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K.M v. C.A.F

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 3, 2012

K.M., PLAINTIFF-RESPONDENT,
v.
C.A.F., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-173-11.

Per curiam.

RECORD IMPOUNDED

FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 9, 2012 -

Before Judges Parrillo and Alvarez.

Defendant C.A.F. appeals from entry of an August 31, 2010 final restraining order (FRO) issued against him and in favor of plaintiff K.M. under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. We affirm.

The parties were married on June 28, 2006, and divorced on March 17, 2009. They have a son, D.F., born June 17, 2007, who was three years old at the time of the instant proceeding. On July 21, 2010, pursuant to N.J.S.A. 2C:25-28(a), plaintiff filed a domestic violence complaint against defendant alleging harassment and citing excessive unwelcome contacts by defendant via e-mail, text messages and phone calls, containing in at least one instance offensive sexual innuendo.

The complaint also referenced a past incident wherein defendant ripped a decoration off plaintiff's wall and threw it across the lawn and another wherein he threatened to beat her. Based on these allegations, a temporary restraining order against defendant was issued that same day.

At the final hearing in the Family Part on August 30, 2010, both parties were represented by counsel, and each had an opportunity to testify, call witnesses and present documentary evidence. According to plaintiff, on July 21, 2010, during an exchange of parenting time at plaintiff's house, defendant engaged in an altercation with one of plaintiff's neighbors, resulting in the police being summoned. Immediately following that incident, defendant flooded plaintiff with a barrage of phone calls, texts and e-mails regarding parenting time issues.

This behavior, according to plaintiff, continued a pattern of escalating unwanted contacts by defendant in recent months. From July 1 to 21, 2010, defendant sent plaintiff approximately forty text messages. On July 15, 2010 alone, defendant sent plaintiff four e-mails and five text messages, and telephoned her eleven times. These communications were ostensibly to discuss parenting issues although during one such conversation on July 12, 2010, defendant remarked: "I remember you told me nobody - nobody makes you come . . . ."

Not only were these contacts offensive to plaintiff, they were in violation of two "civil restraining orders" issued by the Family Part on August 13 and 31, 2009, that were still in effect. In fact, defendant had previously been found in violation of the former, resulting in the issuance of the August 31, 2009 order holding him in contempt and barring him "from any contact or communication with [p]laintiff, including texting or phone calls."*fn1

These two prior civil restraining orders were, in turn, based on domestic violence complaints filed by plaintiff alleging a number of past incidents involving defendant. For example, on March 17, 2009, defendant became angry and threw a home decoration across the lawn while making disparaging remarks about plaintiff in front of their child. On March 31, 2009, defendant threatened to "beat the shit out of [plaintiff] like he should have done before." The complaints also cited stalking incidents in April and May of 2009 and alleged forty-one text messages sent by defendant on August 1, 2009. It was also alleged that on August 2, 2009, defendant sent e-mails to plaintiff's daughter's MySpace account concerning plaintiff's current boyfriend.

At the conclusion of the hearing, at which defendant did not testify, the court found defendant had committed acts of harassment prohibited under the Act, N.J.S.A. 2C:25-19(a)(13), and, accordingly, issued an FRO against defendant. The judge reasoned:

[Defendant] blatantly violated the terms of that Order that the Court entered in an attempt to resolve these issues in a FM order outside of the parameters of the Domestic Violence Act. And the July 12th incident alone, the inappropriate sexual comment and the other comments that she had testified to earlier where he had made similar types of comments, then this was followed-up, on July 21st, by four emails and six phone calls and two text messages within a 15-minute period on July 21st, all of which was an express violation . . . of the August 31, 2009 Order.

I am satisfied the defendant has committed a course of conduct . . . the effect of which has been to harass [plaintiff] and that - - so, it's a course of conduct on the repeated, relentless phone calls and texting in violation of the Order of August 31st and, the inappropriate sexual comment is a harassing communication in and of itself offensive to [plaintiff].

I'm satisfied that there is need for the entry of a Domestic Violence Restraining Order. . . .

The court also awarded plaintiff $1500 in counsel fees.

On appeal, defendant essentially contends that the finding of domestic violence was against the weight of the evidence; the court erred in admitting proof of previous alleged acts of domestic violence; and his trial counsel was ineffective.

Specifically, defendant argues:

Point 1

I. Trial court erred in admitting testimony of previously adjudicated prior acts specifically allegations that on August 2, 2009 Defendant sent emails to her daughter's my space account regarding Plaintiff's current boyfriend.

II. The trial court erred in admitting testimony of a previously adjudicated allegation that Defendant threw a decoration across Plaintiff's lawn in March 2009.

III. Judge Millard erred in admitting testimony previously adjudicated that Defendant allegedly stated "I should have beat the shit - he was going to beat the shit out of me like he should have done before."

IV. The trial court erred in even granting the initial TRO as all but one allegation had been disposed of, or alleged to have occurred [over a] year earlier, and prior to 3 of the 4 restraining orders.

