On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-0744-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.
Defendant J.R. appeals from a final restraining order (FRO) entered against him by the Family Part under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The trial court's decision was based on a domestic violence complaint filed by defendant's brother, plaintiff D.R., alleging harassment, N.J.S.A. 2C:33-4, as the predicate offense for the injunctive relief sought.
On appeal, J.R. argues the trial court erred in issuing the FRO because D.R. did not present sufficient evidence to sustain the predicate offense of harassment. We disagree and affirm.
On December 1, 2010, the trial judge conducted a hearing prior to entering the FRO. The parties appeared without attorneys and the judge asked D.R. to explain why he sought a restraining order. The brothers had lived together in 2006 and their testimony reflected they continued to spend time together, until the incidents alleged in D.R.'s complaint. D.R. stated that on October 28, 2010, while the parties and their wives were driving together, a verbal argument erupted and then escalated when they arrived at their destination. D.R. stated that once outside the vehicle, J.R. "grabbed me by my left shoulder, swung me around on top of the car, started punching me in the face, and somehow ended up on the floor, and he continued to punch me in the face." After the incident, D.R. went to Atlantic City Hospital where he was treated and released. D.R. provided the court with five photographs depicting the injuries he sustained that night. The judge noted the photographs showed an injury to D.R.'s right cheek, "[a] bruise on the outside of the eye, as well as [a] cut and [a] bruise on the right side of the head near the hairline near the ear, and also a bruise . . . on the right forearm."
The judge asked if there were any other prior episodes of conflict between the parties. D.R. stated that in February 2007, an argument occurred between J.R. and his wife, during which J.R. "slapped her, and I got in it, and he came after me, punching me in my face and throwing me on the bed, and continuing to punch me in the face."
After the October 28 incident, D.R. stated J.R. sent him over 400 text messages within a twenty-four hour period. D.R. felt annoyed, alarmed, and threatened by the content of the text messages "that he's going to f**k me up whenever he sees me."
J.R. sent him this message repeatedly starting at 9:36 p.m. on February 28, 2007, and ending on 6:09 p.m. on February 29.
J.R. contends that on October 28, D.R. punched him first and that he was only defending himself when he assaulted his brother. He also presented hospital records for treatment he received on October 30 for a broken thumb he attributed to a fall after being struck by D.R. two days earlier. J.R. admitted that he actually sent over 1000 text messages in an attempt to "blow up" his brother's phone, but denied sending threatening ones. "I sent him an ugly picture of myself with the black eye, and then on the background it had Halloween noises." J.R.
admitted the purpose of sending the messages was to annoy and alarm D.R., although he claimed he was joking.
The trial judge found D.R. had not sustained his burden to prove he suffered an assault on October 28, presumably because the proofs suggested mutual fighting. However, the evidence provided the basis for the predicate offense of ...