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Fisher v. Libro

April 28, 2009

JUDITH FISHER, PLAINTIFF-RESPONDENT,
v.
TERENCE LIBRO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-05-0027-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 16, 2008

Before Judges Winkelstein and Fuentes.

Defendant Terence Libro appeals from the order of the Family Part granting plaintiff Judith Fisher's application for a final restraining order (FRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). The trial court found that defendant had committed the predicate offense of harassment, as defined in N.J.S.A. 2C:33-4. Included in the relief ordered, the court restrained defendant "from driving any motor vehicle in the 4300 or 4400 block of Central Avenue or on 43rd Street between Landis Avenue and Park Avenue all in Sea Isle City."

In this appeal, defendant argues that the trial judge committed reversible error by aggressively examining the witnesses, thereby crossing the line between impartial jurist, and party-advocate. Defendant also argues that the record does not support the court's findings with respect to the predicate offense of harassment. Even if we were to uphold the court's ruling with respect to the FRO, defendant further argues that the restrictions imposed by the court on his conduct are too broad, and impermissibly expose him to potential criminal prosecution for engaging in otherwise facially innocuous conduct.

We reject defendant's argument attacking the issuance of the FRO. The record developed at trial amply supports the court's findings that defendant's conduct, during the time period specified by plaintiff, amounted to harassment within the meaning of N.J.S.A. 2C:33-4. We agree, however, that the restrictions on defendant's driving require further review by the trial court.

Plaintiff appeared before the trial court pro se. Defendant was represented by counsel. These are the facts.

The parties are divorced. They have two children, the youngest child is a minor and resides with plaintiff. According to plaintiff, the circumstances that led to her seeking injunctive relief under the Prevention of Domestic Violence Act occurred when she dropped off her youngest child at school. As she doubled parked her car to speak to another parent, plaintiff heard the sound of defendant's vehicle; she looked back through the rearview mirror and noticed that his car was coming down the street. Because she also saw a marked police car directly in front of defendant's car, she decided to drive away, presumably to avoid a possible ticket for double parking.

As she turned left unto John F. Kennedy Boulevard, she noticed that defendant's truck was between her car and the car immediately behind her. Defendant then passed that car, and situated himself immediately behind her. Plaintiff testified that, at that point, he drove up to my bumper, my back bumper, practically ate my bumper, the car [began] making -- you know, I don't know if there's a button he pushes to make it louder or if you step on the gas, it gets louder. I don't know, but -- and then when we near the Parkway entrance, he passed me, cut me off, went onto the Parkway.

According to plaintiff, this episode was the third time that defendant behaved in this manner. Two months earlier, as she was driving home, "all of a sudden" defendant appeared behind her, and "drove very very close again to [her] rear bumper." He continued to follow her in this fashion for a distance of about fourteen blocks, from 62nd Street to 48th Street. She heard the sound of his car engine as he drove away.

The trial judge, who conducted all of plaintiff's direct examination, asked her to clarify a statement attributable to her in the complaint, that "on many occasions Mr. Libro has been seen and heard driving . . . up and down [her] street approximately eight to nine times a day." In response, plaintiff testified that defendant's behavior began in the summer of 2006.*fn1 When pressed by the court to state definitively how many times she had actually seen defendant drive by her house from July 2006 to the date she filed this complaint, plaintiff responded: "some days it was a couple of times. Some days it was eight, nine, ten."

On cross-examination, plaintiff conceded that between 1992 and 2004 she had filed three domestic violence complaints seeking restraining orders against defendant. All three complaints had been ...


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