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D.S. v. R.A.


February 23, 2010


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

Per curiam.



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 yelling and screaming at her, said he was going to pay Zafonte $5000 to harass her for the next five weeks, and told her the next time he came to her house he would come with Zafonte.

It is clear from the record that as plaintiff was describing this incident she became emotional on the witness stand and required some time and assistance to calm down and regain her composure. Defendant denied the comment about paying Zafonte $5000 to harass plaintiff. He did not deny saying he would come to plaintiff's house the next time with Zafonte, giving as his justification that if plaintiff was not happy with defendant's car, he would have Zafonte come with him from then on to pick up the children in her car. The judge credited plaintiff's version of the incident. Because of this incident, plaintiff's fear of defendant and Zafonte deepened.

Wednesday, February 25, 2009 was a regularly scheduled date for defendant's parenting time. Plaintiff had told her father about defendant's threat to bring Zafonte to her home. Her father came to her home and was there when defendant arrived. Zafonte was not with defendant. Plaintiff's father greeted defendant in the driveway. Their conversation began calmly, but soon escalated into a shouting match. Plaintiff was standing in the doorway, about four feet away from them. It was then that defendant shouted the epithets against plaintiff, using the words expressed in her complaint. Defendant admitted the first three names, but denied using the fourth. Defendant also said that plaintiff was not present during this exchange between him and her father. He acknowledged his intention to "hurt" and "annoy" plaintiff's father, but denied any intention to harass or annoy plaintiff.

According to plaintiff, she actually joined in the verbal confrontation. At one point, defendant invited plaintiff's father to punch him if he wished. Fortunately, plaintiff's father did not do so, and no blows were exchanged. At that point, however, plaintiff said to her father, "Daddy, please, he's not worth that." Plaintiff then went inside to get her oldest child, who was supposed to go with his father for parenting time. However, defendant got in his vehicle and drove away. The judge credited plaintiff's version of the incident, including that she was nearby and within earshot of defendant's vile comments which, although purportedly directed at plaintiff's father, were intended to be heard and were heard by plaintiff.

An incident that occurred in the courtroom in the presence of the judge during the hearing is worth noting. After cross-examination of defendant was completed, and both attorneys advised the court they had no further questions, the following exchange occurred:

THE COURT: Okay. You can step down sir.

THE WITNESS: Did you forget to ask me about the 2007 --

THE COURT: No, whoa, wait a second.



THE WITNESS: You didn't ask me about when I hit her.

THE COURT: All right.

COURT OFFICER: Sir, compose yourself.

[DEFENDANT'S ATTORNEY]: Richard, you can't talk like that.

THE WITNESS: Sorry. I'm sorry, Your Honor.


(Witness excused)

It is difficult from the cold record to fully appreciate what happened here. After both counsel made their summations, the court described it this way:

But it's funny, the one thing that impressed me at -- in this case was the thing that just happened right at the end of the case, and that was [defendant] making that outburst, and that leads me to believe that I don't believe that he's going to be able to control himself because this thing is just going to escalate further and that's what I'm concerned about. And I will tell you that prior to that I was considering dismissing this DV and fashioning an FM order. I'm just not so sure right now because again, I just have a feeling that we're going to continue to escalate, escalate, escalate until something really bad may happen, that's going to result in criminal consequences.

The judge then took a recess to review his notes. When the proceeding resumed, and in the course of setting forth his detailed findings, the judge commented on this incident further as follows:

And the last thing, and I said this before I went out, I just don't --unfortunately, I believe that [defendant] he's angry, and he has an anger problem. He should not have acted out the way he just did and again, that was a threatening made -- behavior made, whether it was to [plaintiff's attorney] or on -- right in front of [plaintiff], that doesn't impress me as far as credibility goes. It clearly does not.

At the end of the State's case, the judge had granted defendant's motion to dismiss that aspect of the complaint that alleged criminal trespass. He denied the motion with respect to harassment, and his ultimate determination included a finding that defendant's conduct on February 22 and 25, 2009 constituted harassment.

