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Bowman v. Andreychak

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 30, 2008

AMANDA BOWMAN, PLAINTIFF-RESPONDENT,
v.
JASON ANDREYCHAK, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FV-18-804-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2008

Before Judges Winkelstein and Chambers.

Defendant Jason Andreychak appeals from an April 10, 2008 final restraining order that barred him from committing acts of domestic violence against plaintiff Amanda Bowman, granted plaintiff temporary custody of the parties' two children, and placed restrictions on defendant's visitation with the children. We affirm.

The parties married on January 25, 2002, and have two children: the oldest was born on July 20, 2002 and the youngest was born on July 24, 2004. On March 26, 2008, plaintiff obtained a temporary restraining order against defendant, granting her temporary custody of the two children. Five days later, defendant filed a complaint for divorce.

A final restraining order hearing was held before Judge Buchsbaum on April 10, 2008. At the time of the hearing, plaintiff was living with the children in a women's shelter. Prior to that, she, defendant and the children were living with defendant's parents in their home.

The events that triggered plaintiff's request for a restraining order occurred on March 23, 2008, Easter Sunday. Defendant accused her of not caring about the children, telling her that she was no longer needed - "just a babysitter" - and that she should leave the home. According to plaintiff, defendant told the children to refer to her as the babysitter, not as their mother.

Plaintiff testified that while she was talking on the phone with her grandmother, defendant told her to hang up and threw candy at her. She said she did not want to argue with him because "he'll get in my face. And he makes me agree with him. I have to agree with him on everything or he doesn't stop getting in my face." On the evening of March 23, she left the house after finding a bowl on the bed with marijuana in it.

According to plaintiff, defendant tells the children that she does not love them and calls her names in front of them; he has told the children that plaintiff is a "whore just like [her] mother." On one occasion, defendant had chased her and she hid in the bathroom; defendant punched a hole in the bathroom door.

Plaintiff claimed that defendant forced her to leave the premises on multiple occasions. After she had lost her keys, he would not give her a key to the house, and when she came home, he would keep her waiting at the door. On one occasion, when she was fifteen minutes late returning home, she had to sleep in her car during a thunder storm; defendant did not let her in the house until 5:00 a.m.

Plaintiff testified that defendant broke three of her computers. In December 2007, when plaintiff tried to get into the house, defendant pulled her away from the door, and she fell down the steps. In January 2008, defendant had been holding her computer; she took it from him and walked into the back room. Defendant followed her and "smacked" her in the face. The next month, he told her to leave the house and take her belongings with her, and he "would throw them in [her] car or on top of [her] car." Once, defendant threw her personal belongings in the mud following a rain storm. She further asserted that in either January or February of 2008, while the children were present, defendant threw a dresser drawer at her that struck the wall and left a mark.

Plaintiff and defendant have had multiple arguments about plaintiff leaving the home to go out with her friends. Defendant accuses her of taking drugs and having sex with other men. Plaintiff testified that she is afraid of defendant because he "gets in [her] face. He has thrown things at [her]. He has pulled her down. He has not let [her] use the phone."

Defendant disputed plaintiff's testimony. He acknowledged that they had arguments about plaintiff going out with her friends. He also complained that when plaintiff was with the children, she did not play with them. On Easter Sunday, because plaintiff was not playing with the children, defendant admitted that he told her to "tough it up," even though she had a headache. Defendant also conceded that he had told her that she did not live in the house because she had said she wanted to leave.

Referring to plaintiff's testimony that he hit her in the face, defendant asserted that they had an argument about her going out with her friends. She told him she could not stand him, she was leaving, and started to pack her belongings. When she refused to take all of her belongings, he went to her computer and unplugged it from the wall, at which point she was pulling his shirt, punching him, and trying to grab the computer from his hands. He then turned and put his hands in a defensive position because she was slapping him, and his "hand came in contact with her face."

Defendant also explained the incident that led plaintiff to sleep in the car during a rain storm. That evening, plaintiff and defendant had been arguing. She went out, indicating that she would return at 11:30. When she was not back by midnight, he locked the door. When he woke up at 3:00 a.m., he saw her sleeping in the car, which was parked in front of the house. He knocked on the window, woke her up, and let her into the house. He testified that sometimes plaintiff did not return home until 6:00 or 7:00 a.m.

In explaining what occurred when plaintiff's clothing ended up in the mud, he indicated that he always told her if she was going to leave, to take all of her belongings. Consequently, her belongings were "pretty much in tubs right in front of the door." When she refused to put them in the car, he picked one of the tubs up and put it on the hood of her car. While carrying the tub to the car, two pair of pants fell out of the tub; he put them on the back of her car, but when she drove away, the pants flew into the muddy street.

Defendant denied throwing a dresser drawer at plaintiff. He indicated that as he was carrying her laptop computer, he tripped over one of his son's toys, dropped the computer, and it broke. He acknowledged breaking her second computer by slapping it. Defendant testified that in front of their children, plaintiff called him names, such as "fag," and she would say that he was lazy and worthless.

