On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-2041-10.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 11, 2011 - Decided Before Judges Carchman and Graves.
Defendant Bruce D. Dawson appeals from an April 28, 2010 Final Restraining Order (FRO) restraining defendant from, among other things, having any contact with plaintiff H.L.W. or her children. The FRO was entered pursuant to the Prevention of Domestic Violence (DV) Act, N.J.S.A. 2C:25-17 to -35 (the Act). We affirm.
These are the relevant facts adduced at trial. Plaintiff and defendant met when plaintiff purchased defendant's boat hauling business in July 2006. The parties commenced a dating relationship in January 2007, which plaintiff ended in December 2008. After January 2009, the parties continued to have contact, as defendant continued to refer boat hauling calls to plaintiff; however, their relationship soured, and at the time of the alleged DV complaint, the parties were actively litigating a breach of contract claim.
In June and July 2009, plaintiff filed DV complaints against defendant resulting in the issuance of Temporary Restraining Orders (TRO), which were subsequently vacated after trial. Another complaint was filed on September 14, 2009, alleging that defendant stalked and harassed plaintiff. After the issuance of a TRO, plaintiff agreed to dismiss the pending FRO by execution of a consent order entered on October 19, 2009. The order, executed by both parties, provided that: "Defendant is hereby restrained from contacting, communicating directly with or through a third party the Plaintiff and her family members and employees." The order also restricted defendant from entering or being within one thousand feet of two specific addresses and Causeway Boat Rentals.
Plaintiff filed another DV complaint against defendant on April 19, 2010. In this complaint, plaintiff alleged that on the evening of April 17, 2010, defendant approached her while she was out with a friend, Robert, and would not leave when asked to do so. Plaintiff also claimed that as she and her friend left, defendant took pictures of her friend, and later followed plaintiff while she was driving. Defendant filed a DV complaint against plaintiff four days later on April 23, 2010, also based on events that occurred on April 17, 2010. Specifically, defendant alleged that plaintiff was waiting outside of a bar to see him on April 17.
At the hearing on the cross-complaints, plaintiff indicated that she was having dinner at the Gateway Restaurant in Ship Bottom with her friend when defendant walked into the restaurant. She was standing at the bar talking to a client when defendant entered and looked at her. She and defendant made eye contact, and defendant proceeded to walk over to where Robert was seated at the bar. Defendant denied seeing plaintiff when he entered the bar.
According to Robert, he turned his back to defendant when defendant entered, but defendant sat one seat away from him at the bar. Robert turned to defendant and told him, "You can't be in here. Look, she's right there." In response, defendant looked at plaintiff, who had walked over to where Robert was sitting and shrugged his shoulders without making a verbal response. Defendant denied shrugging his shoulders but agreed that he did not respond.
After defendant refused to leave, plaintiff and Robert left for another restaurant in Surf City, approximately one mile away. Plaintiff had parked approximately twenty feet from the only entrance to the Gateway restaurant. When leaving the restaurant, plaintiff took pictures of the location of her parked car and defendant's parked truck to show that defendant had to walk past her car on his way into the restaurant. Additionally, defendant admitted to taking a picture of Robert outside the restaurant when Robert and plaintiff left.
Three hours later at about 10:00 p.m., as plaintiff was driving past the Gateway Restaurant to proceed home from Surf City, defendant pulled out of the restaurant parking lot and followed her for approximately a quarter-mile before turning off the road. There was no additional contact between defendant and plaintiff. Robert indicated that unbeknownst to plaintiff, he followed her when she left the Surf City restaurant, he saw defendant pull out of the Gateway restaurant and follow plaintiff as she drove by the restaurant.
Defendant admitted that he knew that plaintiff was driving a silver Honda with a certain license plate that evening. He stated that it was a coincidence that he was driving behind her when leaving Gateway, as he was on his way to his home located approximately one block from the restaurant. Both Robert and plaintiff discussed the possibility that defendant would be at the Gateway prior to going there, and they agreed to leave in the event that he appeared.
In addition to the contact on April 17, plaintiff and Robert both indicated that defendant called Robert seeking information about plaintiff, an allegation that defendant denied. Plaintiff also indicated that defendant tried to contact her through her business's Facebook page three times between March 13 and 14, 2010. Finally, plaintiff noted that she was afraid of defendant, and he would not leave her alone.
Other witnesses corroborated plaintiff's complaint that defendant makes unwanted contact with her. According to Robert's son, S.B., approximately two weeks prior to the hearing, defendant stated that he would not leave plaintiff alone. S.B. observed defendant drive past plaintiff's home, which is located on a dead-end street. Z.D., plaintiff's son, confirmed that he witnessed defendant approach his mother at a marina during summer 2009.
Defendant conceded "that there [was] a pattern of unwanted contact" prior to the April 17 incident; however, he claimed that plaintiff and her children drove by his house "several times," and that this was the basis of his April 2010 DV complaint against plaintiff in addition to the April 17 incident. Defendant agreed, however, that "in [plaintiff's] defense, if she's coming on Long Beach Island and coming off Long Beach Island, she has to drive by my house on some of those occasions[,]" and that he did not know whether she was just passing by or "stalking" him. As to the April 17 incident, defendant admitted that plaintiff was already in the bar when he arrived, despite stating in his complaint that he arrived at the Gateway bar prior to plaintiff.
Following trial, the trial judge dismissed defendant's complaint as meritless. As to plaintiff's complaint, the judge noted that both parties acknowledged "a substantial prior history of inappropriate actions that could constitute harassment . . . ." The judge assessed the credibility of H.L.W., Robert and Dawson regarding the evening of April 17, and concluded that defendant's actions on that date constituted harassment. He issued the FRO, and this appeal followed.
On appeal, defendant raises the following issues:
POINT I THE TRIAL COURT'S FINDING THAT MR. DAWSON COMMITTED THE PREDICATE ACT OF HARASSMENT ON APRIL 17, 2010 WAS CONTRARY TO CONTROLLING LEGAL PRINCIPLES AND WAS NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE.
A. The Trial Court's Finding that Mr. Dawson acted with the Intention to Annoy and Alarm was contrary to Controlling Legal Principles and was not Supported by Adequate, Substantial, Credible Evidence.
B. The Trial Court's Finding that Mr. Dawson Committed An "Action" Prohibited by N.J.S.A. 2C:33-4 was contrary to controlling Legal Principles and was not Supported by Adequate, Substantial, Credible Evidence.
1. Mr. Dawson Did Not Violate Subsection (a) of N.J.S.A. 2C:33-4. a) Mr. Dawson Did Not Make a Communication. b) Mr. Dawson Did Not Make a Communication ...