December 21, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-001102-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010 - Decided Before Judges Parrillo and Yannotti.
Defendant, W.M.L., appeals from the Family Part's February 25, 2010 issuance of a final restraining order (FRO) in favor of his ex-wife, plaintiff, M.L., under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. We affirm.
At the February 25, 2010 hearing, it was established that the parties were divorced in February 2003. Since then, according to plaintiff, defendant has driven by her home on a cul de sac three or four times a day for no legitimate reason, and for years has called her up to forty times a day on her cell phone, land line, office telephone or her friend's cell phone. These actions have caused plaintiff to feel unsafe in her home, bullied and intimidated.
The parties' daughter, C.B., who claimed to have been physically abused by defendant in her college years when defendant had a drinking problem, testified that defendant visited and called her at work, inquiring of plaintiff's whereabouts. C.B. also observed defendant drive by her place of employment, as well as plaintiff's office. C.B.'s husband, J.B., testified that defendant repeatedly called their niece, of whom they have custody, inquiring about plaintiff, her grandmother. J.B. also observed defendant "circle past" plaintiff's home and was not aware of any legitimate reason for defendant to be in the neighborhood.
Defendant denied making forty calls daily to plaintiff, but admitted to placing as many as ten calls per day. He also denied driving by plaintiff's home three or four times a day, although conceded doing so perhaps once daily. Defendant admitted to verbal abuse a "long time ago" when he was drinking.
At the close of evidence, the trial judge credited plaintiff's testimony, as well as that of her daughter and sonin-law, and found that defendant's actions qualified as the predicate offense of harassment, N.J.S.A. 2C:33-4. Reasoning that the issuance of an FRO was necessary to prevent further abuse under N.J.S.A. 2C:25-29(b), the trial judge concluded:
[M]y perception from my end is that the two of you - the testimony from the two of you is diametrically different.
[M.L.] has testified that she received in excess of 40 telephone calls . . . a day for literally years, and that three or four times [a] day and night you were driving by. You say no, and you say you were not making anywhere near that number of calls, and after I pressed you and pressed you, you finally said about ten calls maybe once in a while. You also said that you, it wasn't three or four times. I asked you if it was three, you said, well, it wasn't four and maybe it was three.
The point that I'm trying to get to, [W.M.L.], is that in my opinion I am called upon to make decisions about who I believe in given situations fairly frequently in this court, and it is not unusual in this court to have one person say black and one, the other person say white. That happens all the time, and I have to make a decision. In this particular case in my opinion [M.L.'s] testimony and [C.B.'s and J.B.'s] testimony is credible and believable, and your choice of words on numerous occasions leads me to believe that [M.L.'s] description factually of what was occurring here was in fact occurring here. It also convinces me - if I'm convinced that 40 telephone calls were made a day, I am convinced that that was made for the purpose of annoying or harassing her. If there were three or four times a day that you were driving by her home on a cul-de-sac, that's for the purpose of annoying or harassing. I find the predicate act of harassment has been established in this evidence.
I also find, based upon my ability to evaluate [M.L.], that there is a fear on her part that if an order is not entered under the Domestic Violence Act that there will be future acts of domestic violence and there will be future contacts. Therefore, I feel that [M.L.] is entitled to, under the law, a final restraining order, and I hereby issue a final restraining order.
We have considered defendant's challenges to this finding and are satisfied that they are not of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add, however, the following comments.
The Legislature enacted the Act "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Indeed, the Act's primary focus is to provide immediate protection to the victim. Ibid. A plaintiff seeking relief under the Act must first prove that a defendant has committed an act of domestic violence as defined by N.J.S.A. 2C:25-19(a). N.J.S.A. 2C:25-29(a); Cesare v. Cesare, 154 N.J. 394, 400 (1998). Once the plaintiff proves that the defendant committed one of the predicate acts, the court must then determine, based upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), whether issuance of an FRO is necessary to protect the victim from further abuse. Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006).
Here, the trial judge, after carefully assessing the veracity of the conflicting versions proffered and crediting plaintiff's account, as well as those of her witnesses, determined that defendant committed the predicate act of harassment upon plaintiff, which was, by itself, sufficiently egregious to warrant plaintiff's protection from further acts of domestic violence by the issuance of an FRO.
In a non-jury case, findings of fact by the trial court "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12; Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility[,]'" Cesare, supra, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)), because the trial court "hears the case, sees and observes the witnesses, hears them testify, and has better opportunity to judge their credibility than the reviewing court." Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961). Thus, the trial court maintains "a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988); State v. Locurto, 157 N.J. 463, 471 (1999) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). Because credibility is for the factfinder to determine, Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 495 (1956), an appellate court will not disturb fact findings on appeal unless they are "'so wholly insupportable as to result in a denial of justice.'" Rova Farms Resorts, supra, 65 N.J. at 483-84 (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). This is especially true in family courts, which have "special jurisdiction and expertise in family matters" that support a family court's ability to "'successfully balance the interests of society in deterring the evils of domestic violence and caring for families.'" Cesare, supra, 154 N.J. at 413 (quoting Brennan v. Orban, 145 N.J. 282, 304-05 (1996)). Moreover, an appellate court may also conclude that the factual basis for a decision is implicit in the trial court's ruling. Locurto, supra, 157 N.J. at 474.
We discern no reason to disturb the factual findings or legal conclusions reached by the trial court. Its factual findings were reached based upon "'sufficient credible evidence present in the record,'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting Johnson, supra, 42 N.J. at 162), and its legal conclusions are well supported in law. To sum, plaintiff's version was deemed credible by the trial judge and was also corroborated not only by her witnesses, but also by defendant's own admissions. As clearly demonstrated by that evidence, plaintiff was subjected to repeated and continuous unwanted communications by defendant, which by sheer dint of their volume, were likely to cause her "annoyance or alarm" within the meaning of N.J.S.A. 2C:33-4(a), (c). Moreover, our review of the record reveals substantial evidence from which to infer from the very nature of the conduct, namely repetitive and obsessive contact, that defendant acted with the requisite purpose to harass his former wife. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. McDougald, 120 N.J. 523, 566-57 (1990); State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995); State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478 (1978). And finally, we agree that the course of defendant's conduct, over plaintiff's expressed objection, was sufficiently egregious in itself to justify issuance of an FRO to protect plaintiff against any further harassment by defendant.
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