On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-737-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 19, 2011 -
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from a final restraining order under the Protection Against Domestic Violence Act, N.J.S.A. 2C:25-29. Defendant's estranged wife obtained the order after the court found defendant committed an act of harassment against her. See N.J.S.A. 2C:33-4 (defining harassment); N.J.S.A. 2C:25-19 (defining harassment as an act of domestic violence).
The parties were married in 2003. They were living in Pennsylvania when they first separated in 2009. A Pennsylvania court issued a custody order on January 12, 2010, granting plaintiff primary residential custody of their son, born in November 2008, and gave defendant parenting time on Wednesdays from 5:00 p.m. to 8:00 p.m. and Saturdays from 9:00 a.m. to 5:00 p.m. At that point, plaintiff remained in the Pennsylvania marital home. In May or June of 2010, the parties attempted reconciliation and defendant resumed living with plaintiff and their son. They lived together for about six months, without modifying or vacating the custody order.
On the evening of Thursday, December 9, 2010, plaintiff told defendant that she did not believe the marriage was working. Defendant responded by telling plaintiff to "get the fuck out." Plaintiff slept in the child's bedroom that night, and the next day, after defendant went to work, she left the home with their son. She removed her belongings, as well as a disputed amount of the furniture, clothing, and toys. She sent defendant an e-mail at about 2:30 p.m. that day telling him she had moved to her parents' Mercer County, New Jersey home, and had taken their son pursuant to the custody order, which she would honor.
In response, defendant repeatedly called and texted plaintiff. Although many of the attempts were unsuccessful, defendant's phone records marked in evidence reflected one thirty-nine-minute telephone conversation on the afternoon of December 10, 2010, and a twenty-one-minute call around 8:45 a.m. on December 11, 2010. The latter call was preceded by eight unanswered calls, starting before 6:00 a.m., and followed by nineteen apparently unanswered calls including ten in one hour. Plaintiff claimed that defendant made many more calls and texts than those detailed in his phone records in evidence.
Plaintiff testified that defendant told her after she left with the child that "he's a walking zombie, he's having panic attacks, and he's extremely depressed. Until death do us part and I can't live without you."
On Saturday, December 11, 2010, defendant was entitled to parenting time, but plaintiff advised defendant that she would not let him pick up their son from her parents' home. She testified she was concerned about his ability to transport the child safely, as his driving privileges were suspended because of driving-under-the-influence convictions. She stated in an e-mail sent that morning:
I need to stress to you again I am not trying to keep [the child] from you. We are receiving conflicting information from our attorneys and until they communicate with each other with regards to correct custody, as I have told you [our son] will remain with me at my parents. You have no license in NJ and until you make the appropriate arrangements I am not comfortable releasing [him] to you in some taxi as you suggested.
Please contact me via e-mail as previously requested.
Defendant responded in an e-mail admitted in evidence, "You are 150% keeping him from me." He then appealed to her in the e-mail to resume their life together and offered to attend counseling and do "[w]hatever it takes" to be "a happy family again." Later that day, he asked again in an e-mail whether he could take the child to the mall and plaintiff responded by e-mail that he would be able to spend time with their son "when there is clarification of the custody order. I suggest that our attorneys speak on Monday."
The parties agreed to resume scheduled parenting time on Wednesday, December 15th. Accompanied by her mother, plaintiff drove to the marital home in Pennsylvania and delivered the child at the front door at 5:00 p.m. Plaintiff remained in the area, rather than go back and forth to New Jersey. When she returned to retrieve the child at 8:00 p.m., she found the house empty and no sign of defendant or the child. Plaintiff testified that she was terrified. She called defendant multiple times with no answer. She asked him by text to return the child, and defendant texted back "no way" and that he was keeping the child overnight.
Plaintiff sought police assistance in Pennsylvania and New Jersey to locate the child. She ultimately went to the Hopewell Township Police Department and obtained a temporary restraining order based on the allegation that "[d]efendant made numerous phone calls, text messages and e-mails to the victim about their relationship and child custody involving their child[.]" The restraints addressed defendant's contact with plaintiff, but not custody, possession of the marital home, or support.
Upon returning to her parents' house around midnight, she found an e-mail that defendant sent at 6:44 p.m. on December ...