On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-2646-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 12, 2012
Before Judges Axelrad and Haas.
Defendant appeals from a final restraining order (FRO) entered against him in favor of his girlfriend based on a finding of the predicate offense of harassment under the Prevention of Domestic Violence Act of l99l (Act), N.J.S.A. 2C:25-17 to -35. He asserts a due process violation by the court in entering the FRO based on acts that were not alleged in the complaint, and challenges the record as insufficient to support the offense and to warrant issuance of restraints under the Act. We agree and reverse.
The parties were dating at the time. Plaintiff obtained a temporary restraining order (TRO) against defendant on May 2, 2011, based on the predicate offense of assault and allegation that on April 29, "defendant pushed her, pulled her hair, and squeezed her legs while engaged in a dispute."
At the final hearing on May 13, both parties were self-represented. They both testified, and defendant presented the testimony of a female acquaintance who was with him on May 2, 2011. Plaintiff testified that she first went to a therapy session on April 29, 2011, after which the parties went to a restaurant. While there, she told defendant that if he did not take his medication, she would have to "take a break" from him. He became upset and verbally aggressive but, nevertheless, the parties then went to a movie. During discussions, defendant became upset and expressed concern that she was "betraying him." When the movie ended, plaintiff tried to calm him down, touching his hand and giving him a kiss. She related that defendant told her to leave him alone and pushed her hands away with both of his hands.
The couple then got into defendant's car. Plaintiff alleged that while defendant was driving, he squeezed her left knee "very hard" for two minutes, causing a bruise. She also claimed he pulled her hair for about ten minutes, and pulled out some if it. Plaintiff did not provide any photographs of these alleged injuries. Defendant then dropped plaintiff off at her parked car.
Plaintiff related that right before she exited the car, defendant asked her to write a letter "stating that the Kearny police were very violent" to him when they picked him up as a result of a domestic violence complaint plaintiff had made against him in February. As stated on the complaint filed here, plaintiff had received a TRO as a result of that incident. She dismissed the TRO prior to trial. The court read into the record the allegations of the earlier complaint. Plaintiff elaborated that defendant had posted statements on Facebook asserting that "she had multiple personalities" and "has the ability to create problems." He also parked outside her home around dinnertime and followed her for three stop lights, during which time she called the police, and defendant was stopped.
Plaintiff further testified that defendant called her between fifteen to twenty times on Monday, May 2, requesting the letter. She could only produce evidence of four telephone calls to her cell phone on that date, none of which were from defendant's phone number. Rather, they were from a "private" number that plaintiff alleged was used by defendant. During these calls, defendant allegedly told plaintiff she didn't "have any education," was "a stupid person," and "a person who eats shit." Plaintiff then decided to seek a restraining order.
Defendant admitted the prior Facebook posting, but denied having made the comments testified to by plaintiff. He explained he had followed plaintiff on the prior occasion because she had his house keys and told him to pick them up. Defendant testified they went to the movies and to plaintiff's car on April 29 without incident, and he specifically denied the alleged assaults. Defendant did admit to asking plaintiff to write a letter describing what had occurred during her therapy session so he could address it with his therapist at the same clinic because he was concerned the therapist had revealed his medical information to plaintiff. Defendant did not recall phoning plaintiff over the weekend, but admitted it was possible.
Defendant denied having made numerous phone calls to plaintiff the following Monday. He provided a text plaintiff had sent him at 6:46 p.m., advising that she did not feel well but he could still come over. Defendant testified he later stopped there with a female acquaintance, but plaintiff was not home.
The acquaintance corroborated defendant's testimony that she and defendant were at Walmart when he received plaintiff's text and, at his request, she accompanied him to plaintiff's house where he expected to pick up some papers. She testified that plaintiff was not home, and when defendant phoned plaintiff, she asked him to wait for her to arrive. ...