September 17, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-721-11B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 16, 2012
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from the Family Part order finding that he committed acts of domestic violence, namely, stalking, harassment, and trespass during the fall of 2010, for which the entry of a final restraining order (FRO) for the prevention of domestic violence was entered under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
During the six-day trial on the domestic violence complaint, the following evidence was presented. Plaintiff and defendant were married and the parents of two children born during the marriage. Plaintiff filed for divorce in January 2010. On June 17, 2010, plaintiff was granted a temporary restraining order (TRO) after she claimed defendant grabbed or squeezed her wrist and was verbally abusive.
The parties entered into an agreement on August 5, 2010, which they placed on the record before the court and which was subsequently memorialized in the court's August 24, 2010 order. Key provisions of the order provided: (1) the parties were restrained from face-to-face contact; (2) defendant was restricted to curbside pick-up of the children with defendant remaining in his car and plaintiff remaining in the house; (3) plaintiff was granted possession of the "former marital home." The order also set forth a detailed parenting time schedule that, in addition to holidays, birthdays, and vacations, designated the first and third weekends of the month from Thursday after school until Sunday at 7:00 p.m. and the fifth weekend of the month as defendant's parenting time. As a result of the agreement, the TRO was dismissed.
Notwithstanding this agreement, a number of incidents occurred thereafter culminating in plaintiff once again seeking a TRO. Specifically, on September 18, 2010, while plaintiff was coaching a rowing team, defendant was present and interfered with plaintiff's coaching. Defendant testified that an assistant coach had asked for his assistance. The assistant coach, however, testified that beyond greeting defendant that day, he never asked defendant for assistance.
On October 4, a non-parenting day, plaintiff left her home to do some grocery shopping, and within minutes after she left, defendant approached the house and started banging on the door. This occurred around 8:00 p.m. Defendant testified that based upon an earlier communication with plaintiff, he was at the home to pick up a fax. Plaintiff disputed defendant's version, testifying that the agreement between the parties was that he would pick up the fax from the mailbox. When plaintiff arrived home that day around 6:00 p.m., the fax, which she had left in the mailbox, was no longer there.
On October 30, plaintiff had an upsetting conversation with a colleague from the Viking Rowing Club. Although defendant was permitted at the rowing club, he followed plaintiff that day as she walked around after the upsetting conversation. Defendant also stood near her while she was talking on a telephone. The next day, allegedly out of concern for plaintiff, he confronted plaintiff's colleague to inquire about the conversation.
On the evening of November 9, another non-parenting time, defendant came to the former marital residence and left a pizza on the porch. When plaintiff left the house on an errand, she saw defendant's vehicle parked down the street. She drove next to the vehicle and asked defendant why he was there. Defendant responded that he just wanted to provide plaintiff and the boys with food. Neither plaintiff nor the children had asked defendant to buy food for them. The next day, plaintiff applied for and was granted a TRO.
At the conclusion of the hearing, Judge James Jackson, in a lengthy oral opinion, found plaintiff had proved, by the preponderance of the evidence, that defendant committed the predicate acts under the PDVA, namely: stalking, N.J.S.A. 2C:12-10; harassment, N.J.S.A. 2C:33-4; and criminal trespass, N.J.S.A. 2C:18-3. The judge also found that under the totality of the circumstances, including a number of prior acts of domestic violence between the parties, which the court credited, plaintiff's fear of defendant was reasonable and that a "domestic violence restraining order [was] necessary to protect the plaintiff from future acts of domestic violence." In addition, the court found that with the entry of an FRO, plaintiff could "seek immediate relief from or correction of any inappropriate actions by the defendant without resorting to filing a motion with the [c]court to obtain enforcement of . . . the required civil restraints." The present appeal followed:
On appeal, defendant raises the following points for our consideration:
DEFENDANT DID NOT HAVE THE REQUISITE PURPOSE TO HARASS OR STALK AS FOUND BY THE TRIAL COURT AND THE COURT ERRED BY FINDING SUCH UNDER THE EVIDENCE PRESENTED AND THE TOTALITY OF THE CIRCUMSTANCES SHOWN AT TRIAL.
THE GREATER WEIGHT OF THE OBJECTIVE CREDIBLE EVIDENCE SHOWED THAT PLAINTIFF WAS NOT IN FEAR OF DEFENDANT AND THEREFORE PLAINTIFF WAS NOT ENTITLED TO A FINAL RESTRAINING ORDER.
THE EVIDENCE DID NOT SUPPORT A FINDING OF CRIMINAL TRESPASS AS DEFENDANT HAD LEGITIMATE PURPOSES TO BE AT THE MARITAL HOME.
THE COURT ERRED BY RELYING UPON HEARSAY STATEMENTS ADMITTED AT TRIAL WHICH WERE PREJUDICIAL TO DEFENDANT.
We reject these arguments substantially for the reasons set forth by Judge Jackson in his March 24, 2011 oral opinion. We add the following supplemental comments.
Under the PDVA, "acts claimed by a plaintiff to be domestic violence must be evaluated 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. N.J.S.A. 2C:25-29a(1) and (2)." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Therefore, the commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19(a) does not "automatically mandate the issuance of a domestic violence restraining order." Silver v. Silver, 387 N.J. Super. 112, 123 (App. Div. 2006) (quoting Kamen v. Eagen, 322 N.J. Super. 222, 227 (App. Div. 1999)). Rather, the court must make a discretionary determination based on the predicate act of domestic violence, any prior history of domestic violence, and any other relevant circumstances, as to "whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence." Id. at 128. Our review of such a determination is limited to deciding whether it constituted an abuse of discretion. Cesare v. Cesare, 154 N.J. 394, 416 (1998).
We are satisfied no such abuse of discretion by Judge Jackson occurred here. As the record established, defendant repeatedly placed himself in a position to be in face-to-face contact with plaintiff when he had agreed not to do so during his appearance before the court on August 5, 2010. This agreement was later memorialized in the August 24, 2010 order. Shadowing plaintiff, as plaintiff testified, although not direct face-to-face contact literally, had the same effect. Delivering food to the doorstep of the former marital home, on a nonparenting evening and when no such request for food had been made, not only evidenced defendant's purpose to harass plaintiff, but also established his presence on the property without a right or privilege to do so. Under the August 24, 2010 order, plaintiff was granted possession of the former marital home and the order directed that defendant remain in his vehicle on those occasions when he was at the premises to pick up his children for his parenting time. It is clear, by the language of the August 24, 2010 order, that the intent and spirit of the order was that defendant was not to be at the marital premises for any purpose outside of the provisions set forth in the order.
We note the judge's statement that the issuance of the FRO would eliminate the need to resort to motion practice in order to enforce the August 24, 2010 order. Such a purpose, standing alone, would not meet the two-pronged Silver test for the issuance of the order. Silver, supra, 387 N.J. Super. at 128. In this case, however, we are satisfied Judge Jackson first found that the predicate offenses under the PDVA were committed and also found that an FRO was necessary to protect plaintiff from future acts of domestic violence. Silver, supra, 387 N.J. Super. at 128. Thus, we do not view the judge's additional comment that the order would facilitate plaintiff's ability to seek immediate relief in the event of a violation of the order as the basis for its conclusion that an FRO should be issued, but a recognition that such consent orders, often typical in matrimonial actions, are not a substitute for restraining orders issued pursuant to the PDVA and therefore ineffective where acts of domestic violence have occurred and immediate relief is sought.
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