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A.H.-O. v. B.T.O.

Superior Court of New Jersey, Appellate Division

August 8, 2013

A.H.-O., Plaintiff-Respondent,
B.T.O., Defendant-Appellant.


Submitted May 22, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-002693-12.

Spencer & Associates, L.L.C., attorneys for appellant (Remi L. Spencer, of counsel and on the briefs).

Lowenstein Sandler, PC, attorneys for respondent (Michael J. Hampson, on the brief).

Before Judges Simonelli and Accurso.


Defendant appeals from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, (the Act). We affirm.

The facts were established at a lengthy hearing conducted on April 30, 2012. The parties had been married for thirty-five years and had one child, a son twenty-one-years-old at the time of the hearing. Although attending college in a neighboring state, the son had recently been in trouble and his conduct had been a considerable source of stress and concern for both parents.

In May 2010, the young man had committed a disciplinary infraction that required his parents to meet with college officials and escort him home. Defendant testified that he had instructed plaintiff on the drive there that she was not to "say anything to him on the way back in the car." Defendant told his wife, "You know what? You have to stop playing with him. We have to knuckle down together and show this boy that we're serious as parents. You're not his friend. You're his mother." On the drive home, plaintiff testified that the atmosphere was very tense. Defendant, although silent throughout the two-and-a-half-hour drive, was pounding his fist on the console and plaintiff could see that he was becoming enraged.

When they pulled into their driveway, defendant ordered them to get out. He testified that he then started to address his son, saying "How dare you almost mess up in school." Defendant was yelling and plaintiff told her husband to calm down. He responded by pushing her, the first time he had ever done so in public. Defendant admitted pushing her, but claimed she pushed him first while he was arguing with their son.

Plaintiff quickly called to their son to get into her car which was parked in front of the one they had just exited. She then jumped into the driver's seat and locked the doors. Plaintiff, who was blocked in, asked her husband to "just back your car out, you know, just let us out." Defendant refused and instead began pounding on the windows and ordering them to get out of the car.

When defendant refused to move his car, plaintiff backed up and attempted to drive across the lawn to get away from him. Defendant picked up a large brick and smashed the driver's side window and reached into the car. Plaintiff testified that she tried to drive away without hurting him, but her husband was "trying to pull himself more into the car" and "snatch the keys out of the ignition." The situation ended after a neighbor called the police. Plaintiff declined to press charges, not wanting to put her "husband" in the system.

Defendant admitted smashing the window and pulling the keys from the ignition. He testified that he did so only after his wife became "frantic" when he told her to stop when he was arguing with their son. Defendant claimed that he

grabbed the brick. I broke the window out and turned the key off and that's all that happened. I turned the key off, 'cause I did not want her leaving with my son in the car and her [] have an accident. And that's the only reason why I broke the window. I paid to get the window fixed. I don't care about a window when it comes to the bodily harm of my family. So I broke – I did break the window out. And I told the officer, but I was not going to let her leave with my son like that.

Plaintiff testified that three months later in August 2010, her husband shoved her and threated to pour Drano over her. She testified that she was so afraid that she drove to her mother's house in Georgia, planning never to come back. She returned several days later after defendant repeatedly called and promised it would never happen again. Defendant admitted to arguing with his wife over their son and plaintiff's failure to clean the house, and "playing" with his wife with, what he claimed was, an empty can of Drano. He also admitted to asking whether she wished to drink the Drano but claimed he did so, "[i]n a jovialistic way."

Plaintiff testified that defendant got angry at her in November 2011 after she failed to toast a friend of his at a holiday party. When the couple returned home, defendant tried to show her how she should have behaved by directing her to toast with a bottle of water. When she refused, he choked her. He also threatened her saying, "You must . . . think I was afraid when the police were called before. . . . Call them again and see what happens to you."

Plaintiff testified that defendant's behavior continued to escalate until she finally left in December 2011 after he lit several paper towels on fire and threw them on the floor of their bedroom. Defendant had become enraged over the state of their son's room and set the paper on fire after not receiving a sufficient response from her to his concerns. Plaintiff extinguished the flames with a bottle of water. That same day, plaintiff saw her husband "flipping around this jagged knife that he had." After plaintiff had gone to sleep that evening, she awoke to see him standing over her, very angry and telling her to get up. When she tried, defendant pushed her back onto the bed and told her, "From now on, I'm going to leave the disciplining of . . . my son to you." "If anything . . . happens to him and his life doesn't turn out well[, ] I'm going to come after you and I'm going to hunt you down and there's no place where you'll be able to hide."

