March 13, 2009
KIMBERLY J. KASHON, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
JAMES B. BURNS, JR., DEFENDANT-APPELLANT/CROSS-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FV-04-601-08A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Collester and Graves.
Defendant James B. Burns appeals from a final restraining order (FRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and plaintiff Kimberly J. Kashon cross-appeals from the denial of a counsel fee award. We affirm.
Plaintiff and defendant were married on September 19, 2003 and divorced on May 24, 2007. The final judgment of divorce contained a property settlement agreement (PSA) which included a provision entitled "Non-Interference & Mutual Restraints," stating in part:
HUSBAND agrees that he will not directly or indirectly contact, visit, or communicate with WIFE, or attempt to contact, visit or communicate with WIFE, by telephone or any other means, at any location WIFE may be outside the marital residence including, but not limited to WIFE'S work, WIFE'S relatives' homes, or WIFE'S friends, colleagues or business associates' homes.
After their divorce, the parties continued to live under the same roof until July 26, 2007 when plaintiff entered into an agreement to sell the marital home. She moved out the same day to an undisclosed location, changed her employment and obtained a new cell phone number in an effort to avoid further communication or contact by the defendant. At this time, plaintiff's companion was Kevin Krivda, her former co-worker. Plaintiff testified that she was with Krivda on Friday, August 10, 2007, and saw defendant's telephone number on Krivda's phone and that defendant had called him four times from his cell phone. The following day plaintiff saw on Krivda's phone that defendant called numerous times at about 10:30 p.m.
Furthermore, according to the testimony of plaintiff and her mother, Krivda's phone showed that defendant called two or three times at about 6 p.m. It is undisputed that defendant had no relationship with Krivda or any reason to call him. On August 14, 2007 plaintiff filed a complaint under the Prevention of Domestic Violence Act and obtained a temporary restraining order (TRO) against defendant. On August 28, 2007 a hearing was conducted by Judge Nan S. Famular to determine whether defendant had committed an act of domestic violence so that the restraints and the TRO should be incorporated into a permanent order. Following the testimony of plaintiff and her witnesses, defendant moved to dismiss the complaint, arguing that plaintiff failed to present a prima facie case because she did not present Krivda as a witness to substantiate the unanswered calls registered on his cell phone. Judge Famular denied the motion, finding that plaintiff had presented a prima facie case of harassment under N.J.S.A. 2C:33-4, an act of domestic violence pursuant to N.J.S.A. 2C:25-19a(13). The judge stated:
When I look at the acts that have as yet been alleged and those are the phone calls to this Mr. Krivda's telephone, I have to say that they really, given the testimony of the plaintiff, fall under a course of alarming conduct or repeatedly committed acts with a purpose to alarm or seriously annoy the other person. And, that is, unless and until I hear from the defendant that he's going to give me some reasonable explanation as to why he was placing these phone calls to her boyfriend. And if he provides me with that reasonable explanation as to why he felt the need to speak to Mr. Krivda and find him to be reasonable, then the plaintiff might have a little bit of trouble.
But as we sit here today without hearing from the defendant I do believe that he has placed enough phone calls to constitute a course of alarming conduct or repeatedly committed acts with a purpose to seriously annoy . . . .
So I'm going to deny the motion to dismiss and proceed with defendant's side of the case.
During defendant's testimony, there was the following colloquy with the court:
THE COURT: When you were making these phone calls, what were you trying to do?
THE WITNESS: Well, Your Honor, I was making these phone calls to wish Mr. Krivda good luck and I wanted to tell him that Ms. Kashon - I just wanted to inform him that she has herpes and gave me the sexual disease herpes . . . I just wanted to share that with him.
THE COURT: Do you remember how many times you attempted to call? If you need to break it down -
THE WITNESS: No.
THE COURT: - 10th, 11th and 12th, you can do that.
THE WITNESS: Your Honor, I called about probably four times over the three days and - and I just wanted to wish him good luck and tell him.
DEFENSE COUNSEL: You knew that was a mistake, Mr. Burns.
THE WITNESS: Crazy mistake and, I mean, it was absolutely crazy.
In her decision the judge found that the defendant's repeated calls to Krivda were made with the intent to harass plaintiff and granted the FRO.
On appeal defendant argues that the trial court erred in denying his motion to dismiss the complaint at the conclusion of plaintiff's case because plaintiff failed to prove harassment by a preponderance of the evidence. We disagree. The findings of fact by Judge Famular are adequately supported by evidence in the record as a whole. R. 2:11-3(e)(1)(A). Her credibility findings and factual findings are entitled to special deference. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). See also MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007); State v. Locurto, 157 N.J. 463, 470-74 (1999). Accordingly, we hold that there was sufficient evidence presented by plaintiff to make a prima facie case of harassment and a violation of Domestic Violence Act. Furthermore, defendant's subsequent testimony underscores that his intention in placing numerous phone calls to plaintiff's companion was to harass plaintiff by pointing out an alleged health problem.
We further affirm Judge Famular's decision to deny a counsel fee award to plaintiff. Such an award lies in the discretion of the trial judge pursuant to N.J.S.A. 2C:25- 29(b)(4), and is not routinely awarded when a plaintiff receives a FRO. We find no misapplication of discretion in this instance.
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