On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-749-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued August 13, 2012 - Before Judges Ashrafi and Hayden.
Defendant G.S.A. appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered after trial on October 24, 2011. We affirm.
Defendant and plaintiff K.A.A. were divorced in June 2011. They have three children, ages six, three, and six months at the time of the domestic violence complaint filed on September 14, 2011. Plaintiff alleged that defendant harassed her on September 10, 2011, at the time he dropped off their children following his parenting time. According to the complaint, he yelled at her and called her a "f***ing idiot" in front of the children, threatened to kill her dog, and threw the children's suitcases and wet towels at or toward her and the infant she was holding. On the standard domestic violence complaint form, plaintiff answered "no" to the question: "Any prior history of domestic violence reported or unreported?"
Both parties retained the services of attorneys to represent them for the domestic violence case. On September 22, 2011, plaintiff filed an order to show cause under the docket number of her divorce judgment seeking restrictions on defendant's parenting time with the children. The court suspended defendant's parenting time pending the domestic violence trial, which was adjourned twice before it commenced on October 14, 2011.
Plaintiff and defendant were the only witnesses. During plaintiff's testimony, her attorney asked about prior acts of domestic violence by defendant against her. Defense counsel objected on the ground that the complaint stated there had been no prior domestic violence. The judge ruled that plaintiff would be permitted to testify about prior incidents and that defendant and his attorney would be granted a continuation of the trial, if they desired, to prepare their response to those allegations.
The trial resumed on October 24, 2011. Defense counsel continued cross-examination of plaintiff. Defendant then testified, the attorneys made closing arguments, and the judge placed her decision on the record. The judge found that defendant had harassed plaintiff and that she was entitled to a final restraining order.
On appeal, defendant argues there was insufficient evidence of harassment and the judge erred procedurally by permitting plaintiff to testify about prior incidents. We find these arguments to lack merit.
Plaintiff testified that when defendant was returning the two older children to her home at about 4:00 p.m. on Saturday, September 10, her dog, which weighs eight pounds, barked at defendant, got loose from its leash, and ran toward defendant.
Plaintiff claimed that defendant had abused the dog during the marriage, and the dog did not like defendant. Plaintiff caught the dog before it reached defendant and brought it into the house. Defendant became very angry and began screaming at her about the dog. He threatened to "drop-kick" or "punt" the dog if he ever saw it again.
Defendant argued with her that the dog had scratched their daughter, which plaintiff believed was not true. Defendant called plaintiff a "f***ing idiot" in front of the children. As their six-year-old son started hitting him, defendant used a curse word to describe the dog and said that the boy "should not be a f***ing idiot like his mother." Plaintiff testified that the yelling and screaming in front of her house was loud enough for the "whole block to hear" and that it lasted about ten to fifteen minutes.
Regarding the prior incidents, plaintiff testified about several similar arguments over a period of about two years, some of which also involved the dog. She testified that defendant, a physically large man, put her in fear during such arguments by getting very close to her face and yelling and threatening her. She testified that she had left the marital home while she was nine months ...