On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-338-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Simonelli.
Defendant, C.T., appeals from the entry of a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, resulting from the determination of a Family Part judge that she had committed acts of harassment against her former husband, plaintiff, A.G., as set forth in N.J.S.A. 2C:33-4(c), by engaging in alarming conduct or repeatedly committing acts with the purpose to alarm or seriously annoy him. We reverse.
The parties were married in 1992, separated in 1996, and divorced after a fourteen-day trial in New York in 2006. They have two children, ages 16 and 18. Neither has been emancipated. C.T. has residential custody of the children. A.G. is the part-owner of several successful restaurants, one of which is located in Hoboken.
On September 30, 2010, A.G. sought and obtained a temporary restraining order (TRO) based upon a complaint alleging:
PLA'S BUSINESS PARTNER CALLED PLA FROM HOBOKEN SAYING DEF CALLED HIM AND TOLD HIM SHE WOULD PICKETT OUTSIDE RESTAURANT, THAT SHE WAS GOING TO TAKE PLA DOWN, SHE WOULD TAKE ADDS OUT IN NEWSPAPER ABOUT PLA, THAT SHE WAS CALLING IRS. DEF CALLED PLA AND SAID "YOU'RE DONE." HISTORY CONT'D: SHE WAS REPORTING PLA TO THE IRS. JAN 2010: DEF SENT HARASSING EMAIL. DEF HAS SENT HARASSING EMAILS PREVIOUS TO THIS ONE, INDICATING SHE WAS GOING TO REPORT PLA TO LIQUOR AUTHORITY, TELLING PLA HE AND HIS FRIENDS AND FAMILY ARE GOING TO JAIL. DEF HAS BEEN VERBALLY ABUSIVE IN THE PAST. SHE MANIPULATED PLA'S VISITATION. DEF HAS CALLED PLA'S BUSINESS PARTNERS AND TRIED TO CAUSE PROBLEMS. DEF CALLS PLA'S FATHER'S WORK. DEF CALLS PLA'S EMPLOYMENT AND HARASSES PLA AND EMPLOYEES.
However, at a hearing held in the matter on October 19, 2010, A.G. produced little evidence in support of his allegations. In that regard, he offered competent proof only that on September 30, 2010, he received a call from C.T. on his cell phone telling him he was "done." Additionally, she had sent him an e-mail nine months earlier, on January 30, 2010, while seeking an increase in child support, stating:
[B]y the way I would seriously consider doing the right thing by your children. I realize the liquor board is only allowed to pry so deep but I can ensure the IRS abilities are limitless and move much faster. You should seriously consider doing the right thing by your children because there are a lot of peoples lives at stake.
Without specifying the underlying conduct leading to his complaint, A.G. also testified "it's escalating to the point where, until I got this restraining order, that there's escalating to serious craziness. My livelihood and my work - she is trying to take away from me." In that connection, A.G. produced an e-mail that he had sent to C.T. on July 22, 2010 that stated:
[I]f you make one more harassing phone call, leave any more threatening phone messages, physically or verbally harass any of my work locations or any of my family they're instructed to call 911 to make a report.
Evidence was not offered of what specific conduct led to the e-mail.
Although conduct by C.T. occurring in May figured in the court's decision, the only competent evidence presented in that regard by A.G. was that, in connection with her application for increased child support, C.T. had submitted an affidavit to the court stating: "His present residence is lavishly furnished, landscaped and even has a heated driveway so no snow will accumulate in the winter." A.G. claimed that the affidavit, which exhibited knowledge by C.T. of his residence, supported a claim of stalking. However, the court rejected A.G.'s claim, noting that it had not been set forth in his complaint. A.G. also stated at one point that he had been told that C.T. and a friend had gone to his place of business ...