Defendant testified that "I was talking to my wife again regarding our son and her following through to do things that helped me out, be supportive of me. Again, she gets this nasty attitude." Defendant explained that "I had a little piece of tissue like this. And this is about one inch by, I would say about [] one-sixteenth of an inch. And I lit it and I waved it and I said, Honey, look at me. I'm talking to you." Defendant testified that when his wife would not look, he put it out with his hands and threw it on the floor and left the room.

On a rainy night a few weeks after plaintiff moved out, defendant appeared suddenly out of the dark in plaintiff's apartment parking lot. Plaintiff had just pulled into her spot when defendant jerked open her car door and began screaming at her to get out of the car, claiming that she had been ignoring his calls. Plaintiff testified that she was afraid and began trying to calm him down.

When defendant ordered her to get into his car and slammed her car door, plaintiff testified that she locked her doors and sped out of the parking lot. Defendant chased her. She testified that she was scared and crying as defendant followed her and she tried to get away from him. Plaintiff pulled into the South Orange Police Station but there were no officers outside. Defendant walked over and pleaded with plaintiff that he just wanted to talk to her. Plaintiff agreed to sit in defendant's car and the two talked. Plaintiff testified that she told her husband that she was afraid of him and asked him not to come to her apartment or her office anymore.

Defendant testified that he never followed her. He claimed that he had gone to her apartment to ask her to dinner. He watched her pull up and back in next to a white pickup truck. He testified when he walked up "my wife was sitting in the car. She's my wife. I walked up and I opened the door. Hey, Babe, how you doing? She freaks out." Defendant testified that she sped out of the lot, followed by the white pickup truck. "I'm sitting there, what the heck is wrong with her?"

On March 28, 2012, plaintiff received a phone call from an unidentified caller in the middle of the night which she did not answer. The next day, plaintiff received several calls at work from a man who would not leave his name. At three o'clock, defendant appeared at plaintiff's office and demanded that she come outside.

Not wanting to make a scene, plaintiff joined defendant in his car where he began to berate her. When plaintiff would try to leave, defendant would claim that she was "disrespecting" him. She testified that "he would get very angry and he'd have that look come across his face that goes across before he flies into a rage. So I just kind of sat there and just kind of waited for him to finish." She testified that it was thirty or forty minutes before defendant had calmed enough that she could return to her office.

When plaintiff left work that afternoon, she received a call from her husband wanting to meet her at a pizza place. She declined, then she looked in her rearview mirror and saw that defendant was behind her in his car. She testified that she got "really, really nervous" when he pulled up alongside her and demanded that she pull over. Plaintiff agreed to meet him at the pizza place to talk for five minutes. They ended up at a restaurant across the street where she claimed defendant continued his tirade from earlier in the day and told her how she had ruined his life. Plaintiff testified that defendant told her his life would be so much better if she were not around, and that when she asked what he meant, he merely repeated the statement. She claimed that she spent over two hours with defendant until he became calm enough that she could leave.

Plaintiff applied for and received a temporary restraining order (TRO) against defendant a few days later based on harassment. She testified that she sought the order because she "just wanted to be left alone." She explained

This is not somebody that I hate or anything like that. This is somebody I've been married to for 35 years. I just wanted to be left alone. That's why I went and filed a restraining order. Not to hurt him and I told him, I don't want to hurt him. I just want to be left alone. I don't want him coming to my job. I don't want him chasing me down the street.

After learning that his wife had received a restraining order against him, defendant applied for and received his own TRO. Defendant claimed that plaintiff had harassed and stalked him and made terroristic threats. At the hearing on the TROs, defendant's theory was that plaintiff was menopausal and sought a restraining order in retaliation for his having told her that he wanted to end their relationship. He claimed that plaintiff asked him to come to her office on March 29 and that the two agreed to have dinner together. He said that the two talked about their marriage and that he told his wife that he did not want to get back together several times that day. He claimed that she was very upset by this and "visibly shaken" when she went back to the office.

