On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-002121-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2012
Before Judges Alvarez and Skillman.
This is an appeal from a final judgment in an action brought under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, which concluded that although defendant had committed predicate acts of harassment upon plaintiff, a final domestic violence restraining order was not necessary to protect plaintiff.
Plaintiff and defendant were married in 1999. They separated and stopped living together in October 2007. Two children were born of the marriage, who were five and nine when this case was tried. Plaintiff has residential custody and defendant has substantial parenting time.
During the period between February 13 and March 8, 2011, defendant made 188 documented telephone calls and text messages to plaintiff.*fn1 Plaintiff estimated that only twenty of these communications related to defendant's parenting time and that the rest were intrusions into plaintiff's personal business, specifically, efforts by defendant to find out where plaintiff was, who she was with, and what she was doing.
Defendant also sent three text messages to plaintiff during the early evening hours of February 22, 2011, which contained the following threats of violence toward her boyfriend: If your boy talks shit about me again to one more person he's not going to leave here alive.
3 different people came up to me said he was talking shit. I didn't ask exactly what was said because I would have punched him in the face right then and there.
I'm dead serious. If I hear my name or the kids['] name come out of his at anytime even in the future I will hurt him.
In addition, defendant text messaged a pornographic photograph of his private parts to plaintiff.
Defendant did not deny that he had made the telephone calls and sent the text messages about which plaintiff testified. However, defendant claimed that more than twenty of his telephone calls to plaintiff related to his parenting time and that most of the calls were motivated by concern for his children. In particular, he objected in many of his communications to plaintiff living with a drug addict who had stolen some of the children's support money.
Plaintiff acknowledged that the boyfriend who had been living in her house with the children was a drug addict and that he had stolen money from her. Plaintiff testified that when she found out this information, she "kicked him out and . . . never let him back in the house." However, she admitted continuing her relationship with this person up to the time defendant made the telephone calls and text messages that were the subject of her ...