On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FV-15-0648-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2008
Before Judges Reisner and Sapp-Peterson.
Defendant Thomas Guzenski appeals from an October 18, 2007 final restraining order (FRO) issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. We affirm the court's finding that defendant committed domestic violence within the meaning of the Act but vacate that portion of the order prohibiting defendant from possessing martial arts weapons and remand for further proceedings.
On September 25, 2007, plaintiff Jessica McAteer filed a complaint seeking the ex parte issuance of a temporary restraining order (TRO) against defendant, whom she had dated for a short period of time. Plaintiff alleged that after she discontinued the relationship, defendant engaged in acts of harassment by watching her, appearing at her house, walking up her street, bringing gifts to her children, and holding her down on his bed when she came to his home to request that he return money that was hers. Plaintiff also alleged that defendant called her crazy, a maniac, a slut, and a liar. The complaint identified martial weapons that defendant allegedly possessed as consisting of a large sword, throwing spikes and stars, a crossbow, staffs, a spear, many knives, and nunchucks.
The matter was conferenced before a hearing officer, who recommended that the court issue a TRO. The court issued a TRO after taking testimony on the record that was limited, however, to plaintiff's expressed concern that defendant possessed martial arts weapons. Based upon this testimony, the TRO included the issuance of a search warrant directing police to search defendant's premises and seize any of the items described in the complaint for safekeeping.
On October 18, 2007, the court conducted a final hearing at which both parties appeared and were represented by counsel. Plaintiff testified that she and defendant started dating in early September and the relationship continued for a few weeks until September 23, when she broke off the relationship. On that date, she had gone to Atlantic City and called defendant to tell him that she wanted to talk to him. Upon her return, he picked her up at the bus station and, rather than taking her home as she requested, he took her to his residence, where they went to his bedroom and talked. While there, she questioned him about money she had left with him to deposit in her bank account. Defendant, however, pressed her for an explanation why she no longer wanted to be with him. When she attempted to leave, he grabbed her and held her down on his bed until his mother entered the room. Plaintiff testified that she then ran out of the room and left the house. The next day, defendant started text messaging her and making telephone calls to her at all hours of the day and night. He also sent e-mails to her and placed disparaging comments about her on a website known as MySpace. On cross-examination, she acknowledged that she responded to some of the e-mails and also admitted that in none of the text messages, e-mails, or telephone calls to her did he threaten her.
Plaintiff called her grandmother as a witness, who testified that plaintiff and plaintiff's children lived with her. She recalled that police came to her home on September 24, at which time her granddaughter provided information to them about defendant. She testified that defendant called the house on September 25 and asked for plaintiff, and when she told him plaintiff was not there, he proceeded to ask her how she felt about the "fiasco" from the previous evening. When she asked him to what "fiasco" he was referring, he responded, "[W]ell, that's okay. . . . [I]f Jessica wants to get dirty, I'll get dirty too." He told her that he would call the Division of Youth and Family Services (DYFS) and tell them that her granddaughter was on drugs, a stripper, and that her children sleep on the floor. Plaintiff's grandmother testified that the next day, a representative from DYFS appeared at her home and the conversation she had with the representative was "almost verbatim what he [defendant] said to [her] on the phone. But [defendant] claim[ed] he didn't call DYFS."
Plaintiff's next witness was the father of one of her children. He testified that defendant called him and they had a discussion for about one hour, during which he told defendant that he did not want him to "bring drama to the house where my baby lives." He explained that he and defendant had been friends but that he had not talked to him in a long time. Defendant thereafter called him on two other occasions. Defendant told him that he was lonely. He invited defendant to his home and defendant accepted the invitation. On the final occasion when defendant called him, defendant asked whether he wanted defendant to contact DYFS "being that he [defendant] was upset with [plaintiff]." He also testified that he saw defendant around 5:30 p.m. on Sunday, September 23. He explained that he had gone to plaintiff's home to drop off his daughter as he usually did every Sunday. While he and plaintiff were outside talking by his car, he saw defendant, who lived down the block from plaintiff. Defendant approached and the two of them spoke while plaintiff was in the house. When plaintiff came back outside, defendant handed her some movies that apparently belonged to her and that defendant was returning.
Defendant testified and acknowledged that he sent plaintiff text messages between September 24 and 25. He indicated that his purpose in doing so was to "return money and to speak with a friend." According to defendant, when they broke up, he told plaintiff that he could not talk to her anymore but that she convinced him to be friends. He also testified that plaintiff "never told [him] once not to contact her or not to -- if she would have told [him] to leave her alone, [he] would have gladly left her alone." He denied that he grabbed plaintiff and held her down on his bed as plaintiff had testified, stating that he "never laid a finger on her ever." He confirmed that he had martial arts weapons in his home, some of which were collectibles, but denied that he ever threatened to harm plaintiff with the weapons. He testified that the only time plaintiff would have seen him in actual possession of the weapons would have been while he was practicing martial arts. He explained that until the events before the court happened, he was preparing for a career in martial arts. Additionally, he admitted to placing thoughts about plaintiff on his MySpace account. Finally, defendant acknowledged that he had spoken with plaintiff's grandmother. He described the telephone call as his effort to apologize for the "confusion" and "mess" but the conversation was cut short when plaintiff came on the phone.
At the conclusion of the testimony, the court made the following findings:
In this case the victim alleges that after she said enough, it's over, the defendant refused to recognize that and continued to make communications by text message, by phone, by showing up at the home unannounced, by calling other people, by putting a blog ...