After the court took additional testimony with regard to the status of the children, it ruled that defendant had committed an act of domestic violence. The court made the following findings:

[Plaintiff testified t]hat the defendant called her a whore in front of the children at least 20 times since December . . . . Had essentially not let her sleep at the house. Basically, [he] spit at her; yell[ed] at her. And that she was essentially frightened to stay in the house. Because of the constant saying, get out. You don't really live here any more. You don't belong here. This is through the few months preceding this March incident. Also in January, throwing her belongings in a plastic container and putting them on the top of her car.

You can argue about whether they were dropped in the mud intentionally or not. But there is no doubt that in effect he was telling her get out of here by taking her belongings out and putting them on the car.

We also have the incident in -- I think it was February . . . that [s]he was late. He . . . had taken the key away from her again. . . . That's not typical behavior. But she came home. Couldn't get into the house and he waited up awhile but eventually locked up and went to sleep and she ends up sleeping in the car at night, which is not normal behavior and re-enforces the theme, get out of here. I am going to do what is necessary -- at least at times there is a pattern of conduct that basically says this isn't your place. Go away.

And we have other reports of comments about calling her a whore, having sex with everybody and doing that in front of the children . . . .

And we do have some incidents of physical confrontation. In January, the two of them got into a debate over . . . her coming and going. And, as a result, there was a grabbing. The third computer was grabbed and in that confrontation the plaintiff ended up with an injury to her lip. Certainly that would have been annoying or alarming conduct.

In describing the incident in which plaintiff testified that defendant slapped her, the court stated: "And he admits in this particular confrontation his hands did come in contact with her face. He makes it more innocent. Because he says she was slapping."

The court found that plaintiff's version of events was more credible than defendant's. The court stated:

But what makes me not persuaded of the defendant's version of the events is that this is the third time we have something about a computer. And the first computer incident he said he dropped it. Then he offered to replace it. The second computer incident . . . it was on someone's fingertips and then it broke. So he bought a third computer.

There is an old observation, if something happens once, it is an accident. If it happens twice it is suspicious. And by the time something starts to happen a third time, then we have this instance the third time, it becomes rather clear that there is not just an accident involved here.

I don't find it credible that these physical confrontations all of them were just simply accidents. The lip thing, the two computers being broken, that in the context of the goods being thrown out of the house, about instructions to leave, taking the key, locking the door, there is too consistent of a pattern here where I believe that the defendant was engaging in alarming conduct . . . by this unwanted touching through the destruction [of] the computers and through the incident of hurting her lip and through the constant get out of here, take all your stuff, throwing the stuff out.

Look at the human reality here. Slap in the face, combined with all these facts, combined with his own statements . . . makes me believe that the defendant did in fact essentially do the things that plaintiff accused him of, that he was engaging in physical confrontations. That he was throwing goods out on the outside. That he was harassing her to the point of telling her to get out of the house. And . . . her description was that it was . . . a relentless effort to harass her to leave the house -- did in fact occur and it was done through this basically throwing the stuff out, the yelling, the name-calling, and so that there was a course of alarming conduct, as required by the statute, with the explicit purpose of harassing the plaintiff; that all this conduct was done for a reason. It wasn't done to pass the time of day. It was done for the reason of harassing the plaintiff and getting her out.

And so the court specifically finds that there was an intent to harass here and the harassment did consist of the alarming course of conduct the court described occurring over a period of three to four months and the unconsented touching, particularly with respect to the unwanted touching on the lip.

The court found that defendant's conduct constituted harassment as defined in N.J.S.A. 2C:33-4b, c.

A trial judge considering a domestic violence complaint has a two-fold task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Ibid. Second, "upon a finding of the commission of a predicate act of domestic violence, . . . the court [must decide whether to] enter a restraining order that provides protection for the victim." Id. at 126 (footnote omitted).

Harassment is defined as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

b. Subjects another to striking, kicking, shoving, or other offensive touching . . . . or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person. [N.J.S.A. 2C:33-4b, c.]

Here, the evidence supports the trial court's conclusion that defendant violated subsections b and c of the harassment statute. The court found that plaintiff was credible when she testified that defendant struck her in the lip, threw a drawer at her, and made constant, inappropriate remarks to her, some of which he made in front of the children. The judge also found credible that at least once, defendant forced her to sleep in her car in a rain storm. We agree with the judge that these actions constituted harassment, and a purpose to harass may reasonably be inferred from the evidence.

Defendant challenges the trial judge's award of temporary custody of the minor children to plaintiff. He claims that the facts do not support the custody order or the limited parenting time the court awarded to defendant. Defendant does not, however, point to any legal errors the court made in arriving at that decision, and the court did, in fact, order a risk assessment to determine the best interests of the children pending further action. We find nothing in the record to support defendant's allegation that the custody and parenting time provisions of the final restraining order constituted a mistaken exercise of discretion by the trial court.

We affirm substantially for the reasons expressed by Judge Buchsbaum in his thorough and well-reasoned opinion.

20081230

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