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M.L.S. v. B.J.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 5, 2010

M.L.S., PLAINTIFF-RESPONDENT,
v.
B.J., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, FV-05-000591-09.

Per curiam.

RECORD IMPOUNDED

FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 26, 2010

Before Judges Reisner and Chambers.

Defendant B.J. appeals from a June 24, 2009 final restraining order (FRO) entered based on a complaint filed by plaintiff M.L.S. We affirm.

I.

On June 9, 2009, plaintiff applied for and obtained temporary restraints under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. Her complaint alleged that defendant was harassing her by parking in front of her house late at night and playing loud music. She also alleged that he was stalking her by routinely driving past her house, calling her repeatedly, and spying on her. She asserted that the parties "broke up over 2 years ago" and plaintiff had told defendant "repeatedly that she does not want him to call her or come to her property."

The following testimony was presented at the hearing on the FRO application, at which plaintiff appeared pro se and defendant was represented by counsel. According to plaintiff, the parties had a previous dating relationship, which had ended. She testified that at 10:30 p.m. on June 8, 2009, she heard "music that was so loud it scared me . . . enough to make me jump out of my chair." Looking out her window, she realized defendant was sitting in his car in front of her house, playing music "extremely loud." He was playing a song that "had something to do with our relationship in the past." When plaintiff looked out the window, defendant "sped away" but "approximately 10 minutes later, he was back doing it again." She testified that defendant had "done this in the past."

According to plaintiff, the parties lived in the same neighborhood, and defendant would "repeatedly" stop by her house although she had "asked him not to." She testified that if she tried to ignore him he would make "harassing phone calls." Defendant told her that he had "taken notice of who's in my house by looking through the windows . . . to see who was there." Plaintiff testified that she found defendant's conduct frightening and annoying, and that she had previously asked him to stop it:

When he does it, . . . it's scary. I don't think it's rational behavior for him to be sitting in front of my home bothering me. . . . I want that to stop. I've had the police talk to him on . . . numerous occasions just asking him to stop this behavior. . . . All I want him to do is just to accept the fact that we are over. I do not want to speak to him anymore. . . . I don't want him keeping an eye on my home or trying to find out who has been in my driveway.

It scares me. It's very annoying.

On cross-examination, plaintiff admitted that she and defendant had previously lived together at her house, although she contended their romantic relationship had ended a year before the hearing. She admitted calling him on the phone from time to time in the past year. She admitted encountering defendant at a restaurant on April 10, 2009, and acknowledging him as he walked past her. However, she denied seeing defendant with a new girlfriend there or filing the domestic violence complaint as retaliation for his allegedly ignoring her. She agreed with defense counsel that defendant had never hit her.

Defendant's current girlfriend testified that in April 2009, she and defendant met at a restaurant where she worked as a server. As the girlfriend was sitting at a table counting her tips, defendant told her that plaintiff was in the restaurant. Plaintiff sat talking with "two gentlemen." The girlfriend noticed that plaintiff appeared to turn around and look at her several times, which made her feel uncomfortable. The girlfriend and defendant then left the restaurant.

Defendant testified that he and plaintiff had sexual relations "half a dozen times" over the past year, but that he now had a new girlfriend. He testified that plaintiff had called him "numerous times" over the past six months. According to defendant, on April 10, 2009, the caller i.d. feature on his phone showed that plaintiff had called him twice, but he did not answer the calls. He testified that he went to the restaurant to meet his girlfriend and encountered plaintiff. She greeted him and "said she had called me" but he refused to talk to her. According to defendant, "[t]here was no conversation."

Responding to his counsel's brief questioning, defendant generally denied ever threatening or hitting plaintiff. Asked, "[h]ave you ever done anything physically - to torment her or - or tell her in any way that you were going to do anything to hurt her?" Defendant responded "No, sir." Notably, defendant did not deny any of plaintiff's specific factual allegations. He did not deny appearing at plaintiff's house late at night with music blaring from his car. Nor did he deny telling her that he had looked in her windows to see who was visiting her. He did not deny making repeated harassing phone calls. He also did not deny that the police had told him several times to leave her alone.

In rebuttal testimony, plaintiff denied staring at defendant's girlfriend at the restaurant. She admitted that she had called defendant earlier that evening, but offered this explanation. She testified that several months earlier, defendant had dropped off "a huge load of uncut oak wood in my yard when I was not there," perhaps because he knew that she had a wood stove. However, the wood was not cut to a usable size. She called defendant because she was trying to clean up her yard before putting her house on the market, and she wanted defendant to remove the wood.

In an oral opinion placed on the record on June 24, 2009, the trial judge accepted as proven plaintiff's allegation that defendant repeatedly appeared at her house late at night playing loud music. He rejected the theory, articulated by defense counsel in summation but not testified to by defendant, that defendant was merely trying "to rekindle, at least temporarily, . . . the relationship." The judge credited plaintiff's testimony and found:

[T]here was no good reason for him to come and do what he did on that particular occasion. He knew or he should have known that that would alarm the plaintiff. She indicates that she was alarmed on this particular occasion. She's been alarmed in the past.

The judge also believed plaintiff's version of the April encounter at the restaurant, and her testimony that she phoned defendant to ask him to remove the wood from her yard. He also reasoned that "[t]he defendant's version is that very little happened" at the restaurant, and in any event, "the April incident is too remote in time for me to draw an inference that [plaintiff] was simply [filing the complaint in June] as pay back." He found that plaintiff "presents as credible and I believe that she's credible when she says she simply wants to be left alone."

II.

Our review of the trial judge's decision is very limited. We are bound by his factual findings so long as they are supported by substantial credible evidence, and we owe particular deference to the trial judge's credibility determinations. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Judged by those standards, we find no basis to disturb Judge Rauh's well-reasoned decision in this case.

In particular, we find no basis to disturb the judge's credibility findings. Defendant did not deny plaintiff's central factual contentions. Moreover, there was an inherent contradiction in the defense's attempt to explain away defendant's conduct. On the one had, defense counsel contended that plaintiff filed her complaint in retaliation, because defendant had a new girlfriend and he no longer cared about plaintiff. On the other hand, he argued that defendant's late-night appearances at plaintiff's house were an attempt to rekindle their romance.

On this appeal, defendant contends that the trial court erred in finding him guilty of the predicate act of harassment, and that peering in plaintiff's windows did not rise to the level of a violation of the Act. Having thoroughly reviewed the record, we conclude these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm for the reasons stated by the trial judge. We add the following comments.

Harassment is one of the predicate acts that can constitute domestic violence under the Act. N.J.S.A. 2C:25-19a(13).

Harassment includes "[making], or [causing] to be made, a communication or communications anonymously or at extremely inconvenient hours, . . . or any other manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4a. By repeatedly appearing at plaintiff's house late at night with "extremely loud" music blaring from his car, defendant violated that section of the harassment statute.

The statute also prohibits "[engaging] 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:33-4c. Plaintiff credibly testified that defendant made harassing phone calls, showed up at her house late at night playing loud music, and told her that he was peering in her windows to spy on her. He kept up this behavior even after she had the police warn him to leave her alone. Defendant engaged in a "course of alarming conduct" and the evidence supports an inference that he intended the result his conduct produced - to frighten and annoy plaintiff. Ibid.

Affirmed.

20100505

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