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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. ...