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J.H. v. G.H.

April 7, 2010

J.H., PLAINTIFF-RESPONDENT,
v.
G.H., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Warren County, Docket No. FV-21-570-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2010

Before Judges Messano and LeWinn.

Defendant G.H. appeals from a final restraining order (FRO) issued in favor of plaintiff J.H. pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Defendant contends that the trial judge erred because "the predicate act upon which the temporary restraining order [(TRO)] was issued did not constitute an act of domestic violence." We have considered this argument in light of the record and applicable legal standards. We affirm.

The parties were married on September 23, 1995; plaintiff filed a complaint for divorce on February 19, 2008, alleging extreme cruelty. Three days later, she filed an order to show cause in the Family Part under the FM docket seeking, among other relief, sole possession of the marital residence. In her certification, she claimed that defendant threatened to take the couple's eleven-year old son out of New Jersey; that defendant posed a risk to her and her son because of his drug use and penchant for firearms that were kept in the home; and that defendant suffered from psychological problems that manifested themselves in threats of suicide.

On March 4, defendant filed opposition and a cross-motion. In his certification, he claimed that plaintiff had recently suffered "her fourth nervous breakdown" in the last year due to emotional stress caused by her father's recent death. Defendant also claimed that plaintiff's brother, M.R., was instigating trouble between the couple in an effort to force defendant out of the home so that M.R. could "settle in with his sister and live quite comfortably for an extended period of time."

Defendant admitted he was a gun collector, but claimed that he had no access to any of the weapons since February 2007. Because of plaintiff's concerns at that time, he agreed to lock all the weapons in safes. He certified that only M.R. knew the combinations. However, after he was served with the divorce complaint, defendant made arrangements to have the guns delivered to his father's home in Pennsylvania, where they remained in the safes and inaccessible to anyone in the marital home. Among other things, defendant's cross-motion sought an order removing M.R. from the parties' home.

After a hearing on March 7, 2008, the judge entered an order on March 10 maintaining the status quo with respect to a number of financial issues; requiring both parties to submit to drug and alcohol screenings; and converting the remaining requests for relief into a motion returnable on March 20.*fn1 The order did not grant or deny plaintiff's request that defendant be removed from the marital home, and it required further certifications from both parties on the remaining issues.

Plaintiff filed her supplemental certification on March 12. On March 13, plaintiff applied for and received a TRO under the Act. In her complaint, she alleged that defendant had engaged in threatening conduct beginning in January and culminating that day when she discovered that defendant had possession of "numerous guns that were supposed to be locked up." Plaintiff alleged that these events amounted to harassment, N.J.S.A. 2C:33-4. Regarding prior incidents of domestic violence, plaintiff referenced those "reported" to the judge on March 7, the date of the hearing on her order to show cause in the matrimonial case.

On March 20, plaintiff filed an amended complaint under the Act "for the sole purpose of supplementing the events set forth in the original [c]omplaint...." In the amended complaint, plaintiff listed other incidents of alleged domestic violence. Included in that list were references to a prior restraining order issued against defendant in favor of his prior wife, C.H., in Pennsylvania in 1993. The complaint indicated that defendant had threatened his prior wife with a gun, physically abused her, and raped her.

The domestic violence trial commenced on April 3 before the same judge who heard plaintiff's application for an order to show cause in the divorce action. Plaintiff's son from a prior relationship, M.T., testified that on March 11, he drove with defendant to his father's home in Pennsylvania to deliver a chair. Along the way, defendant told him that a friend had "busted in[to] the safes" so that defendant now had access to the weapons. M.T. did not immediately tell plaintiff about the conversation. He believed defendant wanted M.T. to tell his mother that the safes were now accessible in order to "intimidate" her. On March 13, however, M.T. became aware that his uncle, M.R., had been arrested in an altercation with defendant. That day, M.T. told his mother about his conversation with defendant regarding the weapons.

Sergeant Todd Pantuso of the Washington Township Police Department responded to the parties' home during the early afternoon hours of March 13. He testified that he was met by defendant who claimed that M.R. was in the house and had threatened him with a gun. Pantuso questioned defendant about the weapon; he admitted it was his, and that M.R. had retrieved it from a briefcase in the basement.*fn2 M.R. was arrested. Plaintiff was not present during the incident, but arrived while the police were still at the home.

Several hours later, plaintiff responded to police headquarters seeking a domestic violence TRO. Patrolman Phillip Smith testified that plaintiff claimed to be in fear and described a number of threatening statements defendant had made to her since January. Smith then went to defendant's office to serve him with the TRO and advise him that pursuant to its terms he intended to search for any weapons. Defendant initially denied that he had any, telling Smith, "all of the guns [a]re locked up in a safe at [my] father's house in Pennsylvania." Smith repeated the inquiry; defendant responded, "I'll save you guys the time... and make it easy"; he told Smith that he had three handguns in his office. Smith retrieved them from an unlocked cabinet; the weapons were unsecured and loaded.*fn3

Plaintiff testified that on March 13, she arrived at her home around 1:30 p.m. and was restrained from entering the house by a number of police officers. M.T., who was in New York City, called her; he was aware of the police activity because a friend had called him on his cell phone. M.T. told his mother about the March 11 conversation he had with defendant regarding the gun safes. Plaintiff was "terrified" by the news because defendant "had been very violent in the ...


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