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C.M.S v. M.E.W

June 14, 2012

C.M.S., PLAINTIFF-RESPONDENT,
v.
M.E.W., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0378-12.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 22, 2012

Before Judges Payne and Simonelli.

Defendant M.E.W. appeals from the October 20, 2011 final restraining order (FRO) entered against him 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:33-4c. We reverse.*fn1

We derive the following facts from the evidence presented during the hearing for the FRO. Defendant and plaintiff C.M.S. are not married. They have four children together: a daughter born in 2006, a son born in 2007, and twin daughters born in 2009. Plaintiff also has two sons, born in 1995 and 1996 respectively, who live with her and defendant. The parties had contemplated marriage; however, defendant broke off wedding plans, allegedly because he believed that plaintiff was cheating on him.

The incident leading plaintiff to seek a temporary restraining order against defendant occurred on October 14, 2011. Defendant planned to clean and fumigate the parties' home due to a bedbug infestation. When he tried to use their steam cleaner, he found that it did not work. He accused plaintiff of breaking the machine and began hollering at and belittling her in front of three of the children. At the time, plaintiff was talking on the phone to her sister, and continued to do so after she resisted defendant asked her to stop talking and call the exterminator. Defendant disconnected the phone when plaintiff did not immediately comply. Plaintiff then used her cell phone to call her sister back. Both plaintiff and her sister testified at the FRO hearing that defendant mocked and belittled plaintiff as the call continued.

With respect to alleged prior domestic violence incidents, the parties testified that on September 12, 2011, plaintiff awoke defendant in the middle of the night when she turned on a hallway light to check on the twins, who were in his bedroom. Plaintiff sustained two sprained fingers when defendant attempted to shut the bedroom door. Plaintiff testified that defendant also constantly hollered at and belittled her, he threatened suicide if their relationship ended, his behavior had changed recently, and she was afraid of him.

The trial judge entered an FRO based on harassment, N.J.S.A. 2C:33-4c, finding as follows:

[T]his course of conduct that I have just described fits the definition of harassment. There's a constant overtone or undertone of accusations in the household of --accusations of cheating, making -- of demeaning, belittling, directing that she leave in front of the children, and, again, while I'm not focusing on the children's reaction, I'm focusing on the result to the plaintiff.

She says she's in fear of talking to people. You know, her personality has changed as a result of what she had endured from the defendant. So I do find that he has engaged in harassment.

I find that the focus of the defendant was to make the plaintiff feel less than, you know, a normal, upstanding member of society by belittling her, by mocking her while she's on the telephone, by accusing her of cheating all the time. It's clearly not a good situation for these people to remain in together.

Plaintiff indicates that she's scared of him, with his banging [his] head against the wall, with him saying he's going to blow-up, with him pulling the phone out with, you know, him stopping her from using the phone. She doesn't know what would happen if she really did need to use the phone, and the course of his ...


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