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O'Brien v. O'Brien

August 21, 2009

COLLEEN O'BRIEN, PLAINTIFF-APPELLANT,
v.
PATRICK O'BRIEN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-0487-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 5, 2009

Before Judges Rodríguez and LeWinn.

Plaintiff Colleen O'Brien appeals from the September 18, 2008 order of the Family Part denying her application for a domestic violence final restraining order (FRO) and dismissing her domestic violence complaint against defendant. For the reasons that follow, we reverse and remand.

The pertinent factual background, as set forth at the September 18, 2008 hearing in the Family Part, may be summarized as follows. Plaintiff and defendant Patrick O'Brien have been divorced since May 2003; they have four children. Plaintiff testified that during the marriage, defendant committed "[n]umerous domestic violence acts[,]" resulting in "several . . . final restraining orders all involving assaults." In July 2007, plaintiff obtained an order permitting her to relocate to North Carolina with the children.

Plaintiff owns a lake home in Thompson, New York; her family and many relatives have owned summer homes in the area for several decades. In July 2007, defendant was ordered to "relinquish all rights to the lake house, . . . including the right of access . . . ."

On August 14, 2008, plaintiff was at her lake home with the children. Defendant arrived uninvited and "circl[ed]" plaintiff's home in his truck. A few days later, on August 17, 2009, defendant arrived on a motorcycle at the home of plaintiff's aunt, which is located near plaintiff's lake home, where plaintiff was getting ready to take the children to the beach. Defendant pulled up behind plaintiff and she asked him what he was doing there. The parties' sixteen-year-old daughter then approached and had some "not-so-nice" words with defendant.

Plaintiff again asked defendant to leave and he responded that "[he] was invited [t]here."

Defendant left and plaintiff got into her car and drove to her home where she believed defendant was going. She testified:

I went back to my house because someone had been going into my house a lot and leaving doors open and taking things, and I truly believed it was [defendant], and I think it's just his manipulation games and way of scaring me. So, I went to my house because I didn't want him to do anything to my house. . . . I pulled in the driveway. And before I could get inside . . . , he came right around, pulling up to the house . . . .

He said to me, "Where is he, you fucking whore? Where's your nigger friend? I'm going to fucking kill both of you.

At that time, I told him if he didn't leave immediately, I was going to call the Sheriff's [de]partment. I got a glimpse of his license plate number. And as I was dialing, he told me, I will be back, I will be back for both of you.

Defendant then left. Plaintiff filed a domestic violence temporary restraining order (TRO) in New Jersey on the following day.

Plaintiff testified that she is "a nervous wreck. . . . He just won't stop. This is just never ending. . . . He's been out of my life for nine years, and he will not give it a rest.

I am scared. . . . I cannot sleep. . . . I'm always looking over my shoulder." Plaintiff confirmed that she and the children reside in North Carolina; however, she sought an FRO in New Jersey because the parties "have ongoing actions here . . . [and her] whole family's here."

Defendant testified that since plaintiff relocated to North Carolina, he has had no parenting time with the children. The order permitting plaintiff to move provided that parenting time would abide further order of the court or agreement by the parties; neither had occurred as of the hearing date. Defendant stated, however, that he had no motion pending before the New Jersey Family Part to address this issue.

Defendant denied that he was in Thompson, New York, on August 14, 2008, stating, "I have no knowledge what she's talking about." Regarding August 17, defendant stated:

I was invited to a friend's house in Hancock, New York, which is past the lake. Sunday morning, I got up, I took a ride. I stopped in Chester, New York, which is before the lake, at a friend's house. I was there for approximately an hour . . . .

I rode up to the lake. I also wanted to see if I could see my son, [K.], before they went [back] to North Carolina. . . . I went by [plaintiff's aunt]'s house . . . because that was the first place to stop. They frequent there. Their family hangs out together there. . . . I felt that it was a good possibility that [K.] might be there. At no time did I get off my motorcycle, I didn't shut it off and I never left the roadway, I never put a foot on private property. As I pulled up to the house, [plaintiff] took her phone out, started screaming and yelling, ...


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