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S.M.K v. C.R

October 6, 2011

S.M.K., PLAINTIFF-APPELLANT,
v.
C.R., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-01-572-11B.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued September 2, 2011 --

Before Judges Alvarez and Nugent.

Plaintiff S.M.K. appeals the November 15, 2010 Family Part involuntary dismissal of her complaint under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, and the resulting dissolution of a temporary restraining order (TRO) she had previously obtained against defendant C.R. We affirm essentially for the reasons stated by Judge Kyran Connor.

The matter was tried on November 3, 2010. Plaintiff testified, as did two witnesses on her behalf. At the close of plaintiff's case, defendant moved for a directed verdict, contending that plaintiff had failed to establish the predicate offense of harassment under any subsection of the statute, N.J.S.A. 2C:33-4, because she had not proven a purpose to harass. Defendant also argued that plaintiff failed to establish criminal trespass, N.J.S.A. 2C:18-3. The statute requires a plaintiff who seeks the issuance of a restraining order, as a threshold matter, to establish by a preponderance of the credible evidence, a predicate act of "domestic violence." N.J.S.A. 2C:25-19(a); Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Plaintiff opposed the motion for a directed verdict, and the court reserved decision.

On November 15, 2010, in a decision rendered from the bench, the trial judge found that defendant had not committed acts of harassment. Although he did find that plaintiff had proven the predicate act of criminal trespass under N.J.S.A. 2C:18-3(b), he concluded that a restraining order was not "necessary to protect the victim from an immediate danger or to prevent further abuse." See Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). The trial judge explained that he was "finding it difficult to get past the fact that no violence of any sort, nor any threats of violence[,] are said ever to have characterized this relationship." He observed that defendant's communications were not "enough for annoying or alarming harassment," as the communications were "non-anonymous, non-coarse and non-intrusive." Since plaintiff had functioned as defendant's attorney, it was "at least counterintuitive to any notion that [] [d]efendant was a controller or abuser in the relationship." For these reasons, the judge granted the motion for a directed verdict, dismissed the case, and dissolved the TRO.

The facts developed at trial are as follows. The parties had a dating relationship beginning in 2008 and ending in June 2009. Thereafter, in the latter part of June 2009, defendant came to plaintiff's home demanding the return of a credit card that she had left there. Plaintiff asked defendant to leave, and after an initial refusal, she eventually did so.

Plaintiff testified that after this incident, defendant sent her "nasty" text messages. Plaintiff could not produce the messages because she had purchased a new phone prior to the hearing, and all the relevant texts and voice mails were on the old phone which she discarded. The only details plaintiff recalled regarding the communications were that they related to her elderly dog, a source of conflict between the parties during the relationship. Plaintiff claims she became so apprehensive regarding these contacts that she went to stay for a few days at a friend's home and asked defendant not to contact her again. On July 10, 2009, defendant sent plaintiff an apologetic email and continued to forward emails through the month of August.

On September 11, 2009, defendant emailed plaintiff expressing her condolences on the anniversary date of plaintiff's mother's death. Plaintiff found this disturbing as she had not told defendant the date of her mother's passing. In that same email, defendant referred a client to plaintiff. On September 29, 2009, defendant emailed plaintiff a second time, asking about the referral, sending her regards to plaintiff's dog, and requesting instructions as to how she could obtain a copy of her divorce judgment.

On October 31, 2009, plaintiff wrote to defendant, directing her to stop "emailing, calling, coming to my home." Sometime around February 2, 2010, defendant communicated with plaintiff, this time on Facebook, regarding plaintiff's October letter. Defendant also congratulated plaintiff on her engagement and asked if she should forward warranties for an item in plaintiff's possession to plaintiff's office.

On July 22, 2010, defendant asked plaintiff's fiancee to become her Facebook friend. Plaintiff had blocked defendant from access to her Facebook page but, on August 23, 2010, defendant's daughter attempted to "friend" plaintiff. Sometime in August or September 2010, defendant contacted the mother of a person plaintiff previously dated, seeking to confirm that she was the individual who had previously dated plaintiff.

On October 6, 2010, defendant went to plaintiff's home and knocked on the front door. When no one answered, defendant left a note on plaintiff's car. In the note, defendant said that she had cancer, a short period of time in which to live, and that in anticipation of her death, she had registered a luxury car in plaintiff's name. She also mentioned that she still had a "Borgata card" that plaintiff had given her two years prior and that she would mail it back to her. Plaintiff called police; defendant was gone before they arrived. Thereafter, plaintiff went ...


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