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Gibson v. Turner

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 27, 2009

ANN P. GIBSON, PLAINTIFF-RESPONDENT,
v.
WILLIAM TURNER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, FV-01-732-08-B.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 8, 2008

Before Judges Stern and Rodríguez.

William Turner appeals from a Final Restraining Order (FRO), pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (DVA), based on allegations of harassment and stalking by his former girlfriend Ann P. Gibson. We affirm.

These are the salient facts. The parties had dated for a period of approximately one-and-one-half months. The respondent, Gibson, testified that she told Turner on October 28, 2007 that she did not want to see him anymore. According to Gibson, Turner left presents at her door, which included lingerie from Victoria's Secret, diamond rings, and a bracelet. Sometimes, Gibson would come home from work and Turner would be waiting by her mailbox. According to Gibson, once Turner followed her male friend to Pleasantville. Turner asked the friend if he was sleeping with Gibson. During this conversation, Turner referred to Gibson as a "slut" and "bitch." The friend did not testify at the hearing. Therefore, this was hearsay.

Gibson alleged that Turner was at her "apartment all the time," and she has seen him at her job "a couple of times." In addition, Turner called Gibson's house and waved to her from the outside. Gibson testified that she saw Turner five times outside her complex after she told him that she did not want to see him anymore. These incidents occurred on October 19, 21, 23 and 28, 2007, and on November 5, 2007. Gibson testified that on October 28, 2007, Turner drove his car into her apartment complex. Later that day, Turner called her a "slut" and "bitch." In an incident on October 27, 2007, Turner followed Gibson as her son drove her to Shore Memorial Hospital.

Gibson finally declared that she did not want to have anything to do with Turner. She sought and obtained a temporary restraining order (TRO) against Turner based on the described incidents and on an alleged prior history of stalking and harassment. Four days later, Turner sought and obtained a TRO against Gibson alleging harassment. The judge conducted a hearing on both matters. Both parties testified without counsel.

Turner denied harassing or stalking Gibson. He also alleged Gibson engaged in harassing conduct directed at him. His testimony at the hearing confirmed that they had had a rocky relationship. They had broken up and reconciled several times during the brief period they dated. According to Turner, Gibson would frequently be the one to call after the breakup and try to reconcile. Turner admitted leaving gifts as well as a ceramic space heater. He also admitted that he would ask his friends to return some of Gibson's property by leaving it at her doorstep. Turner testified that Gibson called him and left "nasty messages" telling him to stop coming around her apartment complex.

According to Turner, Gibson lives with a male roommate. One time when Turner and Gibson were at her house, the roommate returned home. Gibson hustled Turner out, stating that the roommate was her uncle from Teaneck. This precipitated one of the breakups. Finally, Turner declared that he did not want to have anything to do with Gibson.

The judge denied Turner's application but granted Gibson's application for an FRO. Turner does not appeal from the dismissal of his complaint against Gibson.

Sixteen days after the FRO was entered, Turner was charged with contempt pursuant to N.J.S.A. 2C:29-9(b). Gibson alleged that she had seen Turner at her apartment complex that day. Eventually, the prosecution dismissed the contempt complaint.

On appeal, Turner contends that: (a) "there was no testimony that Gibson was in fear" of him nor did Gibson establish the reasonable inference of fear necessary to constitute stalking; (b) the elements of harassment were not satisfied because there was no "intent to annoy or alarm" Gibson; (c) the hearsay testimony that Turner followed Gibson's friend to Pleasantville should not have been admitted; and (d) the complaint was not specific enough in terms of alleging dates, denying Turner the opportunity to properly prepare his defense. We reject all of these contentions.

We begin our analysis with a review of governing principles. "Domestic violence" means the occurrence of one or more of several acts described in the DVA, including harassment, N.J.S.A. 2C:33-4, and stalking, N.J.S.A. 2C:12-10. Cesare v. Cesare, 154 N.J. 394, 401 (1998). The trier of fact must consider several factors, including any prior history of domestic violence between the parties and the best interests of the victim. There is no requirement that the victim actually feared injury because "some people are braver than others and less likely to be subject to intimidation." Thus, "The criminality of the perpetrator's conduct should not depend on the courage or timidity of the intended victim." State v. Nolan, 205 N.J. Super. 1, 4 (App. Div. 1985).

The Criminal Code defines harassment as a petty disorderly persons offense if a person, with purpose to harass another, "[m]akes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4(a). "[A]nnoyance" under that subsection means to "disturb, irritate or bother." State v. Hoffman, 149 N.J. 564, 580 (1997). Finally, the provision in N.J.S.A. 2C:33-4(a) prohibiting conduct communicated in any manner likely to cause annoyance or alarm encompasses, for constitutional reasons, only those modes of communicative harassment that "are also invasive of the recipient's privacy." Hoffman, supra, 149 N.J. at 583.

The scope of appellate review of a trial court's factfinding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Because a trial court "'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). Therefore, we must not disturb the factual findings and legal conclusions of the trial judge unless "we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484. We should "exercise [our] original factfinding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Ibid.

Furthermore, the Family Part possess special expertise in the field of domestic relations. See Brennan v. Orban, 145 N.J. 282, 301 (1996). The field includes domestic violence complaints. Id. at 300. Because of the Family Part's special jurisdiction and expertise in these matters, appellate courts should accord deference to Family Part factfinding. New Jersey Div. of Youth & Family Services v. E.P., 196 N.J. 88, 104 (2008); Cesare, supra, 154 N.J. at 401. As noted previously by the Supreme Court, the Legislature "has reposed grave responsibilities on Family Part judges to ensure the safety and well-being of women and children in our society." Brennan, supra, 145 N.J. at 304.

Here, considering the provisions of the DVA and its broad legislative intent, we conclude from our review of the record that the judge's findings, which credited Gibson's testimony, are supported by the evidence. See Rova Farms, supra, 65 N.J. at 484. Given the deferential standard of appellate review, we sustain the judge's findings. Therefore, because the judgment under review is based on findings of fact adequately supported by the evidence, it must be affirmed. R. 2:11-3(e)(1)(A).

Affirmed.

20090127

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