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J.M. v. L.W.

Superior Court of New Jersey, Appellate Division

July 9, 2013

J.M., Plaintiff-Respondent,
L.W., Defendant-Appellant.


Submitted January 23, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-1565-12.

Scott T. Schweiger, attorney for appellant.

Respondent has not filed a brief.

Before Judges Waugh and St. John.


Defendant L.W. appeals from a final restraining order (FRO) entered against him by the Family Part under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The trial court's decision was based on a domestic violence complaint filed by plaintiff J.M., alleging harassment, N.J.S.A. 2C:33-4, as the predicate offense for the injunctive relief sought. On appeal, defendant challenges both the trial judge's findings of a predicate act and the need for a final restraining order. We disagree and affirm.

On December 7, 2011, the trial judge conducted a hearing at which defendant was represented by counsel and J.M. appeared without counsel. The judge asked J.M. to explain the facts leading up to her request for a restraining order. J.M. stated that she and defendant had been in a long term relationship and had lived together for almost three years when defendant terminated their relationship in August 2011. Thereafter the parties discussed getting back together. The judge asked if there were any other prior episodes of pushing or shoving other than those disclosed in her complaint. J.M. responded that there were a couple of occasions during their three year live-in relationship that defendant shoved her. J.M. was not harmed and did not report the incidents to the police.

J.M. then described the incidents that led up to her filing a domestic violence complaint against defendant, and the basis for her request for an FRO. J.M. was trying to avoid defendant because he had learned several days before that J.M. was dating another individual. J.M. had told defendant that if he had anything that was hers, he could leave it at her cousin's house which is located close to his house. On November 25, 2011, defendant surprised J.M. in the parking lot of Target, where she was employed, by showing up and giving her mail that had been delivered to his house. J.M. stated that this was the third time that day that defendant came to her place of work.

The following day, on November 26, 2011, defendant again went to Target. J.M. explained that defendant had text messaged her earlier in the day saying that she had to face him sooner or later because she had mail at his house that she had to retrieve. J.M. first noticed defendant as she was walking in the Target parking lot, she quickly walked and then ran to her car. Defendant called her names, "bitch" and "whore, " and said that he "wasn't going to go away that easily." Although defendant touched her, he was unable to detain J.M. from getting into her car and locking her doors. Defendant then banged on J.M.'s car window with his open hand in an attempt to get her attention. During this time J.M. was on the phone trying to contact Target security in an attempt to get someone to come outside. J.M. had previously informed her employer about her situation with defendant, and security said they would intervene if called. After leaving the Target parking lot, and going to a place of business, J.M. called the police to inform them of defendant's actions. She then filed the complaint which resulted in the order now appealed.

Defendant also testified at trial. Defendant stated that on November 26, he went to Target with his brother because his brother wanted to buy a t-shirt. Defendant happened to see J.M. and decided he should stop and try to talk to her. Defendant asked J.M. if they could talk and when J.M. continued towards her car he continued to try and speak with her. When J.M. got into her car, defendant tried to talk to her through her car window. Defendant testified that he told J.M. she was a terrible person. However, defendant denied banging on J.M.'s car window and stating "I'm not going to go away that easily." Defendant further testified that he had not encountered any problems when he had given J.M. her mail, and that she never told him to leave her alone.

The trial judge found J.M.'s testimony to be credible because she "testified in a manner that was very matter of fact" and was able to covey a degree of concern. The judge also noted that J.M.'s concern was more evident during cross-examination than direct examination, when one would expect a witness to pile on the defendant. Additionally, the judge found plaintiff's testimony to be corroborated by events that both preceded and followed the incident. This included the following facts: J.M. had already talked to her employers prior to the incident and informed them she might need protection; J.M. had blocked her phone number from defendant earlier that day; J.M. did not drive away but was on the phone with security in an attempt to get them to come out; and she spoke with several people regarding what she should do prior to notifying the police. The judge then determined that "[i]f the event had occurred in the manner in which the defendant described, . . . the Court does not believe that the other events that she testified to, which I have credited, would have occurred." The trial judge found that the evidence provided the basis for the predicate offense of harassment, and the conduct necessitated the entry of an FRO.

Trial court fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)); Parish v. Parish, 412 N.J.Super. 39, 47 (App. Div. 2010). The trial court sees witnesses firsthand and has a "feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (internal quotation marks omitted). We give additional deference to factual findings of the family courts because they have ...

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