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A.D v. J.N.W

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 30, 2011

A.D., PLAINTIFF-RESPONDENT,
v.
J.N.W.,
DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-000066-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 24, 2011

Before Judges Baxter and Koblitz.

Defendant J.N.W. appeals the entry of a final restraining order (FRO) entered against him on behalf of plaintiff A.D. on July 8, 2010, pursuant to the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. After reviewing the record in light of the contentions advanced on appeal, we affirm.

At the time of the incident giving rise to the FRO, the parties had been married for almost four years, although they were living separately. Plaintiff lived in Cape May County and defendant in Passaic County. Both parties were twenty-seven years old, and plaintiff was pregnant with another man's child. The parties have no children together. On June 30, 2010, defendant obtained a temporary restraining order (TRO) against his wife, alleging that at 5:30 p.m. the previous day, she had called him "at home and work threatening to kill him because she was served divorce papers." He alleged that this behavior constituted terroristic threats, N.J.S.A. 2C:12-3, and harassment, N.J.S.A. 2C:33-4a. He indicated that there was no prior history of domestic violence between the parties.

On July 2, 2010, A.D. obtained a TRO against her husband, J.N.W., alleging harassment by the following behavior. He called her "and stated he was going to ruin her life." He was "yelling at [her] and calling her names." She alleged that he then served divorce papers on her at her work, although she asked him to serve the papers elsewhere. He wanted to see her, and she told him that "she ha[d] no reason to talk to him anymore." She alleged in her complaint that on April 13, 2010, her husband threatened to kill plaintiff and her mother. She also alleged that he had "strangled" her in the past, and that in December 2009, he had punched her in the face and knocked her unconscious.

After a trial at which only the parties testified, the trial court found that defendant was not credible when he testified in court that, when plaintiff called him on June 29, 2010, the day she was served with the divorce complaint at work, she threatened "her boyfriend would find [him] and kill [him]." The trial court found this testimony to be inconsistent with both the allegation in the complaint, which did not mention a boyfriend, and plaintiff's more credible testimony. The court's dismissal of defendant's TRO is not before us on appeal.

The court found plaintiff's testimony credible. She testified to the following facts. In April 2009, the parties had reconciled after a separation. Defendant was drinking, and she went to bed. She stated:

[At] 2 a.m. [defendant] was looking for his keys. He ripped me out of bed asking me where his keys were. I told him he was not getting his keys, he was drunk. . . . He started breaking stuff in the room, punched a hole in the door. . . . I took his keys and I threw them. I said here's your keys, get out, I'm done. When I threw them they hit him in his chest. That sent him into a rage, and he punched me. He had slapped me. He kind of gripped me up when I did that. I broke free, I ripped his shirt breaking free, and he slapped me on one side of my face. I pushed back to get out of the room. When I pushed back to get out of the room he hit me [with a] knock-out punch.

The "knock-out punch" to her face rendered plaintiff unconscious. She presented in support of this allegation contemporaneous photographs of her depicting her swollen and bruised face with injuries to both eyes.

On April 12, 2010, after they separated again and she decided to move to Cape May from Passaic County, defendant came over to plaintiff's apartment and asked her "if there was someone else." She told him it did not matter because they were separated and getting a divorce. Defendant "was having a fit in the parking lot. . . telling me I know that there's someone else, just tell me that there's someone else." He ripped off his shirt in his frenzy. The following day, he sent her a text message stating, "you're dead, too, b[**]ch." Plaintiff produced a photograph of that text message.

Plaintiff admitted that she called defendant the day she was served with the divorce complaint at work, and left a message on his phone. An hour later, defendant called back and "began yelling obscenities" at her. He said, "I told you I was going to ruin your life." After plaintiff hung up the phone, defendant sent her text messages.

Plaintiff presented photographs of text messages, beginning June 9, 2010, before defendant served her with the divorce papers, in which plaintiff asked defendant not to call her at work and not to deliver court papers at her work. Defendant responded by text, "Don't ever f[***]ing threaten me" and vowed to serve her at work, expressing anger that plaintiff became pregnant before the divorce was finalized. In text messages he asked to speak to her again, and she declined.

