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K.C. v. J.K.

October 14, 2010

K.C., PLAINTIFF-RESPONDENT,
v.
J.K., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-304-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: July 20, 2010

Before Judges R.B. Coleman and C.L. Miniman.

Defendant J.K. appeals from a final restraining order (FRO) entered on August 27, 2009, barring him from the residence and places of employment of plaintiff K.C. and prohibiting him from having any contact and communication with plaintiff and her two daughters, K.G. and B.G. Because the conduct of the trial was fair and the evidence was sufficient to support an FRO, we affirm.

On August 22, 2009, plaintiff sought a temporary restraining order based on conduct which occurred on August 21, 2009. She alleged in her complaint:

The victim report[s] that since her divorce with the defendant in March of 2009, he has text messaged and called her repeatedly every day, always aware of her location and what she has done. On 8/21/09, he came to he[r] residence and attempted to gain access. The victim reported that she closed the door on him. The defendant was no[t] supposed to be at the victim[']s residence. The victim stated she feels she is being stalked by the defendant and is in fear of her life.

Plaintiff alleged that defendant's conduct constituted harassment and stalking. As to a prior history of domestic violence, she reported that after she married defendant, he became psychologically and physically abusive towards her although no reports were filed.

The evidence at trial established that plaintiff and defendant divorced on March 30, 2009. Prior to the divorce, defendant was contacting plaintiff more than she liked, and on two occasions she asked her attorney to instruct defendant to cease contacting her. The first letter, dated February 26, 2008, informed defendant that he was causing plaintiff significant emotional distress with his repeated telephone calls and instructed him to stop contacting her in any way. The second letter was mailed on October 17, 2008. Plaintiff's attorney warned defendant that if he did not cease his harassing behavior, plaintiff would have no choice but to protect herself with a court order.

Despite these two letters from counsel, defendant continued to text plaintiff at all hours of the day and night. If she did not answer the text messages, defendant would call her on the phone. When the second letter did not deter defendant's behavior, plaintiff and one of her daughters packed up her house and moved to a location unknown to defendant. Defendant, nevertheless, obtained plaintiff's new address and went to her new home. This behavior continued after the divorce on March 30, 2009.

In the thirty days preceding the hearing on the application for an FRO, defendant sent plaintiff hundreds and hundreds of text messages at all hours of the day and night. When plaintiff threatened to call her lawyer, defendant would leave her alone for a day or two; then he would start texting again, telling her where she was so that she knew he was observing her. He knew when she went to her daughter's house or to church, and she would sometimes feel like he was watching her. When she went out on a date the Friday before the hearing, defendant sent her a text message disclosing that he knew she was going out with someone. When she did not answer the text messages, defendant would call her. If she did not answer the phone, he would try texting and calling her again, and then he would come to the house. She told him not to call her, not to text her, and not to come to her house on a number of occasions in the month before the hearing.

On August 21, 2009, plaintiff was home with her daughters on a Friday night, and Alexis, her sister or friend, was there as well with her boyfriend. They were all getting ready to go out. Plaintiff had a date that night, and she had argued with her youngest daughter earlier that day. Plaintiff felt the tension had become too much and decided to stay home, so she called her date and cancelled their plans. After everyone left, plaintiff went to her room, put on her nightgown, went to the kitchen, got a glass of wine, and brought the wine back to her bedroom to lie down and read. Then, plaintiff heard a knock on the door and thought it might be her friend checking to see if she was all right. With that mistaken thought in mind, she opened the door and defendant was there. He had started to walk away from the door but stopped when it opened. Plaintiff told him it was not a good time and to please go away. Defendant came back toward plaintiff and she closed the door. That was the last thing she remembered until waking up the next morning to find blood and glass all over the bed. She was in a lot of pain and called 9-1-1. She was instructed to unlock the front door to let in the police. She was taken to one hospital and then taken to a different hospital for a rape test. Plaintiff was told that she had lacerations to her vaginal and anal areas, a hand-print bruise on her left leg, and evidence of anal penetration. Plaintiff testified that she was afraid of defendant and afraid for her life.

The judge then gave defendant, who was appearing pro se, an opportunity to cross-examine plaintiff. When defendant stated that he took issue with some of the things plaintiff said, the court explained that he would have a right to testify later, but this was his opportunity to cross-examine plaintiff. Defendant replied, "No, . . . I don't have any questions. I just have some statements that I would make." The court inquired whether it was correct that he had no questions of the plaintiff, and defendant replied, "Correct." At that point, defendant was permitted to testify.

Defendant stated that he was shocked and that he could not believe this had happened. The judge asked if he had received the two letters from plaintiff's attorney, and he agreed that he had received them. Defendant then testified to his version of events. He testified that before he received the first letter, plaintiff and defendant had an argument and that by the time he had received the letter the argument was over. He denied that he would continually text her, then call, and then go to her house. He said that happened only once. With respect to the second letter, he testified that they had a disagreement, and plaintiff would not answer the phone, so he went over to the house, which at the time was in both of their names. When he got to the house, they "had a little argument." He claimed it was only this incident that triggered the second letter.

Defendant also claimed that since October 2008 the parties had not had any problem, any argument, or any adversarial discussion at all. He admitted that he went to her church one time, and when she wanted to be left alone, he left. He admitted that after plaintiff changed churches, he followed her to the second church and went there "a handful of times at the most." When plaintiff protested his appearance at her new church following the October 2008 letter, he ceased going to her church.

Defendant testified that he had been paying plaintiff's bills and rent, buying her prescriptions and taking them over to her house for her, and buying her groceries. He denied ever going to the house without being invited. He denied obtaining her address improperly, claiming that she asked him to pick up a prescription and bring it to her home, which is how he learned of her new residence.

Turning to August 21, 2009, he testified that at the beginning of that week, plaintiff and her family were at his mother's shore home on Monday and Tuesday. Defendant agreed that she could go; however, after she went to the shore home on Wednesday, defendant's daughter said there were two beach chairs missing. Knowing that plaintiff did not want him to call her "much and stuff," he waited until Friday afternoon to call her. When he did not get an answer, he sent her a text message asking her to call him. He wanted to discuss the beach chairs because he was thinking of going to his mother's shore home on Saturday.

Defendant claimed that August 21 was the only time he had ever been over to plaintiff's home unannounced and uninvited. He said he knocked on the door, and plaintiff said that it was not a good time. He said he was just standing still and she just closed the door and that was all that happened. He said he did not even get to tell her that he was there to pick up the beach chairs. As he was leaving he saw the beach chairs sitting up by her sliding glass doors. He did not go up to get them because he did not want plaintiff to feel threatened; he did not want to press the issue.

Defendant denied texting plaintiff hundreds of times. He insisted that he did not text her more than ten to twelve times a week at the most. Defendant said he would never have done anything to hurt plaintiff. He denied trying to gain access to her home. He denied stalking her, denied knowing of her whereabouts, denied texting her inquiring about what she had been doing in specific places, denied ever texting that he saw her somewhere, and denied keeping track of her whereabouts or telling her that he did so. The only way he would know of her whereabouts was if she volunteered the information. After plaintiff's cross-examination, the judge gave defendant an ...


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