On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1493-09.
The opinion of the court was delivered by: Timothy J.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically February 3, 2011 -Decided
Before Judges Parrillo, Espinosa and Skillman.
Defendant appeals from a final restraining order entered against him on the ground of harassment. We affirm.
Plaintiff filed for and obtained a temporary restraining order based upon allegations of harassment and criminal mischief on January 19, 2009, based upon events of the preceding weekend. By way of background to those events, the parties were engaged in what can fairly be described as protracted and acrimonious matrimonial litigation. However, in November 2007, they agreed to share custody of their children and possession of the former marital residence on a fifty/fifty basis. Pursuant to this arrangement, each lived at the house for three and one-half days of the week with their children, and then left one hour before the arrival of the other to assume residence. In this way, they existed, without incident or seeing each other, for a substantial period of time.
On Friday, January 16, 2009, plaintiff received a copy of an order in response to motions each party had filed to change the fifty/fifty arrangement.*fn1 The order granted plaintiff exclusive possession of the residence and directed defendant to pay the carrying costs. Plaintiff testified that she sent defendant a text message to inform him about the order and that she would have their twin sons ready to be picked up at eight or nine that evening. She then picked up the boys from basketball practice and also told them that the judge had decided that she would stay in the house full-time; that they would still see both parents the same amount of time but they would spend their time with their father away from the home. She dropped the boys off at a basketball game after dinner and again sent a text message to defendant to let him know that the boys were at the game, would call him when it was over, and that she would leave their bags on the front porch.
At approximately 9:00 p.m., defendant arrived at the house; the parties' older son arrived in a separate car with the younger twin boys. One of the younger boys called plaintiff on the phone and accused her of lying to them, which she denied. Plaintiff testified that the boys returned to the car before she could open the door; defendant testified that she refused to open the door. Defendant called the Woodbridge police. Plaintiff showed the police officer the court order. He in turn showed the order to defendant. Plaintiff testified that defendant was "very enraged . . . very angry and he screamed right away" that he wanted to see the judge's signature. She stated further that he started to scream that he would take her back to court and not return the boys home on Sunday night. Plaintiff got upset, started to cry and turned to the police officer for help. The officer told her to go into another room while he spoke to defendant. He remained at the home for approximately twenty minutes after defendant left with the boys.
On the following day, defendant was present at their twin boys' afternoon basketball game. Plaintiff gave the following account of what transpired. She testified that she asked a friend to go with her to the game because she was frightened to go alone; that she knew defendant's state of mind and that he was very angry. When they arrived at the gym, it was quite crowded; everyone was sitting in one set of bleachers. They found a spot in front of two women that plaintiff knew. One of the women moved her handbag to give them a seat. Plaintiff stated that, just as she was sitting down, she heard defendant "screaming down verbally abusive words from the stands at [her] immediately."
[T]he first thing he screamed down was pig, real loud, pig. And I, I was uh, shocked and stunned as everyone else in the stands, these are all people that we have been going, these are all parents around us that we have been - - our children have been playing basketball with since like fifth grade you know, it was quite alarming. So he screamed down pig and then he screamed down, you're a whore, you're a slut, and you're a f___ing bitch, he just kept going. It was - - he was not stopping. He was enraged. He was furious. He was not stopping. Plaintiff did not stay at the marital residence that evening. When she returned on the following day, there was a dead cat, its head smashed, lying on the trunk of her car, and the front picture window of the house was shattered.
Defendant testified that he called the police on January 16 when plaintiff would not open the door and that the first he heard of the order granting her exclusive possession of the home was that evening when the police officer showed it to him. He had neither asked for nor agreed to such an arrangement. He agreed that he demanded to see the judge's signature but, in contrast to plaintiff's description of his behavior, he testified that, after seeing the judge's signature, he said there is nothing that he can do and that he just left. Regarding the basketball game, he said that the gym was three-quarters empty when plaintiff chose to sit a short distance away from him. He admitted calling her "some bad names" but maintained that he was not angry, despite the fact that he had said so in an earlier certification. He said that he "was just very upset and concerned for [his] children." Defendant also denied putting the dead cat on plaintiff's car or breaking the window.
Plaintiff also testified about prior incidents of domestic violence. She described an incident in July 2007 in which she arrived at home, defendant opened the car door and repeatedly kicked her in the thigh and shoved her back in the car when she tried to get out. The police were called. She filed a complaint and, according to the ...