January 27, 2010
J.P., DEFENDANT-APPELLANT/ CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Burlington County, Docket No. FV-03-1221-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 2, 2009
Before Judges Cuff and Payne.
This is a domestic violence matter. Defendant appeals from a final restraining order entered pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, which bars defendant from having any contact with plaintiff and her current boyfriend. Defendant argues that there was insufficient evidence to allow the trial judge to find by a preponderance of the evidence that he committed an act of domestic violence. He also contends that the trial judge should not have permitted testimony of acts following the filing of the complaint. We affirm.
In her cross-appeal, plaintiff contends the trial judge should have entered an order enjoining defendant from filing any court complaints in any jurisdiction without prior permission of the court. She also argues that the trial judge should have granted reasonable attorney's fees.
Plaintiff and defendant had a prior dating relationship. On February 17, 2009, plaintiff filed a complaint in support of her application for a temporary restraining order in which she alleged that defendant committed an act of criminal mischief when he threw a large stone through a window in her house. She alleged that defendant's action broke the glass and damaged the frame on a window of her home. She asserted the act occurred shortly before 11 p.m. on February 16.
A temporary domestic violence restraining order issued on February 17, 2009. Plaintiff's application for a final restraining order was tried on April 6, 2009. At that time, plaintiff testified that in the early morning hours of February 16, 2009, someone banged on her front door and rang the door bell. She went downstairs and discovered spray paint on the garage, front door and a glass door. She called the police.
That evening, at approximately 10:50 p.m., plaintiff was upstairs with her boyfriend. They heard glass shatter and the boyfriend ran downstairs. He saw the living room window broken and a brick or stone in the room. The boyfriend ran outside and saw a man walking down the street away from plaintiff's home. The boyfriend followed the man but he started to run. The man got into a black BMW and sped off. The boyfriend, however, was able to see the license plate, memorized the license number and immediately recorded the number, GCJ7424, on a napkin when he returned to the house. He described the man as a 5'6" black man with a small build.
As the boyfriend pursued the man, plaintiff called the police. She reported the current incident and her observation of the shattered window and the brick or stone in her living room. When the boyfriend returned to the house, plaintiff relayed the information about the car and license plate from him to the police.
At trial, plaintiff also related a third incident that occurred on February 23, 2009, over the objection of defendant.
She testified that at 4 or 5 a.m., she heard the sound of shattering glass and discovered her other living room window shattered, spray paint on the side of her house, and more paint on her garage. Plaintiff called the police. Officer Howard of the Willingboro police testified that defendant was apprehended soon thereafter, driving a black BMW approximately two miles from plaintiff's home.
Plaintiff also testified that defendant and she have had a tumultuous relationship since March 2007, when plaintiff terminated their romantic relationship. She described a series of complaints, civil and criminal, filed by defendant against her in various forums and in several states. She also had sought and dismissed an application for a restraining order against defendant. Defendant did not testify.
In his oral decision, the judge concentrated on the events of February 16, 2009. The judge acknowledged that the dispute centered on who threw bricks through two windows and who applied paint to plaintiff's house. The judge found the boyfriend credible and found the boyfriend's observations of the man he pursued and the car the man entered were based on personal observations. He also found that defendant met the general description of the man pursued by the boyfriend on the evening of February 16.
The judge also found that a similar incident occurred one week later and that defendant was apprehended driving a car similar to the car observed by the boyfriend approximately two miles from plaintiff's home and shortly after the last incident. In addition, the car driven by defendant bore a license plate that closely approximated the plate number related by plaintiff to the police dispatcher a week earlier. The judge concluded that plaintiff had produced sufficient evidence to allow him to find by a preponderance of the evidence that defendant was the person who threw a brick through her window and spray painted her home on February 16. He further found that those acts satisfied the elements of criminal mischief, N.J.S.A. 2C:17-3. We agree.
The evidence submitted by plaintiff required the finder-of-fact to draw certain inferences. We are satisfied that the direct evidence of the observations of plaintiff and her boyfriend, coupled with defendant's apprehension in close proximity to plaintiff's home soon after a third incident in a car similar to the car observed in her neighborhood a week earlier, provided sufficient direct and indirect evidence to support the judge's factual findings.
The record also demonstrates that the judge was keenly aware of the due process concerns of admission of testimony of events not described in the complaint, H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003); J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998), and the need to minimize the admission of and reliance on hearsay evidence. The judge strictly confined his analysis of the record to the evidence related to the February 16 incidents.
As to plaintiff's cross-appeal, her request for an injunction to bar defendant from filing further civil, criminal or quasi-criminal actions against her is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). On the other hand, we remand plaintiff's request for attorney's fees for further consideration by the trial judge.
The Act specifically authorizes a judge to award reasonable attorney's fees. N.J.S.A. 2C:25-29b(4). The purpose of this relief is to facilitate the assertion of the rights afforded to victim's of domestic violence. M.W. v. R.L., 286 N.J. Super. 408, 411 (App. Div. 1995). Here, plaintiff retained an attorney to represent her in this proceeding and incurred costs to obtain the protection afforded to her by the Act. We recognize that a fee award is a decision vested in the discretion of the trial judge. City of Englewood v. Exxon Mobil Corp., 406 N.J. Super. 110, 123-25 (App. Div.), certif. denied, 199 N.J. 515 (2009).
Here, however, the judge provided no reasons for denying this relief. We remand for further consideration of the request and an explanation of the decision on this request.
Affirmed in part; remanded for reconsideration of plaintiff's request for attorney's fees.
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