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J.M.H v. S.H

February 16, 2012

J.M.H., PLAINTIFF-RESPONDENT,
v.
S.H., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-0207-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 30, 2012

Before Judges Harris and Newman.

Defendant S.H. appeals from a final restraining order (FRO) in a domestic violence action. We affirm.

Plaintiff J.M.H. filed a complaint on July 12, 2010, against defendant alleging violation of the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to 35. Plaintiff and defendant were married in 2003 but have been together for approximately thirteen years and have a daughter, born on September 26, 2005. Plaintiff has an older son, age eighteen, who is serving in the United States Army.

A hearing was held on July 22, 2010, following the issuance of a temporary restraining order. At that time, plaintiff testified that defendant's use of alcohol and drugs went back to 1997. Although he promised to change, he did not. Plaintiff also testified that approximately two years before, the parties were on the way home from visiting relatives, when defendant who had been drinking, started arguing from the rear seat of the car and punching the back of the driver's seat while plaintiff was driving. He stopped when she threatened to call the police.

Plaintiff further testified that when she picked up her daughter at the house of defendant's father, where defendant had been baby-sitting, she learned that the child had been in a bar with defendant. As a result of that incident, plaintiff could no longer permit an unemployed defendant to watch his own daughter, while he remained at home and plaintiff worked. The daughter had to be placed in daycare.

Plaintiff also described an incident in early 2009 when defendant came home drunk and picked up his daughter. Because of his condition, plaintiff attempted to recover the child and was shoved by defendant. Plaintiff's son was there and pushed defendant back, advising him not to lay a hand on his mother.

In June 2010, defendant had attended a Yankees game. He came home drunk and stumbling and was looking to argue with plaintiff. Plaintiff told defendant to leave her alone or she would call the police.

On July 11, 2010, plaintiff brought her daughter to have dinner with her family. When she returned home, defendant was verbally abusive. She retreated with the child to the bedroom. Defendant pursued her but left when she threatened to call the police. He then continued to call her numerous times on her cell phone until the following morning at 2:00 AM. Plaintiff claimed that she was under emotional stress and distressed by reason of defendant's alcohol abuse. While she was not physically harmed, she felt that defendant had verbally harassed her and that she was in need of protection from his continuing verbally harassing conduct.

Defendant also testified and admitted that he drank on occasion but denied he came home drunk. He maintained that plaintiff's description of incidences were "inaccurate, exaggerated and blown out of proportion."

In deciding the case, the trial court recognized that plaintiff had the burden of proof by the preponderance of the evidence standard and found that a predicate act of harassment had been committed under N.J.S.A. 2C:33-4, satisfying the definition of domestic violence under N.J.S.A. 2C:25-19(a)(13). The trial court found that N.J.S.A. 2C:33-4(a) prohibits a person from committing a petty disorderly person offense "if, with purpose to harass another, he or she makes or causes to be made 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 trial court considered the prior history between the parties, recognizing that the issues between plaintiff and defendant had been ongoing "for a very long time." As the trial court observed: "I found that for at least the last ...


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