October 12, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-05-000217-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2012
Before Judges Yannotti and Hoffman.
Defendant appeals from a final restraining order entered by the trial court on October 19, 2011, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
On October 1, 2011, plaintiff filed a domestic violence complaint. She alleged that on September 30, 2011, defendant followed her to a local establishment and began to harass her about answering her cell phone and responding to various text messages defendant sent to her. Plaintiff claimed that, during that day, defendant had repeatedly called her on her cell phone. Plaintiff asserted that she made clear to defendant that she did not want to be "with" him. Plaintiff further alleged that defendant had been calling her several months, and she told him she was "tired" of his calls. The trial court entered a preliminary restraining order on October 1, 2011.
The court conducted an evidentiary hearing in the matter on October 19, 2011. Plaintiff testified that she was defendant's "ex-girlfriend." She had been trying to end the relationship with defendant for a long time and "finally" got defendant out of her house in July 2011. However, in August 2011, defendant "came back" to plaintiff with what she called the "same old story." Plaintiff "agreed to give [defendant] another chance." According to plaintiff, "within weeks it just went the same old way, with verbal abuse."
Plaintiff told defendant "it was over" but he kept calling and texting [her.]" Defendant began following her. One day, when plaintiff left work for lunch and she saw defendant. He followed her down the street. Also, when plaintiff was working alone at night, defendant sent her a text message telling her she should be careful when working alone. Plaintiff considered this as a "veiled threat[.]"
Plaintiff further testified that on one occasion, she went out to dinner with a girlfriend and they stopped at a bar to have a drink on the way home. Defendant walked in and confronted plaintiff. He told her she should not ignore his calls and text messages. She told defendant she was not going to respond. Defendant then went to the other side of the bar and glared at plaintiff and her girlfriend. Defendant approached her girlfriend and said plaintiff was a "tramp" and "white trash."
Plaintiff testified that defendant's actions were "incessant harassment." Defendant sent her 346 text messages and she responded by telling him to leave her alone. Defendant sent half of the messages in July 2011. He sent the other messages after the end of September 2011. Plaintiff additionally stated that defendant passed her house a couple of times during the previous weekend. Plaintiff said she just wanted to be left alone.
Defendant testified that he had a relationship with plaintiff for three-and-a-half years and it was "a very good relationship." He did not deny sending plaintiff the text messages but said the texts were sent "over a long period of time." He stated that he was "simply trying to salvage what [he] thought was a worthwhile relationship."
Defendant further testified that he "cared for" and "loved" plaintiff. He was "crazy about her." Defendant said that, one Friday evening, he drove past plaintiff's home. He had no choice because he lives on the same street. Defendant thought plaintiff was at home because he observed her car in the driveway. Defendant drove to a local bar and checked the parking lot to make sure plaintiff was not there. He did not want a confrontation.
Defendant entered and saw plaintiff. Defendant testified that he had an "issue with some of the company she keeps." He told plaintiff that they needed to talk and she should respond to his texts. He also told plaintiff's friend what he thought of her. Defendant said he was not "over the top." He was not screaming. He walked around to the other side of the bar. Defendant denied glaring at plaintiff and her friend. He said he was fifty-seven years old and had "walked the straight and narrow all of [his] life."
Defendant additionally testified that plaintiff and her friends were involved with alcohol, drunkenness and "falling off of barstools." He claimed he was "done" with his relationship with plaintiff, but said he cared about plaintiff "very deeply" and they had a "very close intimate, wonderful, [and] beautiful relationship."
The trial court placed its decision on the record. The court found that defendant had committed a predicate act of domestic violence, specifically harassment. The court stated that it did not believe defendant's statement that he had tried to avoid plaintiff on the night he went to the bar, where he confronted plaintiff and her friend. The court found that defendant bothered plaintiff to such an extent that it qualified as harassment.
The court added that a final restraining order should be entered because defendant did not "get it[.]" The court said that the "number and nature" of times defendant contacted plaintiff indicated that entry of a restraining order was warranted. The court entered the final restraining order dated October 19, 2011. This appeal followed.
Defendant argues that his various contacts with plaintiff were an effort to "repair" his relationship with plaintiff and did not constitute harassment under N.J.S.A. 2C:33-4. We do not agree.
The scope of our review of a trial court's findings of fact is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the court's findings is "especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.
The PDVA provides that a final restraining order may be issued if the court determines that the defendant has committed an act of domestic violence. N.J.S.A. 2C:25-29(a)(6). The PDVA further provides that "domestic violence" means "the occurrence of one or more of" certain acts, including harassment pursuant to N.J.S.A. 2C:33-4. N.J.S.A. 2C:25-19(a)(13). A person commits "harassment" if, with the "purpose to harass another," he
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person. [N.J.S.A. 2C:33-4.]
We are satisfied that there was sufficient credible evidence in the record to establish that defendant acted with a purpose to harass and repeatedly communicated with plaintiff in a "manner likely to cause" her to be annoyed or alarmed. N.J.S.A. 2C:33-4(a). We are also satisfied there was sufficient credible evidence in the record to establish that defendant repeatedly committed acts "with a purpose to alarm or seriously annoy" plaintiff. N.J.S.A. 2C:33-4(c).
Defendant additionally argues that the court erred by entering a final restraining order because plaintiff did not establish that she had a reasonable fear of injury or death. Again, we disagree.
In Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006), we stated that the finding that a predicate act of domestic violence has been committed does not automatically mandate the issuance of a domestic violence restraining order. Id. at 126-27 (citing Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999)). Rather, the court must determine whether relief is "necessary to prevent further abuse." Id. at 127.
We are satisfied that is there sufficient credible evidence in the record to support a determination that a final restraining order was necessary to protect plaintiff from further acts of domestic violence. Notwithstanding defendant's arguments to the contrary, plaintiff was not required to establish that she had a reasonable fear of injury or death to justify entry of a restraining order to protect her from further harassment.
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