On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-189-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011 - Decided Before Judges Lisa and Alvarez.
Defendant appeals from a final restraining order entered against him under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff. The predicate offense was harassment (N.J.S.A. 2C:33-4). See N.J.S.A. 2C:25-19a(13). Defendant argues that entry of the order was error because (1) the court abused its discretion by finding harassment based on the events of July 21, 2009, (2) the court abused its discretion by finding that defendant stalked plaintiff on July 21, 2009, (3) the court abused its discretion by retrying the incidents of a prior restraining order which had been dismissed after a prior hearing, (4) the court abused its discretion by determining that defendant should have only supervised parenting time with the parties' children, and (5) plaintiff forum shopped when she obtained a temporary and final restraining order in Ocean County.
We note initially that points (2) and (5) lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As to point (2), although the judge discussed the concept of stalking in rendering his decision, he was using the term generically and in the context of a characteristic of controlling behavior, but the judge did not make a finding that stalking was a predicate offense under the Act. As to point (5), defendant's assertion of forum shopping is purely speculative. We also note initially that the argument in point (4) is moot because, since the entry of the final restraining order in the matter now before us, a divorce action has been filed and the parenting time arrangements have been modified by the court in the divorce action and will continue to be subject to further modification in that action. Therefore, we will not address the parenting time issue in this opinion.
We reject the arguments defendant raises in points (1) and (3). Accordingly, we affirm the order under review.
The parties were married on June 23, 2000. They had three daughters, who were born in 2003, 2006, and 2008. They lived in Wayne, Passaic County.
Plaintiff filed the domestic violence complaint that is the subject of this appeal on July 21, 2009. The complaint alleged the following predicate act, identified in the complaint as "harassment:"
On 7/21/09 defendant contacted via cell phone the plaintiff and verbally harrassed [sic] her by calling numerous times and at all hours. Plaintiff advises defendant has a long history of mental health issues and is in fear of his possible actions.
The "prior history of domestic violence" section of the complaint alleged that a "TRO was issued prior but was dismissed at final hearing."
The complaint resulted in the issuance of a temporary restraining order by the Manahawkin Municipal Court, in Ocean County. The matter came before Judge Arnold B. Goldman in the Family Part on July 30, 2009 for a final hearing. Both parties testified. Plaintiff also produced the testimony of her cousin and of defendant's sister. Defendant produced a character witness. Plaintiff was represented by counsel. Defendant represented himself. Over defendant's objection, plaintiff was permitted to testify regarding the events that led up to the prior restraining order that had been dismissed after a final hearing. We begin our description of the relevant facts by describing those events.
The parties and their children went to Disney World in May 2009. While there, on May 9, 2009, defendant became very argumentative and verbally abusive toward plaintiff. He called her a "f---ing idiot" several times and a "fat, ugly b----." Defendant yelled at their six-year-old daughter at one point, and said demeaning things about plaintiff in the children's presence. For example, when the six-year-old child incurred a very minor injury while sliding into a pool, defendant became enraged and required the child to go to bed at about 4:00 or 4:30 p.m. While doing so, he told her that "when mommy and daddy get home, we're not living together." The child became upset and began to cry. Defendant told her he wished he never married plaintiff and wished they had never had the children. He proceeded by saying to plaintiff that she should tell their six-year-old how plaintiff wanted to "kill" the youngest child. This was a reference to the fact that when plaintiff learned she was pregnant with the third child she considered terminating the pregnancy. Plaintiff urged defendant to stop talking about this subject in front of their daughter, because she was becoming more and more upset.
Another Disney World incident prompted "about nine hours worth of argument" during which defendant was extremely abusive toward plaintiff. Apparently the older two girls had their first experience going in a swimming pool on previous trips to Disney World. During this trip, the youngest child was ten months old, and she was going to follow in this tradition. Defendant was sleeping in the hotel room. Plaintiff took the girls down to the pool. Before going, plaintiff and the girls attempted to wake defendant up, but unsuccessfully. Plaintiff then called defendant several times from the pool. Defendant became "very angry with [plaintiff] thinking [she] would put [the youngest child] in the pool without him." Plaintiff did not put the ...