January 7, 2009
DEBORAH MILIAN, PLAINTIFF-RESPONDENT,
MOHAB ELSANHOURY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. FV-09-1993-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges C.L. Miniman and King.
Defendant appeals from a final restraining order (FRO) based on harassment of the plaintiff. The claim arose out of child visitation during which supervision by the plaintiff's mother was required. The defendant allegedly compelled the plaintiff's mother to make a "harassing" phone call to the plaintiff during one visitation. The defendant also admitted making calls himself to the Division of Youth and Family Services (DYFS) charging plaintiff with abuse and neglect. Judge Charles found no reasonable basis for these claims and restrained defendant from further harassing the plaintiff.
On this appeal defendant makes two claims of error.
POINT I-THE TRIAL COURT ERRED BY FINDING THAT MR. ELSANHOURY'S CALLS TO DYFS WERE ACTS OF HARASSMENT.
POINT II-THE TRIAL COURT'S FINDING IS NOT SUPPORTED BY THE EVIDENCE.
Defendant claims on this appeal, and for the first time in this case, the applicability of N.J.S.A. 9:6-8.13*fn1 which confers civil and criminal immunity from liability for reports made in good faith concerning child abuse of neglect. This argument was not presented at the trial and the judge did not have occasion to rule upon it. Our appellate courts will decline to consider issues not properly presented to the trial court, absent compelling circumstances. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We follow that principle here and decline to consider the application of N.J.S.A. 9:6-8.13 to this case. We find the record fully supports the finding of harassment sufficient to justify the decision by Judge Charles to issue the FRO. We affirm the judgment for the reasons stated by Judge Charles in his oral opinion of February 26, 2008 where he said:
The [c]court finds, however, that plaintiff has sustained the harassment complaint that she has made against... this plaintiff. This [c]court finds that the defendant through his own testimony has engaged in conduct that was for the purpose of and had the effect of causing alarm and upset to Miss Milian. This [c]court in reaching that conclusion refers to the events of January 27th of 2007 where this defendant had plaintiff's mother call the plaintiff and during that telephone conversation he discussed and argued with... Miss Milian's conduct with the baby before turning the baby over for visitation. This defendant argued that that had the effect of alienating... Layla from the defendant during his supervised visitation, a peculiar position. But in any event his position was disagreed with by the plaintiff. Plaintiff's disagreement [with] this defendant... caused him to file a complaint with DYFS making allegations of neglect or alienation of affection, whatever it is, an allegation to DYFS.
This [c]court finds that that report to DYFS with respect to that conduct has the affect of harassing or annoying and alarming a mother, who now has to have DYFS do an investigation. The [c]court further takes cognition of the testimony of the defendant that on two prior occasions that he has called DYFS in to investigate this mother's fitness, and in connection with those calls alleged drug addiction, mental abuse, [and] sex parties. And in connection with the sex allegation he's testified that some of [the] events happened at a place in Pennsylvania two or three years ago, whatever. Nothing current. And based upon that he makes allegations or calls to DYFS regarding the unfitness of this mother to be with the daughter.
The [c]court finds that such allegations, based upon what he said they were based upon, constituted harassment, had the effect of, had the purpose of harassing this plaintiff, and had the effect actually of annoying and harassing this plaintiff. This [c]court therefore finds that plaintiff has sustained her burden of proof by a preponderance of the evidence of her claim that this defendant has engaged in acts of harassment.
The [c]court would further note that in 2004 plaintiff filed another complaint which plaintiff dismissed, wherein plaintiff alleged that this defendant engaged in harassment. The [c]court just notes that that's in the file. That is not a predicate basis for the Court's finding of harassment in this case, but the Court simply takes cognizance of that.
And now the third question is whether a final restraining order is necessary to prevent further acts of domestic violence. This [c]court finds that a final restraining order is necessary in this case. This Court... finds that the relationships between the parties, the emotional state of both plaintiff and the defendant, are such that the parties should... not be together, that there should be restrictions and limitations on the interactions between the parties, that such is necessary to prevent another act of domestic violence. The Court will therefore enter a final restraining order.