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B.A.D v. L.E

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 23, 2012

B.A.D., PLAINTIFF-RESPONDENT,
v.
L.E.,
DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-002076-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 15, 2011

Before Judges Yannotti and Kennedy.

Defendant appeals from a final restraining order under the Protection Against Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Defendant's former boyfriend, plaintiff B.A.D., obtained the order after the court found that defendant committed an act of harassment against him. 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). We affirm.

On June 30, 2010, B.A.D. filed a Domestic Violence Civil Complaint against L.E. alleging he was harassed on June 29, 2010. He asserted that L.E. called his cell phone ten times on that evening, stating that she "knew where [B.A.D.] lives and [L.E.] was going to come by." B.A.D. told the defendant not to come but, notwithstanding that request, saw L.E. standing with two other individuals in the parking lot of his apartment complex. B.A.D. said that he went back inside and called the police. A temporary restraining order was entered and a hearing was scheduled.

B.A.D. testified that he and L.E. had an intimate dating relationship from 2005 to 2008 and that in April 2009, L.E. obtained a final restraining order against him on the basis of alleged domestic violence. He explained, however, that L.E. continued to contact him three to four days per week in an effort to "reconcile" and that on occasion she threatened to make his life a "living hell."

He indicated that on June 29, 2010, L.E. called him ten times over the course of a few hours and stated that she was going to "come by" his home because she "knew where he lives."

B.A.D. told her not to come by. He considered L.E.'s statement that she knew where he lived to be a "threat."

He testified that at approximately 10:00 p.m. that evening he left his apartment to buy a pizza and that, when he did so, he saw L.E. in the parking lot near his apartment with a woman and a man. He then went back to his apartment to call the police but when they arrived L.E. was gone.

Plaintiff also presented the testimony of two witnesses.

B.A.D.'s girlfriend testified that L.E. called B.A.D. ten times that evening and that she, in fact, looked out the window at approximately 10:00 p.m. and saw L.E. standing in the parking lot. The other witness indicated that he had parked his pick-up truck in the parking lot of the apartment complex and that L.E. arrived at the apartment complex in a car with a girlfriend and subsequently went over and spoke with him. He also recalled that this occurred at approximately 10:00 p.m.

Following the presentation of testimony, the trial judge made findings of fact and conclusions of law. The trial judge found that on June 29, 2010, L.E. called B.A.D. ten times and at one point stated "I know where you live", which B.A.D. took for a threat. He also determined that L.E. later showed up at the parking lot in B.A.D.'s apartment complex, despite B.A.D.'s request that L.E. not come over to his residence. The trial judge specifically found the testimony of B.A.D. to be more credible than that of L.E. and he also found the testimony of B.A.D.'s witnesses to be credible. On that basis, he concluded that "[L.E.] did do exactly what [B.A.D.] said she did."

The trial judge held that L.E.'s conduct constituted harassment:

[We] have a communication...with purpose to harass, made in a manner likely to cause annoyance or alarm. Ten phone calls or so from a blocked phone number . . . and her having said on the second call, "I know where you live, I've been there before." And her then showing up an hour or so later after those phone calls indicates to me conduct, which amounts to the predicate act.

The judge found that such statements as "I know where you live, I've been there before" are "threatening" particularly when "you find the person standing outside there albeit supposedly innocently." After making these findings and conclusions, the trial judge entered the final restraining order against L.E.

Our scope of review of the trial judge's factfinding is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998);

Rova Farms v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). A trial judge's findings of fact should be upheld if they are supported by "adequate, substantial and credible" evidence. Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Rova Farms, supra, 65 N.J. at 484). Because a trial judge "'[h]ears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale, supra, 113 N.J. at 33 (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). We are especially reluctant to disturb a Family Part judge's factfinding. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family courts' factfinding." Cesare, supra, 154 N.J. at 413. On the other hand, we owe no special deference to a trial court's legal interpretation of the statute, or the "legal consequences that flow from established facts." Manalapan Realty v. Manalapan Twp. Committee, 140 N.J. 366, 378 (1995).

Here, defendant challenges both the trial court's finding of a predicate act and the need for a final restraining order. Defendant contends that the conduct complained of "is merely [an] 'ordinary domestic contretemps'". With respect to the need for a final restraining order, defendant claims there is nothing in the record that "even resembles a finding that plaintiff was in immediate danger to his person or property." Applying the standards of review alluded to above, we discern no error in the court's application of the law and conclude that the trial court's factfindings were supported by the record.

The court relied upon N.J.S.A. 2C:33-4(a) in finding a predicate act of harassment. That section of the statute provides, in pertinent part:

[a] person commits a petty disorderly persons offense if, with purpose to harass another, he

a. Makes 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[.]

The statute requires proof of a "purpose to harass".

Our Supreme Court recently stated that a trial court must exercise care in distinguishing between ordinary disputes and irritations common in a domestic relationship and those actions that cross the line into domestic violence. J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011). In that case, the defendant passed the plaintiff's home in the early morning with a purpose to document her cohabitation with another man, which the defendant intended to support an effort to secure custody of the parties' children. The Court concluded that the defendant's actions did not constitute harassment.

Similarly, in L.M.F. v. J.A.F., 421 N.J. Super. 523 (App. Div. 2011), we reversed a finding of harassment when the trial court failed to find that the defendant's former spouse had a purpose to harass. Id. at 534-36. He repeatedly sent text messages to his former wife in order to obtain information about their daughter's welfare and academic performance. Ibid.

In this case, the trial court expressly found that defendant's purpose was to harass given the number of phone calls, the timing of the phone calls and the fact that there was no reason for L.E. to be in the plaintiff's apartment complex on that day at that time. Further, the trial court found that L.E.'s statement that she "knows where plaintiff lives" constituted a threat, under the circumstances.

We are not persuaded by defendant's argument that her actions constitute a mere domestic contretemps. The trial court carefully engaged in the task of "[d]rawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of 'ordinary domestic contretemps.'" J.D., supra, 207 N.J. at 475 (quoting Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995)). The trial court's findings are adequately supported by the record.

Finally, we find no error in the court's determination that a restraining order was necessary to protect the plaintiff. The court properly engaged in a separate inquiry regarding the need for restraints. In Silver v. Silver, 387 N.J. Super. 112, 126-28 (App. Div. 2006) we noted that after finding a predicate act of domestic violence has been committed, the trial court must determine whether a restraining order is necessary to protect the victim from immediate danger or to prevent further abuse. Ibid.

In sum, we find no error in the court's determination that defendant committed a predicate act of domestic violence and that the final restraining order was needed to protect plaintiff from future acts of domestic violence.

Affirmed.

20120123

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