Defendant testified that his wife later suggested that he follow her to the pizza place, and they met there before going to a diner next door. He again told her that he did not want to continue their marriage and they talked of a woman defendant was seeing. Defendant testified that plaintiff threatened him, saying "You watch what I do to her and you watch what I . . . do to you." He claimed to have told her that he did not want to communicate with her anymore and that he would seek a restraining order against her. Defendant testified that afterwards, "[s]he went out and filed that restraining order against me and everything that she has said, everything that she has done it all leads to one thing and that's retaliation. She was retaliating against me because of the simple fact that I did not want a relationship anymore." He testified that his wife "has been acting very strangely" and that he was "very much [ ] afraid of her."

The trial judge found defendant's version of events not credible. The judge rejected defendant's claims that plaintiff had harassed, stalked him, or made terroristic threats. He denied defendant's request for final relief and dismissed the TRO entered against plaintiff.[1]

The judge noted the extensive testimony offered by plaintiff regarding the course of conduct between the parties over the last two years. The court credited plaintiff's testimony and noted that defendant admitted substantial parts of it, most significantly the incident in which he smashed her car window with a rock. The judge found that incident alarming and noted that it gave him great concern for plaintiff's safety.

While acknowledging that the parties "have had ongoing issues that they've been trying to work out, " the judge found that defendant's conduct in December 2011 and on March 28 and 29, 2012, constituted repeated acts of annoying and alarming conduct. The judge noted specifically that defendant had repeatedly followed his wife and that he had appeared at her workplace uninvited. The judge's findings were reinforced by his opportunity to observe defendant's demeanor during the trial. Considering all of the proofs, the court was satisfied that plaintiff had proved a predicate act of harassment and that in light of the history between the parties, a restraining order was necessary to prevent future acts of domestic violence.

On appeal, defendant claims that the trial court's findings were inadequate to support entry of a final restraining order and "were against the weight of the evidence" and that defendant was denied due process at the hearing. After careful review of the record, we reject these arguments.

Our review of a trial court's factual findings is limited. We may not overturn the factual findings and legal conclusions of a trial judge "unless we are 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." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord deference to family court factfinding because of the family courts' special jurisdiction and expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Deference is especially appropriate in a case in which the evidence is largely testimonial and involves questions of credibility because the trial court's ability to see and hear the witnesses provides it a better perspective than a reviewing court to judge their veracity. Id. at 412.

Applying those standards here, we find no basis to upset the trial court's findings or legal conclusions. Both parties testified at length. The judge had ample opportunity to judge their credibility and obviously found defendant's wanting. Although defendant contends that the judge failed to find that he acted with a purpose to harass plaintiff, E.K. v. G.K., 241 N.J.Super. 567, 570 (App. Div. 1990), a finding of a purpose to harass may be inferred from the evidence, informed by common sense and experience, State v. Hoffman, 149 N.J. 564, 577 (1997).

Here, plaintiff presented ample evidence that, viewed objectively, demonstrated defendant could have had no other purpose than to annoy or alarm her, particularly in light of past events. Defendant lit paper towels on fire in their bedroom. He appeared out of the dark in plaintiff's apartment parking lot and then chased her in his car. He showed up at her workplace and demanded that she leave work to talk to him. He appeared behind her in traffic and demanded that she pull over. We are satisfied that the judge did not simply rely on plaintiff's subjective reaction but instead found objective evidence of defendant's improper purpose. See State v. Washington, 319 N.J.Super. 681, 691-92 (Law Div. 1998).

We also reject defendant's contention that the trial judge erred in its "perfunctory conclusion" that plaintiff was in need of a final restraining order to protect her from further acts of domestic violence. Defendant discounts the copious testimony the judge accepted about the history of defendant's conduct towards plaintiff. The judge obviously considered this series of acts, some quite serious and alarming as the judge found, in determining that plaintiff needed the protection of a final restraining order. See Silver v. Silver, 387 N.J.Super. 112, 125 (App. Div. 2006) (a court must consider alleged predicate act in light of any previous history of domestic violence).

Defendant's argument that he was denied due process in presenting his evidence does not merit discussion in light of the extensive testimony the court elicited and the time accorded defendant to present his case. R. 2:11-3(e)(1)(E).

Our Supreme Court has recently cautioned that, when evaluating whether an individual acted with the requisite purpose to harass, courts are to be especially vigilant in cases involving the interactions of a couple in the midst of a breakup of their relationship. J.D. v. M.D.F., 207 N.J. 458, 487 (2011). We are satisfied that the trial court was appropriately sensitive to those issues in this case and that his findings and conclusions have ample support in the record.


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