On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-1494-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Simonelli.
Defendant P.X. appeals from the April 6, 2010 final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A. 2C:33-4a. Plaintiff R.N. cross-appeals from that part of the FRO which required him to pay $3000 to defendant for interim emergent living expenses. We reverse the FRO.*fn1
We derive the following facts from the evidence presented during the hearing for the FRO. Plaintiff and defendant met in May 2006 in New Jersey. Although defendant is a naturalized Canadian citizen, she resided in China at the time. In July 2007, the parties began living together in plaintiff's home in New Jersey, and in September 2007, they learned that defendant was pregnant. Their daughter, T.N., was born in May 2008.
There is no dispute that the parties had numerous arguments over marriage; defendant wanted to get married, but plaintiff was reluctant. The argument that led to the entry of the FRO occurred on January 8, 2010. According to plaintiff, he and defendant argued from 3:00 p.m. to 11:00 p.m., during which defendant screamed, yelled, and pounded on and kicked the door to the bedroom where plaintiff had locked himself in. Plaintiff was shaking during the argument, his heart was pounding, and he was extremely upset. Defendant eventually calmed down, and left the bedroom area. Defendant admitted that the parties had argued over marriage on January 8, 2010; however, she said that the argument only lasted two minutes, and she did not persistently bang on or kick the bedroom door.
Plaintiff also claimed that defendant threatened numerous times to take T.N. to China without his consent and not return the child to New Jersey if plaintiff did not marry her.*fn2 On January 18, 2010, defendant traveled to China with T.N. to visit her parents, and plaintiff joined them on February 20, 2010. The parties returned to New Jersey without T.N. Unbeknownst to defendant, plaintiff filed a complaint on March 15, 2010 for custody of T.N. and an order to show cause, requesting that defendant be incarcerated until T.N. was returned to New Jersey. The court granted plaintiff legal and physical custody of T.N., but refused to order defendant's arrest.
Plaintiff married defendant the next day, on March 16, 2010.*fn3 On March 17, 2010, defendant left for China to retrieve T.N. On March 26, 2010, while defendant was away, plaintiff obtained a temporary restraining order (TRO) against her based on the January 8, 2010 incident. Defendant was served with the TRO upon her return to New Jersey on March 31, 2010. Among other things, the TRO prohibited defendant from returning to plaintiff's home or visiting T.N., and ordered her to surrender T.N.'s passport.
Plaintiff also testified about these alleged prior acts of domestic violence: (1) on December 21, 2008, while riding in a car, defendant taunted him by singing to T.N. that "we are going to China;" (2) on May 4, 2009, defendant woke plaintiff, began questioning him about their relationship, and continued questioning him after he locked himself in another bedroom; (3) on October 9, 2009, the parties had an argument. In addition, on December 8, 2009, the parties argued about defendant's purchase of an expensive necklace that plaintiff wanted defendant to return. Plaintiff locked himself in a bedroom during that argument, and defendant yelled at him and pounded on and kicked the bedroom door. Plaintiff finally opened the door and let defendant inside the bedroom. She would not let him exit, blocked the door, and yelled at him to hit or kill her. Defendant eventually left the bedroom. Defendant admitted the parties had argued over the necklace, but she denied yelling and banging on the bedroom door, and said the argument lasted two minutes.
Plaintiff claimed that, as a result of the arguments, he suffered stress and was hospitalized. According to defendant, however, plaintiff was hospitalized for a liver problem that had nothing to do with their arguments.
After finding plaintiff's testimony "slightly more credible" than defendant's testimony, the trial judge issued an FRO based on the January 8, 2010 incident. He found that defendant committed an act of domestic violence under N.J.S.A. 2C:33-4a because she had made a communication at extremely inconvenient hours in a manner that was likely to cause annoyance or alarm. In determining whether plaintiff needed the protection of an FRO, the judge found that plaintiff "seemed to be genuine in his fears and . . . stress. I mean, his voice [reeks] of stress from the tension this has caused." The judge then concluded as follows:
[O]ne thing I think that the domestic violence laws are for is to try to let the air out [of] the balloon, try to de-stress the situation . . . these two parents have many, many miles to go. They both have one thing in common. They both love their child. And . . . the court system will try to make it so that . . . this child will be raised in a health[y] . . . and a safe . . . way by two parents who love [her], but will not be -- at least until this restraining order is dissolved in ...