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Gatanis v. Gatanis

July 22, 2009

DANIELLE L. GATANIS, PLAINTIFF-APPELLANT,
v.
MARK A. GATANIS, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FV-13-771-08B.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued Telephonically October 27, 2008

Before Judges R. B. Coleman and Simonelli.

Plaintiff Danielle L. Gatanis appeals from an order dated October 12, 2007, denying her request for a restraining order under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, against her husband, defendant Mark A. Gatanis. The parties were married on July 3, 1997, and there are three children born of the marriage, ages nine, eight and six, at the time when the decision below was rendered. We have considered plaintiff's contentions in light of the facts and the applicable law, including the limited scope of our review, and we affirm.

The parties have filed various domestic violence complaints against each other, one of which, FV-13-412-08-B, led to a five-day hearing. After that hearing, the parties entered an agreement whereby plaintiff's domestic violence complaint was dismissed. Civil restraints, which included a visitation arrangement, were concurrently entered in the pending divorce action filed by plaintiff, FM-13-566-08-B. By way of further background, on December 14, 2006, an officer of the Brielle Police Department responded to the marital home and witnessed plaintiff, in the driveway, ripping defendant's shirt and scratching him. Plaintiff was intoxicated and the three children were outside the house witnessing the incident. The responding officer placed plaintiff under arrest and filed a complaint in the municipal court against her for simple assault.

The next day, plaintiff went to the Brielle Police Department and alleged that defendant had punched her in the face, causing her lip to swell, and that he had caused several other bruises on her body. At the trial that ensued [in municipal court], Chief of Police Michael Palmer identified photographs taken of plaintiff by the police. Although those photographs lacked the usual accompanying documentation, Chief Palmer testified that he was certain they were taken by the Brielle Police.

On August 17, 2007, plaintiff went to the police station alleging that defendant threw her cell phone on the driveway, causing damage. According to Officer Ronald Sofield, after plaintiff obtained a new phone and returned home, she was once again confronted by defendant, who grabbed the second cell phone and dislodged one of plaintiff's artificial nails in the process. Officer Sofield filed a complaint in the municipal court against defendant for simple assault and criminal mischief. On that same date, plaintiff requested and was granted a temporary restraining order (TRO).

On September 7, 2007, a trial was held in the Family Part to address plaintiff's domestic violence complaint and her request for a final restraining order (FRO). At trial, the court heard testimony from plaintiff and her three witnesses: plaintiff's father, Chief of Police Palmer and Officer Sofield.

Plaintiff's father, whom the court found credible, testified that plaintiff attended several Alcoholic Anonymous meetings, and that he had witnessed defendant arguing with plaintiff "in a loud and abusive manner, pushing her and causing her to walk backwards as [defendant] approached her."

On October 3, 2007, while the domestic violence hearing was still ongoing, plaintiff filed a complaint for divorce. The next day, the Family Part judge assigned to the ongoing domestic violence dispute advised the parties that he had also been assigned their divorce case. The parties entered into a "nesting agreement," with parenting time for defendant in the marital home and the interim exclusion of plaintiff from the home. Plaintiff then dismissed her domestic violence complaint and requested an order to show cause with civil restraints in the divorce action.

The Family Part judge found that the nature of the relationship and the allegations and conduct by the parties showed "that the animosity between the parents ha[d] reached the level that [did], under these circumstances, require the intervention of the [c]court." However, considering the interests of the children, the judge denied plaintiff's request to enjoin defendant from entering the marital home and instituted the so-called "nesting arrangement" for parenting time. To that end, the judge entered an order to show cause with temporary restraints pursuant to Rule 4:52, prohibiting the parties from communicating with each other, "except by email or text message, and except as it relate[d] to the children," and from "disparaging each other in the presence of the children." The judge informed the parties that he would be appointing a guardian ad litem to represent the children.

On the same day the order was entered, defendant had his first parenting time at the marital home, under the civil restraints. According to plaintiff, when she returned to the marital home the following day, the house was in "disarray," and defendant had removed her clothes from her bedroom closet and dresser, "shoved" them in garbage bags and moved them to the basement. He also had placed an almost empty bottle of vodka, a wine opener and wine corks in various places in plaintiff's bedroom. Additionally, after plaintiff was unable to set her home alarm, she called the alarm company and was informed that defendant had called and changed the alarm code and password. ...


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