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A. D., Plaintiff-Respondent v. Tobin Etlis

March 15, 2012

A. D., PLAINTIFF-RESPONDENT,
v.
TOBIN ETLIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-3090-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2012

Before Judges A. A. Rodriguez and Fasciale.

Defendant appeals from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. The primary issue is whether the FRO was necessary to protect plaintiff. We affirm.

The parties engaged in a dating relationship that lasted approximately six months. Thereafter, defendant belittled, berated, and left crude messages for her. He communicated with plaintiff by calling her in the early morning hours, using Facebook, sending text messages, leaving voicemails, making phone calls, and calling her parents' house. Plaintiff contended that defendant's communications constituted a predicate act of harassment, N.J.S.A. 2C:33-4a, and that an FRO was necessary because she feared him.

The judge conducted the FRO hearing and listened to testimony from the parties and the parties' mothers. The judge found plaintiff to be a credible witness and stated, "I don't find at all credible [defendant's] testimony [because] he contradicted himself three or four times[.]" The judge then determined that defendant harassed plaintiff and issued the FRO to prevent future abuse.

On appeal, defendant argues that the judge erred by concluding that the FRO was necessary to protect plaintiff because of the geographical distance between the parties, lack of contact, and lack of actual history of violence between the parties. Defendant does not dispute the judge's credibility findings or his conclusion that defendant acted with the purpose to harass plaintiff.

When determining whether to grant an FRO pursuant to the Act, the judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Id. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.

Here, the defendant concedes on appeal that he acted with the purpose to harass. We conclude that the judge properly found that defendant committed the predicate act of harassment, N.J.S.A. 2C:33-4a. Therefore, we focus on whether the FRO was necessary.

As we have recently stated, there must be a finding that "'relief is necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b));

L.M.F. v. J.A.F., 421 N.J. Super. 523, 536-37 (App. Div. 2011). It is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The determination whether such an order should be issued must be made "in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment[,] and physical abuse and in light of whether immediate danger to the person or property is present." Corrente, supra, 281 N.J.

Super. at 248 (citing N.J.S.A. 2C:25-29a(1) and (2)); Peranio, supra, 280 N.J. Super. at 54. Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from ...


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