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M.D. v. J.I.

July 20, 2010

M.D., PLAINTIFF-RESPONDENT,
v.
J.I., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, No. FV-06-0604-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 24, 2010

Before Judges Cuff, C.L. Miniman, and Waugh.

Defendant J.I. appeals a Final Restraining Order (FRO) entered on December 24, 2008, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, barring defendant from plaintiff M.D.'s residence, place of employment, and any and all locations where plaintiff may be found, and restraining him from having any contact with her. We affirm.

I.

On December 15, 2008, plaintiff filed a Domestic Violence Civil Complaint seeking a temporary restraining order (TRO) against defendant in the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County. She alleged that defendant came to her place of employment and wrote "Fuck you, Carol" in five places on shelves above the de-icer windshield wiper fluid. She alleged a prior history of domestic violence in 2003 when defendant assaulted and harassed her and their children. Additionally, defendant had threatened to kill her and bury her in the backyard. Finally, he had punched holes in the wall. That day, a Family Part judge granted the TRO and scheduled a hearing for December 24, 2008.

The hearing took place as scheduled, and at the conclusion of the hearing, the trial judge issued an FRO. At the time of the hearing, the parties were engaged in separate litigation with the Division of Youth and Family Services (Division) under docket number FN-06-39-09.

Plaintiff and defendant have two children, twins born in 1997, and had previously resided together. Plaintiff had been employed at Wal-Mart for approximately three years. Her middle name is Carol.

On November 6, 2008, plaintiff found the words "Fuck you, Carol" written in marker multiple times around her work area. She felt scared after seeing the writings and thought that defendant could be hiding in the store. She took five photographs of these writings.*fn1 Five weeks later, plaintiff and defendant appeared in court for a hearing involving the Division. Defendant admitted to writing the language during that hearing. That admission caused plaintiff to file the Domestic Violence Civil Complaint.

During the December 24 hearing, plaintiff testified to the events of November 6 and previous instances of domestic violence with defendant. She testified that defendant had previously hit her, threatened her many times, and choked her with a telephone cord while she was calling the police. Defendant said he would kill her before the police arrived and would put her body in the backyard. Plaintiff wanted defendant to leave her alone. She acknowledged on cross-examination that she dropped the previous domestic violence restraining orders related to these events, because she "fell for his lies . . . all the time." Defendant would "sweet talk [her] and say he'd never do it again. He loved [her], he wanted a family. And [she] fell for it and [she would] end up dropping the charges."

Defendant testified and denied writing the language. He claimed that a person named Sharon Fish wrote it. He testified that he only admitted to writing the language during the December 15 Division hearing to get to the main issue of visitation with his children. Defendant thought "a Final Restraining Order for a couple of F you's with a magic marker is pretty severe." He beseeched the judge to grant him ten minutes of visitation that day. On cross-examination, defendant admitted that the judge in the Division litigation stated he would order a handwriting analysis of the signs to determine whether defendant was the author, and then defendant, who had denied writing the signs, admitted he had done so. Defendant said that he and Fish talked about the language, but denied asking Fish to write it.

Fish was the final witness to testify. She and defendant were in an intimate relationship at the time of this hearing. Fish admitted to writing the language, saying she wrote it because of what was happening between the parties and defendant's lack of visitation with their children. Fish was on crutches due to ankle surgery at the time of the incident and still on crutches at the time of the hearing.

After hearing the testimony, the trial judge granted the FRO. The judge found plaintiff credible and observed that she was actually scared as she described the history of domestic violence. He determined that the prior history "puts the current circumstances in an appropriate context and it is relevant in the overall assessment of this case." The judge rejected the testimony of Fish as not credible. He found defendant's admission in the Division litigation, before he had an opportunity to consider its consequences, to be the truth and found that defendant wrote the words at plaintiff's place of employment. He found that the communications were "made with the purpose to harass and ...


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