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J.D. v. M.F.

January 11, 2010

J.D., PLAINTIFF-RESPONDENT,
v.
M.F., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-05-203-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2009

Before Judges Stern and J. N. Harris.

Following a querulous trial, Judge John R. Rauh entered a final restraining order (FRO) in favor of plaintiff pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on findings that defendant harassed plaintiff. In this latest appeal between the parties, defendant argues that he was denied a fair trial and that his conduct did not amount to domestic violence. We reject defendant's arguments and affirm.

Defendant and plaintiff were in a long-term unmarried relationship spanning 1993 to 2006, and two children were born as a result of this liaison. After the parties split they first engaged in palimony litigation in the Family Part, later to be by this court.

The predicate events surrounding the current appeal took place in the early morning hours of September 19, 2008. Defendant took flash-enhanced photographs outside of plaintiff's residence, allegedly to gather evidence to present in court against plaintiff and her boyfriend in connection with the parties' then-pending dispute. Plaintiff and her boyfriend were finishing up their showers and getting ready to go to bed when they saw flashes of light outside the bedroom window. They witnessed defendant taking photographs from the inside of his vehicle, before he proceeded to drive away. Defendant fully admitted to these actions at the FRO hearing:

THE COURT: Well, 1:45 [a.m.], you concede that you're there. I guess you take issue with whether you stopped or not, but they may have seen flashes. So, what were you doing, regardless of whether you stopped or not?

MR. F[.]: I was taking pictures showing his truck in front of her house at that time of the day.

THE COURT: Why?

MR. F[.]: Well, if I - if I divulge that information, it kind of gives my hand away for - for the case that I'm trying to pre[s]ent. And she can go talk to her attorney about it and come up with a defense. But I can assure you that - .

In the early afternoon of September 19, 2008, around lunchtime, plaintiff applied for, and was granted, a temporary restraining order (TRO) against defendant. Later that day, defendant was served with the TRO and less than an hour later, he mailed a motion to the Family Part against plaintiff for increased visitation time with the parties' minor children.

In plaintiff's TRO application, she focused on the earlier events of that morning, but also mentioned several other incidents during which defendant tried to force himself on her, or angrily confronted plaintiff's boyfriend and herself. The complaint stated, in response to Question 1, "[a]ny prior history of domestic violence reported or unreported?" the following:

June 08, Def[endant] was parked outside pla[intiff's] residence awaiting pla[intiff's] boyfriend to exit the residence. Def[endant] began taking pictures of pla[intiff's] boyfriend [and] asked pla[intiff's] boyfriend how the accommodations w[]ere[?] Pla[intiff] has filed for three TROs in the past for incidents including physical assault [and] harassment. Def[endant] has climbed thr[ough] pla[intiff's] window early in the morning took off his clothing [and] attempted to have relations w[ith] the pla[intiff]. Pla[intiff] told def[endant] she was going to call the police, def[endant] got dressed [and] left the residence. Pla[intiff] reports while parties were going thr[ough] their separation ...


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