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S.B. v. Duffy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 31, 2009

S.B., PLAINTIFF-RESPONDENT,
v.
JAMES DUFFY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-001919-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 12, 2009

Before Judges Parker and Yannotti.

Defendant James Duffy appeals pro se from a domestic violence final restraining order entered on April 23, 2008. We affirm.

The following testimony was given at the domestic violence hearing. Defendant was plaintiff's former boyfriend. She filed a domestic violence complaint against him on March 21, 2008 after she received an e-mail threatening that if she did not answer his e-mail within three days, he would put nude photos of her on a website, would contact her employer, the Board of Education, and would send the photos to her daughter's father.

Plaintiff testified that on March 9, when she went to pick up her things at defendant's home, he got into her car and told her that she owed him money and that she could pay it back with sex. When she attempted to drive away, he grabbed onto the car and would not let her leave. She drove away with the passenger door open and went directly to police headquarters to file a report.

After the parties had appeared in court the first time and the matter was adjourned, plaintiff testified that she continued to receive e-mails and that defendant was posting things about her on his website. She stated that defendant had changed his password and she could not access the website to see what he was posting. Plaintiff further testified that defendant called her twenty to thirty times a day on her cell phone from the time they first broke up the previous August until January of that year. The phone calls stopped when plaintiff changed her cell phone number.

At the domestic violence hearing, plaintiff appeared pro se and defendant was represented by counsel. Counsel cross-examined plaintiff regarding her allegations and represented that he had a tape recording of the parties' conversation in the car but was not permitted to bring a tape recorder into the courthouse. The court indicated that the tape recorder would not be permitted, but that the parties' testimony as to the conversation had been placed on the record.

Defendant testified that plaintiff had full access to his website because he had made her the "admin." Defendant claimed that there was a "PHP Admin Tool Kit" installed on her laptop so she could access his client list and do things to the site to disrupt his business. He testified that he did a "tower trace" to determine that it was plaintiff who was disrupting his website. Defendant claimed that the e-mails plaintiff was receiving were not written by him and were not genuine. He also denied calling her on her cell phone and stated that he had no further contact with her after their previous court appearance on March 31, 2008.

After plaintiff, pro se, and defendant, by his attorney, made their closing arguments, the trial court found that the parties "had an extensive dating relationship for a relatively long period of time, which came to an end and this acrimonious dispute has arisen from that." The court further found that "during their relationship, unfortunately, certain photographs were taken in a private setting, those photographs, some of which were displayed in the court today and marked in evidence." The court disregarded the e-mails because it could not determine whether they were authored by defendant without expert testimony. Based upon the parties' testimony, however, the court entered a final restraining order prohibiting defendant from plaintiff's residence and from "having any oral, written, personal or electronic or other form of contact or communication with the plaintiff."

In his pro se appeal, defendant argues:

THE APPELLANT HAS NOT HAD FAIR OPPORTUNITY TO TESTIFY OR PRESENT EVIDENCE AT TRIAL. AS SUCH THE RESPONDENT GAINED AN UNFAIR ADVANTAGE. THE RESPONDENT SENT HER NUDE PICTURE TO THE APPELLANT AFTER FILING HER REPORT FOR THE POLICE TO SEIZE[,] CONTINUOUSLY STALKS HIM, BROKE INTO APPELLANT[']S WEB ACCOUNTS, DESTROYED EVIDENCE AND SEEKS FRO ORDER FOR THE SAME CHARGES. THE RESPONDENT[']S TESTIMONY DOES NOT MATCH THE POLICE REPORT OR THE AUDIO TAPE AND MUST BE BARRED FROM LITIGATION.

We note initially that defendant has included in his appendix copies of numerous text messages allegedly authored by plaintiff that were not admitted into evidence in the trial court. He has also included dozens of pages of telephone records, computer receipts and tracking information that were never presented to the trial court. Because we will not consider evidence that was not presented to or was rejected by the trial court, we disregard all of these documents. R. 2:5-4(a); State v. Harvey, 151 N.J. 117, 201-02 (1997). The transcript lists the seven documents that were admitted into evidence at trial, however, and we will consider those.

With respect to defendant's argument that he has not had a fair opportunity to testify and present evidence, the record indicates that he gave extensive testimony. Unfortunately, some of his testimony was highly technical and could not be considered by the court because it was not within the court's common knowledge and was unsupported by expert testimony. The trial court made its findings of fact which we are not at liberty to disregard. State v. Locurto, 157 N.J. 463, 471 (1999).

We have carefully considered defendant's arguments in light of the admissible record and the applicable law. The findings of the trial court are supported by sufficient credible evidence in the record. R. 2:11-3(e)(1)(A). We are satisfied that there is insufficient merit in the arguments to warrant further consideration in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20090831

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