On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-708-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 3, 2010 Before Judges Skillman, Parrillo and Espinosa.
The opinion of the court was delivered by ESPINOSA, J.A.D.
Defendant appeals from a final domestic violence restraining order (FRO) entered against him that was based on harassment. For the reasons that follow, we reverse.
A temporary restraining order was issued against defendant on August 18, 2009. When defendant could not be served with the order because plaintiff had no knowledge of his whereabouts, an indefinite restraining order was issued on August 27, 2009.
A FRO hearing was held on September 17, 2009. Defendant did not
appear. At the outset, the court stated that defendant had been served
by telephone with notice to be present and that it was satisfied
defendant was voluntarily absent from the proceedings.*fn1
The evidence provided by plaintiff, defendant's 88-year-old
mother, can be summarized as follows:
Defendant, 56 years old, resided with his mother in Somerdale. She filed a domestic violence complaint against him on August 18, 2009. Her stated reasons for doing so were that defendant had stolen her keys to the car, cell phone, bank book, money, and some jewelry. Plaintiff stated that he removed the items from her bedroom. She knew he stole the items because those were her things and she was the only other person who lived there. She testified that defendant thought she should not have the keys to the car; that he wouldn't say why but would just take them and had done so twice before. She also testified that, at one time, defendant had taken her wallet and then mailed it back to her, without the money that had been inside. She described his behavior as "controlling." She stated he had also called her a "senile old bitch." When the court asked if that "would annoy" her, she replied, "It hurt me . . . [be]cause I was . . . I felt that I was good to him. He had no reason to talk that way to me." She testified that defendant had also stolen little things from her in the past and on one occasion locked her out of the house.
The trial court found that defendant committed an act of domestic violence upon plaintiff, i.e., harassment. Finding plaintiff to be credible, the court made the following findings based upon her testimony:
I find that when the plaintiff testifies that her son is controlling, . . . that he takes personal property that belongs to her from her.
I find that the acts as they are described are harassing acts. I find that plaintiff's testimony as she drops her head and . . . when she states with great embarrassment, my son says to me you're a senile old bitch, I find that she's sincere as she weeps and she says that that hurts her, so I find that when the defendant does these things that it is his purpose to annoy or to alarm the plaintiff.
I find that the past history she's given this Court, I find that to be credible when she states that the defendant had locked her out of her home. She had to use a neighbor to let her back in her home. . . .
I find that she's credible when she says that the defendant has taken things from her in the past. It appears to the Court that the defendant is underestimating his 88 year old mother when he believes that because of her age she may not know where her belongings are or she may not know exactly what it is that she's doing, and I find that my observations of her and ...