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A.B v. L.S.M

May 6, 2011

A.B., PLAINTIFF-RESPONDENT,
v.
L.S.M.,
DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Family Division, Hunterdon County, Docket No. FV-10-000138-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 15, 2011

Before Judges Parrillo and Espinosa.

Defendant appeals from the entry of a final restraining order (FRO) against him that was based upon harassment, N.J.S.A. 2C:33-4(a) and (c). For the reasons that follow, we do not find the evidence sufficient to support a finding of harassment under N.J.S.A. 2C:33-4(a) but affirm the entry of the order based upon N.J.S.A. 2C:33-4(c).

The parties lived together for approximately four years and had two daughters together. At the time of the FRO hearing, their daughters, "Heidi"*fn1 and "Barbie," were three years and twenty-two months old, respectively. Plaintiff had two other children, "Brenda," ten, and "Oscar," fourteen, and defendant had a daughter, "Susie," fourteen.

At the FRO hearing, plaintiff testified about an incident that occurred on August 13, 2010. She stated that when defendant came to pick up the children for parenting time that day, he told her he wanted to talk to her; that "he really, really missed [her] and he wanted to hug and kiss [her.]" She told him that she was not interested and had "no desire to have him touch [her.]"

At approximately 9:00 p.m. that evening, plaintiff received a text message from defendant. He stated that the girls forgot a teddy bear and blanket. She sent a text message back, asking if he needed them and he replied, "yes." Plaintiff brought her friend, Lori Ann Mortarulo, with her to defendant's residence. She explained:

Because every time he comes to my house he wants to hug me and he wants to come close to me and talk in front of the girls. And I don't want to. I keep telling him I don't want to.

Plaintiff stated that when she went to the door to hand him the items, defendant told her that the children were already asleep, which led her to believe that the call regarding the teddy bear and blanket was merely a ruse to get her to come to his home. He grabbed hold of her to keep her from leaving. She told him to "please stop and to please leave [her] alone, that [she didn't] want to be touched."

Mortarulo testified that when plaintiff went to the door, defendant came outside and, instead of taking the teddy bear and blanket, he grabbed plaintiff's wrist. Plaintiff backed away and defendant moved in closer, giving her a bear hug. Mortarulo testified that plaintiff's hands went down to her side, stiff, and that when she returned to the car, plaintiff was shaky, pale, and upset.

Plaintiff applied for and obtained a temporary restraining order (TRO) on August 16, 2010. Defendant acknowledged ...


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