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F.L v. L.A.B

July 8, 2011

F.L., PLAINTIFF-RESPONDENT,
v.
L.A.B.,
DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. FV-14-000561-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 23, 2011

Before Judges Sabatino and Alvarez.

Following several days of proceedings, the Family Part granted plaintiff F.L. a final restraining order ("FRO") against her father, defendant L.A.B., pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 ("the Act"). The court also awarded plaintiff $4500 in counsel fees under N.J.S.A. 2C:25-29b(4). Defendant now appeals the entry of the FRO and the counsel fee award. For the reasons that follow, we affirm.

I. Although the record contains a lengthy chronology of events concerning the parties' relationship, we recite only the facts and circumstances most salient to our analysis of the issues raised on appeal.

Plaintiff is a married adult with a child of her own. At the time that she filed her application for restraints against defendant, she was twenty-nine years old.

At the time of plaintiff's birth, defendant was married to plaintiff's mother. Defendant resided with plaintiff and her mother during the first two years of plaintiff's life. At that point, the mother relocated to a new residence with plaintiff and plaintiff's younger sister. Defendant stayed with them intermittently during much of plaintiff's early childhood. Her parents divorced when plaintiff was five.

According to plaintiff's testimony, defendant repeatedly engaged in odd physical acts with her when she was between the ages of six and thirteen. Among other things, plaintiff described how defendant would call her into his bedroom, make her remove her shirt, and tickle her hard enough to bruise her. Defendant also allegedly would bite plaintiff on the skull and stick his tongue in her ear. According to plaintiff, when her mother tried to get defendant to stop these inappropriate acts, he would chase the mother out of the room and "throw her head up against the wall[.]"

In November 1993, the mother obtained an FRO against defendant, on the basis that he had committed acts of assault, terroristic threats, and criminal mischief. The mother's FRO included restraints upon defendant's contact with plaintiff, who was then still a minor. In 1999, defendant moved to dissolve the mother's FRO, an application that Judge Convery denied following a hearing. In his written opinion denying the motion to dissolve, Judge Convery found that defendant "continues to attempt to assert power and control over the [mother] and his children."

After plaintiff turned eighteen, she tried to avoid her father, but he apparently persisted in attempting to contact her. According to plaintiff, defendant would scream at her and threaten her when she refused to speak with him. Nevertheless, she received numerous unwanted telephone calls and mail from him, to an extent that at times she allegedly did not maintain a phone in her own name.

Plaintiff moved to various locations around the country, but she was often unable to maintain her privacy from defendant. For example, plaintiff recounted an incident in 2001 while she was living in Virginia. Defendant knocked on her door, uninvited, after driving there from New Jersey. According to plaintiff, she refused his entreaties, stating that she did not want a relationship with him.

At some point in 2005, at the suggestion of her husband, plaintiff attempted to reconcile with defendant. During that brief period, plaintiff received a loan from her father for a down payment on a home. Plaintiff contended that she paid back the loan, but defendant kept trying to collect on it even after it was paid. Consequently, in the summer of 2007, plaintiff discontinued her reconciliation efforts. However, defendant allegedly kept calling plaintiff on a "constant" basis at her office and her home. He left telephone messages, threatening plaintiff that if she did not return his calls, he would go to her house, which, at the time, was in South Carolina.

The incident that prompted plaintiff to seek an FRO against defendant in her own right occurred on November 16, 2009, after plaintiff had moved back to New Jersey. According to plaintiff's testimony, at around 9:00 p.m. that night, she was sitting on the front porch of her home making a phone call when a car drove in front of her home, and proceeded to alternately pull forward and reverse. Plaintiff stated that the car pulled up near her house, and then she noticed a person crouching near her front door. Plaintiff stood up, recognizing the person to be her father. Plaintiff testified that she said "Dad?" and defendant "started cackling" in response.

According to plaintiff, at that point, she called her husband, who was inside the home. Her husband came outside and asked defendant his purpose. Defendant then started to walk away, allegedly telling plaintiff, "I just wanted you to know I know where you live." Plaintiff's husband told defendant to leave or he would call the police. Defendant then stared at plaintiff's husband, started cackling again, and "aggressively" drove off.

Following the November 2009 incident, plaintiff sought and obtained a temporary restraining order ("TRO") against defendant. Defendant denied committing any wrongful acts against plaintiff, contending that his efforts to locate and maintain contact with her as his daughter were entirely benign.

After considering the testimony at the FRO hearing, Judge Critchley granted plaintiff's application for permanent restraints on January 15, 2010. In his oral ruling, the judge generally found plaintiff's version of the events credible, and discredited defendant's account. Noting the prior history dating back to plaintiff's childhood, the judge found significant defendant's long-standing efforts to exert power and control over plaintiff and her mother. The judge concluded that defendant had violated the Act by harassing and by stalking plaintiff, and that restraints were warranted for plaintiff's future protection. After issuing the FRO the judge subsequently awarded $4500 in attorney's fees to plaintiff as the prevailing party.

In his appeal, defendant argues that: (1) plaintiff lacked standing to seek relief against defendant under the Act because they had not cohabitated for more than two decades; (2) the court lacked subject matter jurisdiction, also because of the lapse of time since cohabitation; (3) his conduct did not amount to domestic violence under the Act; (4) the trial court unfairly denied him an adjournment on the final hearing date, thereby depriving him of due process of law; and (5) the award of counsel fees was unjustified. We are not persuaded by any of these contentions.

II. A. As a predicate matter, defendant contends that too much time has passed from the time he lived with plaintiff in her childhood for her to now obtain restraints against him under the Act. Defendant characterizes this time lapse as signifying both a lack of plaintiff's standing and a lack of the court's ...


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