July 15, 2013
C.M.M.,  Plaintiff-Respondent,
DWAYNE DITROIA, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-05-483-12.
Anthony J. Harvatt, II, attorney for appellant.
Respondent C.M.M. has not filed a brief.
Before Judges Graves and Espinosa.
Defendant appeals from the entry of a final restraining order issued pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -34, based upon a finding that defendant committed the predicate act of harassment. We affirm.
Defendant acknowledges that he and plaintiff began a dating relationship in 2011 and became engaged to be married. In March 2012, after he purchased an engagement ring, wedding ring, and paid deposits for plaintiff's wedding dress and the wedding venue, defendant cancelled the wedding.
In April 2012, plaintiff filed a complaint against defendant, alleging he had committed the predicate offense of harassment and seeking a restraining order. In her complaint, she stated that defendant came to her place of employment on April 11, 2012. When she attempted to avoid him, he asked her co-worker personal questions about her. The police were called. Plaintiff also alleged that defendant had been sending her numerous text messages, phone calls, and voicemail messages since their relationship ended.
Plaintiff described a prior history of domestic violence in her complaint as well. She said defendant was "very controlling" during their relationship. Among the examples she included were: he refused to allow her to hang out with her male friends; told her how to dress and act; did not allow her to hang out at bars; she had to check in with him wherever she went; and he would show up to confirm she was where she reported she was. Plaintiff also alleged that defendant "got into [her] face during verbal altercations, smacked a bottle [of] water across the room [and] has done other gestures to intimidate" her, despite her telling him his actions scared her and that she had been abused by her ex-husband. Plaintiff also cited an incident when defendant brought a pan of ziti to the residence of a male friend, Jim, with whom he had accused her of having an affair, shortly after Jim's mother passed away. While there, defendant asked Jim for personal information about plaintiff.
A temporary restraining order was issued on April 11, 2012. The trial court conducted a hearing on April 18, 2012.
Plaintiff testified that defendant broke off their engagement on March 23, 2012, and said their relationship was over. However, the following day, he began calling and texting her. She went out to dinner with her friend, Christine Rothwell, and when they returned to her house, defendant was parked in her driveway. She did not want to go home while he was there so they kept riding around until they saw him leave. Rothwell testified about this incident and said plaintiff "was afraid to go home because of the constant texting and she was afraid that he was going to show up there."
Plaintiff testified that, after that night, there were a number of calls and text messages asking her to come back to defendant. She said she told him it was over and then did not answer his phone calls. She warned him not to stop by her house or her place of business because she did not want problems at either place and would call the police if he did. When she did reply to him, plaintiff said she asked him to "please stop . . . please stop texting [her], please leave [her] alone, please seek help . . . ." Plaintiff testified that defendant's mood went "up and down" during the text messages, and that he told her "he was going to come to Cape May every Friday and Saturday to look for [her] to see who [she was] with and what [she was] doing, which . . . scared [her]." She blocked his home, cell, and work telephone numbers so he could no longer call or text her directly. He then started using his son's cell phone to call and text her. Again, she asked him to stop.
At one point, she told him to please leave her alone, that she was going to the family home of her friend, Jim, whose mother had died. Defendant had only met Jim once, briefly, and did not know his last name. Plaintiff said defendant had not been "very cordial to him" because he knew that Jim had been plaintiff's boyfriend ten years earlier and did not like plaintiff to be around any ex-boyfriends. Defendant had accused plaintiff of sleeping with Jim on numerous occasions. About two days after plaintiff told defendant she was going to Jim's family home, defendant "managed to somehow track him down . . . and show up at his house with a pan of baked ziti and condolence cards."
The text messages continued, including an offer to give her $20, 000 to return to him and to buy her a house, and asking her where she was sleeping. Finally, she blocked defendant's son's number as well.
Plaintiff testified that defendant was very controlling during their relationship as to "who [she was] speaking to, who [she was] texting, [and] what [she was] looking at on the phone or the computer." On one occasion, after a friend sent her a text message at 10:30 p.m., defendant accused her of sleeping with him, yelled at her until 2:30 a.m., and made her unlock her phone so he could see and go through everything on her phone. Whenever plaintiff introduced defendant to a male friend, defendant asked if she had slept with him and plaintiff had to explain her relationship. His controlling behavior extended to her appearance -- her hair, makeup, nails, and clothing.
On the morning of April 11, 2012, plaintiff was at work at Sea Gear Marine Supply. Her co-worker, Angel Marroquin, looked out the window and saw defendant. Plaintiff took her cell phone and ran into the back office. She called her boss, Pete, and asked him "to please come up because [she] did not feel safe[.]" Pete came to stay with her. She saw defendant go to the building next door where embroidery work is done and then return to the building. Plaintiff called the police.
Marroquin testified that on this date, defendant came upstairs with a couple of jackets to the clothing department where Marroquin worked. Defendant specifically asked to see plaintiff. Marroquin told him that she was "in the back with Pete and Val doing paperwork[, ]" and that if he needed help, Marroquin would help him. Defendant asked if they could remove some embroidery from a jacket he purchased. Marroquin advised that once the embroidery was removed, it would leave holes in the jacket. Defendant continued to ask for plaintiff and to ask "50-50 questions about [plaintiff, ]" which, Marroquin explained, meant questions about her personal life. Marroquin said defendant wanted to know if "any guy had come up to see [plaintiff]; has she  gone out to lunch with someone or anyone in particular came in to see her." Defendant met with Pete and Rebecca, the head of embroidery, but then returned upstairs. He went to the door to the office and opened it. Marroquin told him there was nothing back there and defendant left.