The judge reasoned that whether or not defendant said he was going to pay Zafonte to harass plaintiff, the undisputed fact that defendant said he would bring Zafonte to plaintiff's home the next time he was coming for parenting time had the effect of annoying, alarming and harassing plaintiff. The judge said, "That is clear to me. It would not be said for any other purpose." With respect to the second incident, the judge found that the vile names defendant called plaintiff were made while "she was in the doorway and within earshot of all of this," as a result of which "it was clear if she's that close, they were said to her -- to her father, it's the same -- to me, it's the same difference." The judge concluded that the words used in the second incident and the context in which they were exclaimed in anger were "clearly more than marital contretemps. This is not a marital contretemps situation, because it's clearly a situation that's escalating." The judge was satisfied that plaintiff proved that hearing these words shouted in anger, against the backdrop of the prior events, clearly had the effect of "harassing and causing more -- more discomfort to her, alarmed her, and again, could put her in a continued state of a fact that she would be in fear of the -- of the defendant."

The judge found a significant likelihood that, without a restraining order, this conduct will continue and continue to escalate, and it escalated right in front of me. So if I don't enter this order, I'm concerned for -- I'm concerned for [plaintiff]'s safety, and not only her physical safety, but her mental safety, her mental health. And I think that that, and looking at her, and you know, having that done right in front of her, in front of me, is the worst thing that you [referring to defendant] could do. [Emphasis added.]

The judge therefore concluded that both required prongs for issuing a restraining order were proven. The order was entered and this appeal followed.

A person is guilty of harassment who, with purpose to harass another,

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

. . . . or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4.]

In the context of a domestic violence case, in addition to considering the discrete elements of the predicate offense, the court must also consider additional factors. These include the existence of immediate danger to the victim and the best interests of the victim. Cesare v. Cesare, 154 N.J. 394, 401 (1998); N.J.S.A. 2C:25-29a(2), (4).

We will not interfere with a trial judge's findings of fact when supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, the findings and conclusions of a trial judge are entitled to enhanced deference in family court matters, given the special jurisdiction and expertise of family court judges in such matters. Cesare, supra, 154 N.J. at 413.

Applying these principles, we have no occasion to interfere with the findings and conclusions Judge English reached in this case. He had the opportunity to observe the witnesses and assess their credibility and demeanor. Those observations included an angry outburst by defendant, which fortified the judge's finding that defendant has an anger management problem. Because of the history of events leading up to the specific incidents involved, that was a critical finding and is entitled to our enhanced deference. The judge's findings support the conclusion that defendant's conduct constituted harassment because defendant engaged in a course of alarming conduct with the purpose to alarm or seriously annoy plaintiff and he made a communication to her in offensively coarse language with the purpose to harass her.

In addition to proving a predicate offense, entitlement to a domestic violence retraining order also requires proof that such an order is needed to protect the plaintiff's health and well-being in the future. Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). The judge's finding on the second prong is also supported by the record, especially in light of his assessment regarding defendant's anger management problem and the escalating nature of defendant's conduct toward plaintiff.

Defendant relies on a series of cases in which a single incident, deemed relatively minor, without a prior history of domestic violence, was found insufficient to satisfy the second prong, even if a predicate act were established. This reliance is unpersuasive. As we have set forth, there was a considerable history leading up to the incidents of February 22 and 25, 2009. That history was all interrelated with the incidents that transpired on those two dates. Further, defendant engaged in harassment on both dates. This is not a single-incident case, and, in the overall context, neither of these incidents was insignificant.

The arguments defendant raises in Points III and IV lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). The judge did comment upon the monetary aspects of the pending palimony action, which he was managing and with which he was fully familiar, thus negating defendant's contention that the judge failed to mention any relationship between the two actions or to give sufficient weight to the relationship between the actions. Defendant's argument that public policy will be violated by upholding this order because the courts will be flooded every time there is a minor argument and because free speech will be inhibited is plainly lacking in merit.



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