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D.S. v. R.A.

February 23, 2010

D.S., PLAINTIFF-RESPONDENT,
v.
R.A., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1382-09A.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 11, 2010

Before Judges Lisa and Coburn.

Defendant, R.A., appeals from a final restraining order entered under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff, D.S. The predicate offense was harassment (N.J.S.A. 2C:33-4). See N.J.S.A. 2C:25-19a(13). Defendant argues that entry of the order was error because (1) plaintiff failed to prove a predicate act of domestic violence, (2) plaintiff failed to provide a history of domestic violence, (3) plaintiff's restraining order was intended to assist her in her pending palimony claim, and (4) the order is contrary to public policy. We reject these arguments and affirm.

The parties were never married. They had a dating relationship and lived together for a time. They had three children together between 2003 and 2008. Their relationship ended on December 8, 2007, and defendant moved out of plaintiff's home at that time. Plaintiff continued to live there with the three children.

On February 26, 2009, plaintiff signed a domestic violence complaint against defendant and obtained a temporary restraining order. She alleged underlying acts of harassment and criminal trespass. More particularly, she described two incidents that had recently occurred, along with some background information and an allegation of one specific prior act of domestic violence. She alleged that on February 22, 2009 defendant told her he was going to pay Ms. Regina Zafonte $5000 to harass plaintiff for the next five weeks. Plaintiff further alleged that on February 25, 2009, defendant arrived at her home and spoke with her father, proceeding to curse at plaintiff, calling her a "piece of shit, a slut, a money whore and a fucking cunt."

Plaintiff alleged that shortly before these events she found footprints in the snow leading up to her front door, and when she woke up that morning the locks on her doors were open. She alleged a prior act of domestic violence, namely that in 2007 defendant hit her in the face.

The hearing on the domestic violence complaint was conducted on March 11 and 12, 2009. A court order was in effect regarding custody and parenting time. There was no contention by defendant that plaintiff ever wrongfully deprived him of his parenting time rights (except with respect to the February 22, 2009 incident). However, plaintiff contended that defendant was not making the required child support payments. Plaintiff had brought a palimony action, which was apparently hotly contested, and which was about to come to trial at the time of the domestic violence incidents.

Both parties were represented by counsel at the domestic violence hearing. Both parties testified, as did plaintiff's father. A summary of the evidence follows.

Regina Zafonte and plaintiff had a contentious history dating back several years. Defendant knew Zafonte before he knew plaintiff. Defendant described Zafonte as a friend. According to plaintiff, she was, at least at some time, defendant's girlfriend. There was some kind of financial relationship between defendant and Zafonte, which is not completely clear from the record. Checks were produced demonstrating that, from time to time, defendant made substantial payments to Zafonte. Defendant contended that he had borrowed $50,000 from her, and these checks were partial repayments of the debt.

In July 2007, plaintiff brought a complaint against Zafonte in the Manalapan Municipal Court alleging identity theft. As a result of that proceeding, an order was issued in December 2007 prohibiting Zafonte from having any contact with plaintiff. Plaintiff also contended she had a prior order of protection against Zafonte in Staten Island, before moving to New Jersey, "because [Zafonte] came to my house high on drugs and alcohol in a stolen vehicle threatening my life." Plaintiff described an event in Staten Island that resulted in plaintiff's incarceration based upon a fabricated story by Zafonte that plaintiff had assaulted Zafonte. According to plaintiff, the charges against her "got purged because it was a lie . . . and the Court knew that. It was a made up story."

In the weeks leading up to the specific domestic violence events, plaintiff woke up one morning noticing her doors were unlocked. She found footprints in the snow leading up to her patio door. Plaintiff found cigarettes in the area matching the brand smoked by Zafonte. Plaintiff changed the locks on her doors and reported the incident to the police. She was afraid for her safety, and began "sleeping on the floor with [her] kids locked in one bedroom with a cell phone by [her] hand with the Manalapan Police Department already queued to hit send and [her] house phone." Plaintiff said she had been sleeping in this manner since November 2008 out of fear from defendant, who admitted he had been having her followed from time to time. Although the judge made no specific finding that defendant or Zafonte were implicated in these events, they are nevertheless significant because they provide context supporting plaintiff's fearful state of mind with respect to defendant and Zafonte during this timeframe.

With respect to the alleged prior act of domestic violence, plaintiff said defendant slapped her, but "it was only like little" and "[i]t wasn't a big major thing." She said defendant "just was like so angry he just like went at my face." Plaintiff did not report the incident to the police and did not seek any restraining order. Defendant denied striking plaintiff. In making his findings, the judge commented on the incident and the conflicting testimony. He did not make a specific finding as to whether a physical striking occurred. He discounted the incident and said it would not play a role in his ultimate decision.

On Sunday February 22, 2009, defendant came to plaintiff's home to pick up the two older children to take them to the birthday party of another child in New York. The day before, plaintiff reminded defendant to make sure the seatbelts that secure the child seats in his vehicle were working properly. Apparently, on some prior occasion defendant had been issued a ticket for not having the child seats properly secured. Defendant admitted getting the ticket, but said it was dismissed. When defendant arrived on February 22, plaintiff observed that the seatbelts were broken and the child seats were not properly secured. Thus, she would not allow the children to go with defendant. According to plaintiff, defendant began ...


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