April 2, 2009
DIANNE BROWN, PLAINTIFF-RESPONDENT,
ROBERT BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Bergen County, Docket No. FV-02-001784-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 18, 2009
Before Judges Cuff and Fisher.
Defendant Robert Brown appeals from a final restraining order entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm.
Plaintiff Dianne Brown and defendant were married and living together in March 2008. The parties had been having marital difficulties for some time and were sleeping in separate bedrooms. Plaintiff had consulted an attorney and a complaint for divorce had been filed on February 28, 2008, but not served on defendant until the afternoon of March 13, 2008.
On March 13, 2008, the parties dressed their children and defendant took them to their caretaker. Plaintiff left for work. Just before 8:00 a.m., plaintiff received a call from her husband. He customarily called her after delivering the children to their caretaker. This time, however, plaintiff testified that defendant angrily and coldly stated that she should not come home because something bad would happen.
During the day, plaintiff spoke to her attorney and purchased a digital recording device. Therefore, when defendant called her at work at approximately 4:00 p.m., she was able to record the conversation. In this call, defendant informed plaintiff, in an expletive laden tirade, to stay away from him and the house. Defendant further stated she could call the State Police and the army, but she should stay away from him. We discern from the record that defendant had been served with the divorce complaint not long before he placed this call to plaintiff.
Plaintiff applied for and received a temporary restraining order. At the hearing on the final restraining order conducted a week later, plaintiff testified that she and defendant had many verbal disagreements over the state of their marriage. She stated that defendant had stormed out of the house after an argument on at least one occasion just before the March 13 incidents. Plaintiff also testified that the March 13 calls frightened her.
Defendant admitted he placed two calls to plaintiff on March 13. He disputes the tone and content of the first call. He admitted that he placed the second call, that the voice on the digital recording was his, and that the transcription of the second call is accurate. Defendant testified that he was surprised when he was served with the divorce complaint and was upset and disappointed. He stated that the purpose of the second call was to express his disappointment.
Plaintiff argued that the telephone calls constituted terroristic threats and harassment. Defendant responded that both calls should be considered in the context of a disintegrating marriage with no intention to frighten or threaten his estranged spouse.
Judge DeLorenzo expressly found that the calls could not be considered terroristic threats. The judge acknowledged that not every verbal argument or disagreement can be considered an act of domestic violence. On the other hand, addressing the second telephone call, the judge found that defendant "went over the line." The judge reasoned that when defendant stated,
[g]et the cops to the house, get the state police to the house, you need an army; that together with the 7:52 conversation, from my point of view and what I'm ruling is clearly... an event of harassment.... I'm finding that he engaged in a course of conduct that day that... was done with the purpose to seriously alarm or seriously annoy the plaintiff.
The judge determined that defendant "intended to do that and he succeeded in frightening the plaintiff. Now, she is frightened." The judge also found that her fear was reasonable under the circumstances.
Defendant argues that the statements made by him are indistinguishable from the statements made by the defendants in Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995) and Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995). Judge DeLorenzo's opinion clearly reflects his knowledge and understanding of both cases. His finding that defendant "went over the line" reflects his understanding that not every verbal argument is considered an act of harassment, and his findings in this case are undoubtedly informed by his opportunity to listen to the digital recording of the second telephone conversation.
We are obliged to defer to the findings of fact of a judge sitting without a jury due to the ability of the judge to evaluate the demeanor and credibility of the witnesses. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). That deference is enhanced in family matters due to the expertise and extensive training of Family Part judges. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We have a transcript of the second conversation. It is an expletive laden tirade directed at plaintiff. We, unlike Judge DeLorenzo, have read only the transcript. The judge listened to the recording. He had the opportunity to hear the tone and the depth of emotion expressed by defendant. In such a situation, we should not, and do not, intrude on the fact-finding function of the trial judge.
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