JACLYN ROWBOTHAM v. ADDAM LINDEMANN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0710-04T10710-04T1

JACLYN ROWBOTHAM,

Plaintiff-Respondent,

v.

ADDAM LINDEMANN,

Defendant-Appellant.

____________________________

 

Argued October 11, 2005 - Decided

Before Judges Collester and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Warren County,

FV-21-46-05.

Bryant K. Aaron argued the cause for appellant

(St. John & Wayne, attorneys; Mr. Aaron, of

counsel and on the brief).

Grace E. Kelly argued the cause for respondent

(Legal Services of Northwest Jersey, Warren

County Division, attorneys; Joanne A. Brandwood,

on the brief).

PER CURIAM

On July 15, 2004, plaintiff Jaclyn Rowbotham filed a complaint under the Prevention of Domestic Violence Act (DVA), N.J.S.A. 2C:25-17 to -35, alleging that defendant Addam Lindemann had harassed and stalked her. A temporary restraining order was entered the same day prohibiting defendant from having any contact with plaintiff, her mother or her sister. Following a hearing for a final restraining order, Judge Amy O'Connor, J.S.C. found that the defendant had harassed plaintiff in violation of N.J.S.A. 2C:33-4(c) and entered a final restraining order. The charge of stalking was dismissed. Defendant appeals.

Plaintiff and defendant met in junior college and began dating in November 2003. Plaintiff became pregnant with defendant's baby in early 2004. She testified that defendant committed acts of violence against her before and during her pregnancy. She said defendant twisted her wrists and ankles, held her by the neck against a wall and threatened to punch her in the stomach to kill their unborn child. In April 2004, plaintiff ended her romantic involvement with defendant. While she agreed to continue contact regarding the progress of her pregnancy, she repeatedly informed defendant that their relationship was over. Nonetheless, defendant continued to call her frequently, up to ten times a week. She testified she tried to limit their conversations to matters relating to the child, but defendant would repeatedly seek reconciliation. Moreover, she testified that between May and mid-July defendant appeared unannounced at her home over twenty times, often at night, and would refuse to leave. He also visited her at work despite her protests that she was afraid she would be fired. Five or six times he waited for plaintiff after work in the parking lot to implore her to reconcile. She said that a week before she filed the complaint defendant came to the JCPenney store where plaintiff worked and would not leave for half an hour. He returned three days later and left only after plaintiff implored him to do so eight times.

On July 14, defendant emailed plaintiff before she left for work and asked her to have dinner with him. She emailed a reply that dinner was too intimate but that she would meet for lunch sometime to talk about the baby. When plaintiff returned to work from lunch that day, defendant called her twice, but plaintiff did not answer after seeing defendant's name on the caller ID. Defendant then sent her a text message asking to see her later that day. Shortly thereafter plaintiff answered her cell phone, and it was defendant calling again to ask if he could see her later. Plaintiff refused and hung up. She said defendant called on her cell phone four more times, but she did not answer. Defendant then sent three or four text messages asking why she was not picking up the phone and why she did not want to see him when he missed her and wanted to see her.

At 4 p.m. that day the defendant showed up at the JCPenney store, telling plaintiff he was in the shopping mall to meet a friend and wanted to talk with her. Plaintiff testified defendant followed her through the store, and began arguing and flailing his arms which created a scene in front of plaintiff's co-workers and customers. Plaintiff repeatedly asked defendant to leave, but he refused. She began crying out of frustration, and pushed defendant away when the defendant tried to hug her. Eventually defendant left, and plaintiff worked the remainder of the day. She admitted that that night she did write a text message to defendant saying she thought he would make a good father but did not agree to see him. The next day, July 15, 2004, she filed a domestic violence complaint.

Defendant testified that he never physically abused plaintiff and never harassed her on the phone, at her home or at her work. He explained he was at the shopping mall on July 14, 2004, waiting for a friend and had no intention of bothering plaintiff. He claimed plaintiff was sending him mixed messages about their relationship and that when she finally asked him to confine their conversation to their unborn child, he complied with her wishes.

Judge O'Connor resolved the issues of credibility in favor of plaintiff, finding that defendant's conduct constituted harassment by his escalating pattern of unwelcome contacts which equated to serious annoyance under N.J.S.A. 2C:33-4(c). Accordingly, she granted plaintiff a final restraining order.

Findings by a trial judge are binding on appeal when supported by adequate, substantial, and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). The need to give proper deference to factual findings is nowhere more apparent than in family law matters. As stated by the Supreme Court, "[M]atrimonial courts possess special expertise in the field of domestic relations ... [and] [b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 412-413 (1998). We will not disturb factual findings unless "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, supra, 65 N.J. at 484 (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963). In this instance, the credibility and factual findings of Judge O'Connor are well supported by the trial record.

Enacted to protect victims of domestic violence and afford family court judges broad discretion in furnishing remedies, the DVA incorporates certain criminal offenses including harassment as defined in N.J.S.A. 2C:33-4 to constitute acts of domestic violence. A person is guilty of harassment if "with the purpose to harass another, he ... [e]ngages in any ... 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(c). "Serious annoyance" is interpreted to mean "to weary, worry, trouble, or offend," State v. Hoffman, 149 N.J. 564, 581 (1997). Here, plaintiff testified that defendant's repeated efforts and actions to rekindle their romance were upsetting. Although she told him unequivocally that she would speak with him only about their baby, he persisted to alarm or annoy her.

Defendant argues that Judge O'Connor erred because there was insufficient proof that he intended to harass plaintiff. He relies upon Sweeney v. Honachefsky, 313 N.J. Super. 443 (App. Div. 1998), in which we held that a jilted suitor's communications in an effort to rekindle romance did not violate the harassment statute. However, Sweeney is factually distinguishable because there a brief dating relationship was followed by only one week of phone calls and visits by the defendant in an effort to revive the relationship. In this case defendant's actions continued over two months. Moreover, unlike Sweeney, there was testimony of past violence by defendant against plaintiff. Similarly, Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995), is inapposite. There we stated that arguments involving family finances combined with threats of drastic financial measures and termination of plaintiff's phone service did not satisfy the standard of domestic violence under the DVA in the absence of any history of past violence in the relationship. In the factual context herein there was ample proof to show an intent to harass as well as the other requisite elements of harassment under N.J.S.A. 2C:33-4(c).

 
Affirmed.

(continued)

(continued)

7

A-0710-04T1

RECORD IMPOUNDED

November 9, 2005