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Velasquez-Hay v. Bustamante

January 5, 2009

NELLY VELASQUEZ-HAY, PLAINTIFF-RESPONDENT,
v.
EBERG BUSTAMANTE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-1569-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 9, 2008

Before Judges Skillman and Grall.

Defendant appeals from a final domestic violence restraining order entered on March 3, 2008. This order was based on a finding that defendant committed a predicate act of harassment, in violation of N.J.S.A. 2C:33-4(a), which warranted entry of a restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

Defendant argues that he was not given adequate notice of the hearing or of his right to seek an adjournment; that the trial court failed to find that he had any intent to harass plaintiff; and that the evidence did not support a finding of a violation of N.J.S.A. 2C:33-4(a).

We conclude that the evidence presented at trial did not support the court's finding that defendant violated N.J.S.A. 2C:33-4(a). Therefore, we reverse the final domestic violence restraining order entered against defendant. Our conclusion that there was insufficient evidence to support the finding that defendant harassed plaintiff makes it unnecessary to consider defendant's other arguments.

The parties were divorced in 2003. They have an adult son, named Jose, who is severely disabled. Those disabilities include blindness and substantial difficulty walking. Plaintiff has residential custody of Jose, and defendant has parenting rights. The incident that resulted in the finding of domestic violence occurred when defendant went to plaintiff's home on February 24, 2008 to pick up Jose in order to exercise his parenting rights.

Plaintiff's complaint, which was served upon defendant less than twenty-four hours before trial, alleged:

[Defendant] went to [plaintiff's] house to pick up his son. [Defendant] became angry and was asking [plaintiff:] "Why is that car there, this is Jose's driveway. You are trying to block me." [Defendant] stated to [plaintiff:] "You are going to die." (See addendum)[.]

Plaintiff also attached an addendum to her complaint, which further alleged:

[Defendant] told [plaintiff:] "I'm going to sue you and take everything." [Defendant] also stated to ...


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