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D.S. v. M.G.

July 16, 2010

D.S., PLAINTIFF-RESPONDENT,
v.
M.G., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-ll39-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 7, 2010

Before Judges Yannotti and Chambers.

Defendant M.G. appeals from the order of July 15, 2009, denying his motion for reconsideration of a final restraining order entered against him on February 18, 2009, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

Plaintiff D.S. had initially filed a domestic violence complaint that was dismissed by a judge who did not find plaintiff to be a credible witness. Plaintiff then filed a second domestic violence complaint against defendant. At the final hearing, conducted by a different judge, she submitted evidence presented in the earlier adjudication as well as evidence of events which had occurred after the earlier adjudication. The second trial judge concluded that defendant had engaged in harassing conduct after the first adjudication and issued a final restraining order against him.

On appeal, defendant contends that admission of the proofs rejected at the earlier hearing was error. Defendant also maintains that the proofs submitted in support of the second domestic violence complaint do not support the final restraining order issued by the second judge. In addition, he challenges the award of attorney's fees to plaintiff.

We agree that the alleged incidents of domestic violence rejected by the first trial judge were inadmissible in the hearing on the second domestic violence complaint. However, admission into the record of this evidence was harmless error because the second trial judge expressly stated that his findings of domestic violence were based solely on defendant's conduct that occurred after the first domestic violence hearing.

We conclude that defendant's conduct after the first hearing, as found by the second trial judge, is sufficient to support a finding of domestic violence under the circumstances here. We find no abuse of discretion in the trial court's allowance of attorney's fees. We affirm.

I.

We will briefly discuss the first domestic violence proceeding between the parties. On December 15, 2008, plaintiff filed a domestic violence complaint against defendant and received an ex parte temporary restraining order. At the hearing for a final restraining order, plaintiff appeared pro se and defendant was represented by counsel. Plaintiff testified that the parties had a dating relationship and had lived together until August 2008, when defendant moved out. She testified that during the time period from May to August 2008, defendant had started to throw things, he broke chairs in her kitchen, he threw a beer bottle at her, and he elbowed and pushed her. After he moved out in August, he would call her at work and at her home about $700 that she owed him on a PSE&G bill as well as money she owed him for a storage unit rental. He also was attempting to continue their dating relationship. She testified that sometimes the calls were cordial and other times they were not. On occasion, he followed her. She claimed that defendant said that if he saw her with another man, he would kill them both.

The first trial judge did not find plaintiff's testimony credible. The judge noted that plaintiff owed defendant $700 and found that the calls defendant made to plaintiff were not done with the purpose to harass her, but rather were made in an attempt to collect the money. The judge further noted that plaintiff called defendant as frequently as he called her and that, after defendant had moved out, they had Thanksgiving dinner together. The judge described the situation as "a break up that neither party has let go." The judge did not find credible plaintiff's claims that defendant was following her around or that she was worried that he would harm her if she were seen with someone else. He concluded that the restraining order was being sought in order to stop defendant's collection efforts. As a result, by order dated January 5, 2009, plaintiff's domestic violence complaint was dismissed.

When setting forth this decision on the record on January 5, 2009, however, the trial judge made clear to defendant that plaintiff did not want any further contact from him and that if he did so, the outcome of the next ...


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