On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-000466-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2011
Before Judges Espinosa and Kennedy.
Defendant appeals from a final restraining order entered against him under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant's estranged wife obtained the order after the trial court found defendant committed an act of harassment against her. See N.J.S.A. 2C:33- 4 (defining harassment); N.J.S.A. 2C:25-19 (defining harassment as an act of domestic violence).
Defendant contends that the trial court erred by "admitting . . . testimony about . . . firearms" despite the fact that firearms were not mentioned in the complaint. Defendant further contends that the acts testified to by his estranged wife do not constitute harassment. Defendant also challenges the court's denial of a subsequent motion to vacate the final restraining order. For reasons stated hereinafter, we affirm.
On August 16, 2010, N.F. filed a domestic violence civil complaint against E.F. alleging that she was harassed and assaulted by him on August 15, 2010. N.F. claimed that, on that date, E.F. filled garbage bags with her clothing and threw them down the stairs hitting her in the shoulder with one of the bags. In the section of the complaint dealing with prior history, N.F. claimed that defendant called her degrading names and made her feel "inferior." In an addendum to the complaint, N.F. noted that after she left the marital home that evening, E.F. sent her a series of text messages in which he derided and scoffed at her, again calling her a degrading name. She added also that E.F.'s behavior had become "erratic [and] irresponsible for the past few months since she asked him for a divorce." She noted also that the defendant has been "violent with her" in the past, forcing her to have sex with him and breaking a telephone and a television set. On the bases of the allegations of the complaint, the trial court entered a temporary restraining order and set a date for a hearing on a final restraining order for August 23, 2010. E.F. appeared on that date in court accompanied by counsel.
We discern the following facts from the record made during the hearing on the final restraining order. N.F. and E.F. married on April 25, 1998, and had one child of their union, C.F., born in 1999. At some point in 2010 the parties began "having marital issues" and N.F. told E.F. that she wanted a divorce. She requested that he leave the marital home at that point but he elected not to leave. After N.F. asked for a divorce, she found E.F.'s conduct to escalate from "being nasty and rude to harassment and assault basically." In characterizing the escalation of his alleged erratic behavior, N.F. said:
It started with his rifles being left out in the open. I found them laying on the table one day in the basement where my daughter goes to play video games. And I don't know anything about guns. So I called my brother-in-law to come over just to make sure that it wasn't loaded or whatever, it was locked. And if he would put it away some place.
Thereafter, the trial judge asked if E.F.'s guns had been kept in a locked gun case prior to that incident and N.F. responded that "they were not kept in my sight. I don't know exactly where he kept them. But I just know that they were never lying on the table like that. That scared me. I felt like I was being intimidated by that."
N.F. testified that on August 15, 2010, she returned to the marital home and went upstairs to the bedroom to ask E.F. a question when E.F. told her to get the "F" out and he was obviously angry.
He started packing all my clothes in gigantic garbage bags out of our closet. Everything. And started throwing them down the stairs. And they were very big bags, very heavy. And one of them hit me in the shoulder as he threw it down the stairs.
After throwing the bags of her clothes to the bottom of the stairs, E.F. took all the bags outside and placed them by the curb.
N.F. at this point called the police. On their advice, she left the marital home and thereafter filed a domestic violence civil complaint. That evening, E.F. sent her a series of text messages essentially scoffing at her, ...