On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-000979-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2008
Before Judges Stern and Payne.
Defendant, Maria Balarin, appeals from the denial, by order dated March 28, 2008, of her motion for reconsideration of a Final Restraining Order ("FRO") entered November 26, 2007. Defendant argues that the elements of harassment were not proven, that she was not permitted "to cross examine the plaintiff-respondent," that the trial judge did not "render findings of credibility as to the factual witness," and that the trial judge failed to "inquire as to whether or not [defendant] wished to obtain counsel" before the hearing commenced.
The FRO was entered on November 26, 2007, and the motion for reconsideration was dated (and defendant says was filed on) December 17, 2007, twenty-one days later. As a result of defendant's motion for reconsideration, the Family Part entered an "Amended Final Restraining Order" on March 28, 2008, defendant having prevailed in terms of having "collateral issues" addressed in the FM proceedings. Based on tolling, see R. 2:4-3, we consider the amended FRO as opposed to merely the denial of reconsideration.
Defendant is correct that the record reflects that she received no advice as to the right to counsel before the original FRO proceedings began. She says she would have retained counsel, and the trial judge on the motion for reconsideration acknowledged an attorney could have helped her. But the judge also said that defendant could have asked for counsel and the proceedings could not have been re-done after an FRO was entered. We need not address this issue in light of our disposition.
In the words of defendant's brief, plaintiff's complaint alleged that defendant "made numerous phone calls to [plaintiff], had called him vulgarities, and had appeared at his home with the parties' children" incident to a dispute as to which parent was going to take a son to a doctor's appointment.
The finger of one of parties' sons was broken during a prior visitation with plaintiff and the parties disputed how the doctor's appointment was to be handled. Defendant says she couldn't take the son for the appointment and asked plaintiff to do so. The plaintiff testified at the November 26, 2007 hearing about what happened incident to that "request" as follows:
Okay. So at 7:30, my kids call me on that day and asked me to take them to the doctor, on the very same day. I told them to just tell their mother to take them, and that if she needed me to take them to the doctors she has to give me prior notice so that I can make arrangements if I cannot take them. And, so, I just told them that, and we finished the conversation and they call, with her cell phone, about seven more times. This is the home where I live with my fiancée, my newborn son, and her -- her family.
So, after responding the seven times, every time my kids will talk I will hear her [in] the background telling them what to say until she will start talking to me and cursing me out, and I will hang up the phone.
So, at 10:30 that morning they ran -- the -- the bell rang and my two kids showed up in the front of the house, and I told them that I was going to work, that I was working, because I do work -- I do a little work from the home, and that I couldn't take them to the doctor, but if the issue was the co-payment to tell the mother just to give the doctor my address and I will make the payments for the co-payment if that was what was bothering her.
So I told them to just go back to their mother's car because she was waiting outside the house, my fiancée's house. They went and stood inside the car. She came out of the car to the driveway and she started screaming on top -- top of her lungs that I was a bad father, that she's going to tell my fiancée who I'm, you know, who Luis really is, and that they should know, and that I'm a bastard, and -- I mean, this goes on, and on, and on, and on since we got divorced. She's never really -- she continues to harass me ...