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K.M v. C.A.F

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 ...


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