V. Trial court erred in permitting testimony of visitation issues in a domestic violence action.

Point 2

I. The final restraining order included a directive for Defendant to attend a[] batterers class however the decision of the trial court stated that Defendant attend an anger management class.

II. Trial Court's directive that defendant attend anger management class was against the weight of the evidence.

III. The order for payment by Defendant of plaintiff's counsel fees is against the weight of the evidence.

Point 3

I. Ineffective assistance of counsel, in that counsel never met with defendant or prepared a defense prior to the morning of trial.

II. Ineffective assistance of counsel, in that counsel did not put Defendant on the stand, although defendant wanted to testify.

III. Ineffective assistance of counsel in that evidence was not even presented in court, evidence of numerous unanswered emails to Plaintiff inquiring about the son.

IV. Counsel was ineffective in not objecting to every time Plaintiff testified to defendant's actions as "escalating" when he could have put in a defense that Defendant's actions were often reactions to Plaintiff's instigation.

V. Ineffective assistance of counsel in not presenting emails from Plaintiff to Defendant of Georgia mug shot, harassing Defendant [on] the eve of his NC court hearing.

VI. Ineffective assistance of counsel in not presenting emails from Plaintiff to defendant of NC court docket, harassing Defendant [on] the eve of his NC court hearing of NC court docket.

VII. Ineffective assistance of counsel in failing to submit facebook posting by plaintiffs family indicating that this was an ongoing effort to "bring down Defendant."

We deem these issues to be without merit.

The scope of our review is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). In a non-jury case, findings of fact by the trial court "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12; see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We will not disturb these findings on appeal unless the trial judge's findings are "'so wholly unsupportable as to result in a denial of justice . . . .'" Rova, supra, 65 N.J. at 483-84 (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). This is especially true in family courts, which have "special jurisdiction and expertise in family matters . . . ." Cesare, supra, 154 N.J. at 413.

Based on our review of the record, we are satisfied that there was sufficient, credible evidence to support the trial judge's findings, State v. Locurto, 157 N.J. 463, 471, 474 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988), and that those findings, in turn, patently support a conclusion of harassment of plaintiff by defendant, State v. Hoffman, 149 N.J. 564, 585 (1997), to constitute an act of domestic violence, N.J.S.A. 2C:25-19(a)(13); N.J.S.A. 2C:33-4(a).

In finding a violation of the Act, the Family Part judge properly considered the previous history of domestic violence between the parties to better "understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim's continued fear of the perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); see also N.J.S.A. 2C:25-29(a)(1); Cesare, supra, 154 N.J. at 403. Indeed, the principle is well-established that a defendant's prior acts can be considered in adjudicating a domestic violence complaint, whether or not those acts by themselves rose to the level of domestic violence:

However, an individual act previously rejected as insufficient to constitute domestic violence may take on greater significance because the act is later repeated in a manner that may amount to a course of conduct prohibited by N.J.S.A. 2C:33-4c and/or N.J.S.A. 2C:12-10b. In such instance, the prior act may be considered along with the new conduct in determining whether a plaintiff has established domestic violence based on a subsequent complaint.

[T.M. v. J.C., 348 N.J. Super. 101, 106 (App. Div.), certif. denied, 175 N.J. 78 (2002).]

Likewise, a current act that might not appear to constitute domestic violence if viewed in isolation, may rise to the level of domestic violence if viewed in the context of a history of more clear and serious violent acts. See Hoffman, supra, 149 N.J. at 585. As the Court held in Cesare, supra:

The requirement that a court consider the past history of the parties, in the context of an allegation of terroristic threats, harassment or other domestic violence, comports with the legislative intent of the statute. . . . [This] interpretation . . . "reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened."

Because a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard. Furthermore, in making their determinations, trial courts can consider evidence of a defendant's prior abusive acts regardless of whether those acts have been the subject of a domestic violence adjudication.

[154 N.J. at 405 (internal citations omitted).]

Here, while any one of the incidents cited by plaintiff, past or present, by itself may not constitute harassment, the long history of unwelcome communications and contact by defendant as well as the recent escalation in both volume and content clearly evidence a continuing course of conduct by defendant designed to harass, annoy and offend plaintiff.

Hoffman, supra, 149 N.J. at 576. Also strongly suggestive of defendant's purpose is the fact that the communications which form the basis of plaintiff's domestic violence complaint directly violate two prior "civil restraining orders" issued to prevent the very conduct engaged in by defendant here. Thus, collectively considered, defendant's actions constitute domestic violence for which an FRO was justifiably entered, N.J.S.A. 2C:25-19(a)(13), and counsel fees were properly awarded. McGowan v. O'Rourke, 391 N.J. Super. 502, 507 (App. Div. 2007); Wine v. Quezada, 379 N.J. Super. 287, 291-93 (Ch. Div. 2005). Lastly, defendant's claim of ineffective assistance of counsel is not cognizable as this is a civil, not criminal, case and the issue is raised for the first time on appeal, without a record on which to properly evaluate it. Even if cognizable, we reject the claim because defendant has failed to make a prima facie showing of ineffective assistance of counsel in accordance with the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

We deem the remaining issues raised by defendant to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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