Plaintiff testified that she believed she needed the protection of a restraining order, stating:
I am afraid for my life and what he might do. He is persistent. His actions are up and down. He has threatened. At one point, he said he would kill himself, sell his business, move away, things of that nature, and then the next text he would say I didn't say that, which he did do[.]
Defendant testified that he broke off the engagement with plaintiff, primarily because she had a drinking problem, and that he had to contact her for her cooperation in securing the return of his deposit for the wedding dress. He stated he texted her numerous times that he wanted to help her and that he loved her. She would get "nasty" and "freaked out on the phone." He testified that he was "very nervous" about the number of telephone calls and texts plaintiff received from other men. He recalled plaintiff receiving a text from a male between 11:00 p.m. and midnight. He denied having "a screaming match[, ]" but said they had "a serious discussion because [he] was very concerned about where [his] life was going with [plaintiff] . . . [and] didn't like what [he] was seeing. It . . . wasn't normal."
Defendant testified that he went to plaintiff's place of employment on April 11 to address a problem with the embroidery on some jackets he had purchased. He admitted asking about plaintiff, but said he told Marroquin "just let her know I'm here to fix the jackets, not to have any problems." He testified as to his conversations with Marroquin, Pete, and Rebecca, and his suspicion that plaintiff was "trying to keep [him] there as long as possible so she could call the police on [him] and make problems for [him]."
The trial judge found he had jurisdiction based upon the parties' admitted dating relationship. The judge also made specific findings that defendant had committed an act of domestic violence, i.e., harassment, and that the entry of a final restraining order was warranted. Defendant argues there was insufficient evidence to support a finding that he committed the predicate offense of harassment or to support the entry of a final restraining order.
In reviewing a decision of a family court, we "defer to the factual findings of the trial court[, ]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters[.]" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104.
"Our scope of review of a trial judge's finding of a predicate offense under the Act is narrow." N.G. v. J.P., 426 N.J.Super. 398, 418 (App. Div. 2012).
The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses. Therefore, an appellate court should not disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.
[Cesare, supra, 154 N.J. at 411-12 (internal citations and quotation marks omitted).]
The final restraining order was based upon a finding that defendant had committed an act of harassment. N.J.S.A. 2C:33-4 states, in pertinent part:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications . . . 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.
In State v. Hoffman, 149 N.J. 564 (1997), the Supreme Court explained the difference between these two subsections of the harassment statute:
[S]ubsection (a) proscribes a single act of communicative conduct when its purpose is to harass. Under that subsection, annoyance means to disturb, irritate, or bother. . . . In contrast to subsection (a), which targets a single communication, subsection (c) targets a course of conduct. Subsection (c) proscribes a course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy an intended victim.
[Id. at 580.]
Subsection (a) targets conduct designed to "annoy" and subsection (c) is directed at conduct intended to "seriously annoy." However, the Court clarified that the difference is just "a matter of degree[, ]" and concluded that "serious annoyance under subsection (c) means to weary, worry, trouble, or offend." Id. at 581.
To properly evaluate defendant's conduct in coming to plaintiff's place of employment, it is necessary to view it, as the trial judge did, against the history of the parties' relationship. See Silver v. Silver, 387 N.J.Super. 112, 125-26 (App. Div. 2006) (quoting Cesare, supra, 154 N.J. at 402). Plaintiff testified about the controlling nature of defendant's behavior, even when they were together, persistently inquiring about her associations with male friends and making demands about her personal appearance. Once defendant terminated their engagement, he continued to contact plaintiff by telephone and text. As the trial judge observed, plaintiff did respond to some of these contacts but conveyed to defendant that she wanted the communications to end and blocked his telephone number to avoid receiving more calls and texts from him. The judge found she had "taken every step that she could under the circumstances." In short, defendant was on notice that further communication was unwelcome.
Nonetheless, defendant "tracked down" plaintiff's friend, Jim, and showed up at his residence with a pan of ziti. The trial judge found this "troubling." The judge noted that "plaintiff told [defendant] she didn't want him to have anything to do with that other gentleman and he bakes a pan of ziti and gets a couple cards." The troubling nature of this conduct is even more evident in light of defendant's prior accusations that plaintiff was having an affair with Jim; defendant's suspicions and inquiries about her contacts with men, generally; and statements he made such as that "he was going to come to Cape May every Friday and Saturday to look for [her] to see who [she was] with and what [she was] doing[.]"
Turning to the incident at plaintiff's place of employment, the trial judge found that Marroquin gave "very credible testimony" about his conversation with defendant in which defendant asked questions about plaintiff's personal life Even assuming defendant had a valid purpose for going to plaintiff's place of employment the judge found his visit to be "a deliberate attempt to confront the plaintiff" The trial judge noted that as corroborated by Rothwell's testimony plaintiff was frightened by defendant's behavior
We conclude that the trial judge's findings are amply supported by the record As the Supreme Court stated "serious annoyance under subsection (c) means to weary worry trouble or offend" Hoffman supra 149 N.J. at 581 Plaintiff proved by a preponderance of the evidence that defendant intended to subject her to the level of "serious annoyance" under subsection (c) by coming to her place of employment against her wishes; by continuing to text and call her after she had made it clear she did not welcome further communication; and by showing up at Jim's house again contrary to plaintiff's stated request that he not do so In addition the record supports a conclusion that a restraining order was necessary for the protection of the plaintiff See Silver supra 387 N.J. Super at 126