and will subject defendant to sanctions as the court directs such as immediate incarceration.
A dual judgment of divorce was entered on June 19, 2007 incorporating a property settlement agreement (PSA). The PSA directed that plaintiff must receive all property located in the marital home with the exception of certain items detailed on a schedule annexed as Exhibit B, which detailed specific pieces of furniture, art work, china and pottery most of which were in the former marital home. Unfortunately, entry of the judgment of divorce did not end the bickering between the parties. Motions and an order to show cause were filed relating to the sale of the marital home in North Caldwell and the shore house in Lavallette, and an appeal was filed from Judge Zampino's denial of a post-judgment motion for immediate sale of the marital home.
One of the sticking points to sale of the marital home was the removal of defendant's personal property as listed on Exhibit B of the PSA. Defendant made repeated written requests through counsel to obtain property from the marital residence, and plaintiff stated through counsel that the items were to be left in the marital home "to accent the house until sale." On September 28, 2007, counsel for plaintiff wrote to her adversary to complain that defendant took items of personal property including pictures off the wall while plaintiff was at work. The letter also stated:
Mr. Tinfow cannot go into the house ever at all. Ms. Tinfow has sole access to the house. . . . Mr. Tinfow generally appears angry. He stalked [M.T.] last Monday. His behavior, as my client characterizes it, was "awful," "fearful," and "scary." Mr. Tinfow blocked Ms. Tinfow's automobile. Please send me a consent order confirming that your client intends to remain out of the house and will not go in again and will return the items that were taken. Ms. Tinfow is speaking with the police department. We do not want to start in with temporary restraining orders but Mr. Tinfow's harassing behavior is unacceptable. We need a commitment from him that he will state out of the house. Let me assure you that the next time an incident arises, Ms. Tinfow will take all the steps she is entitled to take under the law. The police are being made very aware of what has transpired.
On September 28, plaintiff's counsel wrote to her adversary indicating that her client had advised her that there was a break-in at the marital home, that a lot of items were missing and "the house looks stripped" and that apparently the computer was played with during the break and entry. The letter also complained that defendant was acting in an improper manner and in "erratic fashion." On October 10, 2007 plaintiff's counsel listed the items her client agreed to let defendant remove, suggesting he e-mail her to arrange for a Saturday "at which time she will arrange to have the North Caldwell police present." Defendant's counsel answered denying that her client had entered the house without permission or notice and asserting that a police officer need not be present at the time defendant removes his property.
It was later agreed that defendant would not enter the house to take china on the evening of October 24, 2007, between 7 and 8 p.m., at which time the plaintiff and a third party were to be present. However, on the morning of October 24, 2007 defendant either called or was called by his son and found out that both children were home sick from school while plaintiff was at work a short distance away. Defendant later testified that he came to the house at about 11 a.m. to bring lunch to the children. He entered the home and decided to remove the china and a painting at that time rather than the agreed 7 p.m. because he wanted to avoid a confrontation with plaintiff.
Plaintiff testified that when she called at about noon to check on the children, she found out that defendant had come to the home. When she returned home, she saw the china and painting were gone and called the police to report an unlawful entry by defendant. Plaintiff then filed a domestic violence complaint and received a TRO. At the hearing on the final restraining order (FRO), Judge Zampino found that defendant had committed criminal trespass, N.J.S.A. 2C:18-3, an act constituting domestic violence under N.J.S.A. 2C:25-19, and signed the FRO.
On appeal, defendant makes the following arguments:
THE TRIAL COURT ERRED IN ENTERING A FINAL RESTRAINING ORDER AGAINST DEFENDANT BASED SOLELY ON ONE ACT OF CRIMINAL TRESPASS, WITHOUT ANY EVIDENCE OF IMMINENT HARM.
THE TRIAL COURT ERRED BY ENTERING A FINAL RESTRAINING ORDER AGAINST DEFENDANT BASED SOLELY ON ONE ACT OF CRIMINAL TRESPASS, WITHOUT ANY FINDINGS OF PREVIOUS DOMESTIC VIOLENCE.
THE TRIAL COURT ABUSED ITS DISCRETION BY ENTERING A FINAL RESTRAINING ORDER AGAINST DEFENDANT BASED SOLELY ON AN ACT OF CRIMINAL TRESPASS.
Before a permanent restraint can be ordered under the Prevention of Domestic Violence Act there must be proof of a predicate act under the statute by a preponderance of the evidence and a showing that the restraint is necessary to protect the plaintiff due to either a single egregious act or a pattern of behavior by the defendant. Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006).
There is no serous question in the instant case that defendant was guilty of trespass, listed as a predicate act in N.J.S.A. 2C:25-19(a). The record clearly shows that defendant was specifically instructed not to enter the plaintiff's home and that he did so willfully in violation of prior court orders. Furthermore, the record demonstrates that his entry into the house on October 24, 2007, was not an isolated aberrant act but part of a pattern of willful defiance of judicial orders that was deeply unsettling to the plaintiff and threatened her right of privacy and well-being. Compare Peranio v. Peranio, 280 N.J. Super. 47, 54-55 (App. Div. 1995); Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995).
Defendant's reliance on Kamen v. Egan, 322 N.J. Super. 222 (App. Div. 1999) is misplaced. There we held that while an act of trespass occurred when the defendant went to the residence to see his children, a restraining order was not warranted because the trespass did not possess a threat to the plaintiff's well-being. As found by Judge Zampino, the prior history between the parties which included two prior domestic violence complaints and past incidents when defendant willfully entered the plaintiff's home despite court orders and agreements to the contrary. Such repetitive action by defendant could quite properly cause plaintiff to fear for her safety. Therefore, based upon the credible evidence in the record, we find that the final restraining order was properly issued by Judge Zampino.
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