Plaintiff testified that she needed the protection of a FRO for her safety. She testified, "because of our past incidents, I do fear for my life from [defendant]."

On appeal, defendant raises the following issues:

Point I

THE COURT BELOW ERRED IN ENTERING A FINAL RESTRAINING ORDER AGAINST [J.N.W.] AS [A.D.] HAD FAILED TO ESTABLISH A PREDICATE OFFENSE HAD OCCURRED.

Point II

THE FINAL RESTRAINING ORDER MUST BE VACATED AS THE COURT FAILED TO DETERMINE WHETHER THE RESTRAINING ORDER WAS NECESSARY TO PROTECT [A.D.] FROM IMMEDIATE DANGER OR FURTHER ACTS OF DOMESTIC VIOLENCE.

Defendant argues on appeal that his service of the divorce complaint by the Sheriff's Department at her work site was consistent with Rule 4:4-3(a) and did not constitute harassment. He argues further that because plaintiff admitted on cross-examination that she considered three separate visits by the Sheriff's Department in furtherance of service to be harassing, she had improper motives for requesting a FRO. The trial court addressed that argument, finding instead that defendant's obscene language and threatening remarks when viewed in light of the prior history of violence constitute harassment under the Act. The Act is designed to "assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18.

Under the Act, N.J.S.A. 2C:25-19a(13) enumerates that harassment is one of the predicate offenses that may support a finding of domestic violence and the issuance of a FRO. Harassment, in turn, is defined in the Criminal Code to include conduct in which a defendant, "with purpose to harass another[,] . . . [m]akes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm[.]" N.J.S.A. 2C:33-4a. A single harassing communication may suffice under the Act. State v. Duncan, 376 N.J. Super. 253, 260 (App. Div. 2005).

The prior history of domestic violence between the parties informs the decision as to whether the current incident constitutes harassment. As the New Jersey Supreme Court stated in 1998:

[T]he Act does require that "acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties."

Peranio [v. Peranio,] 280 N.J. Super. [47,] 54 [(App. Div. 1995)]; accord Corrente [v. Corrente,] 281 N.J. Super. [243,] 248 [(App. Div. 1995)]. Although a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis. Therefore, not only may one sufficiently egregious action constitute domestic violence under the Act, even with no history of abuse between the parties, but a court may also determine that an ambiguous incident qualifies as prohibited conduct, based on a finding of violence in the parties' past. [Cesare v. Cesare, 154 N.J. 394, 402 (1998).] Defendant argues that his prior history of violence was too remote in time and was not the subject of a prior police complaint. Plaintiff testified to a brutal beating in December 2009 and a threatening rage in April 2010. These incidents evidence a serious pattern of violence and are not remote. Our Court has clearly indicated that such incidents should be considered by the court. Id. at 405.

Defendant also argues that the trial court failed to find that "a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence" as required by Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006). In Silver, we vacated a dismissal of a TRO where the trial court did not enter a FRO after finding an isolated physical confrontation between the parties concerning the supervised-visitation portions of a consent order. Id. at 15. We remanded for the court to conduct a hearing to determine whether the issuance of a FRO was appropriate. We stated that this second determination -- whether a domestic violence restraining order should be issued -- is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse. [Id. at 127.]

We view this situation as one where the need for a FRO is indeed "self-evident." N.J.S.A. 2C:25-29a(1) requires the court to consider "[t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse[.]" Defendant argues that because "the parties were separated and a complaint for divorce was pending, the parties had no children together, there was little in the way of marital assets to be divided and the parties lived at opposite ends of the state" a FRO was not necessary. The trial court found plaintiff's testimony credible. She testified that she "fear[ed] for [her] life from [defendant]," especially in light of defendant's prior physical violence toward her within the past twelve months. We discern that based on this credible testimony the court found the entry of a FRO necessary "to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127.

The trial court properly performed its obligation in determining that a predicate offense occurred and that, in light of the prior history, a FRO was required to protect plaintiff.

Affirmed.

20110630

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