JUDITH KERGIDES v. JOHN KERGIDES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2034-04T1

JUDITH KERGIDES,

Plaintiff-Respondent,

v.

JOHN KERGIDES,

Defendant-Appellant.

______________________________________________

 

Argued December 14, 2005 - Decided February 7, 2006

Before Judges Conley and Weissbard.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Camden County, Docket No. FM-04-1226-05.

David A. Capozzi argued the cause for appellant.

Dara L. Paley argued the cause for respondent

(Portella & Bjorklund, attorneys; Ms. Paley

on the brief).

PER CURIAM

Defendant John Kergides appeals from the entry of a final domestic violence restraining order (FRO) in favor of his wife, plaintiff Judith Kergides. We affirm.

For the most part, the events leading to the FRO took place on one day, October 16, 2004. At that time, the parties had been married for approximately sixteen months. They had separated in August 2004, slightly over a year after their marriage. Prior to their separation, the parties had lived together at 25 Garden Avenue, Hilltop; plaintiff continued to live there after the separation. The record is not clear concerning the ownership of the property, although certain testimony by defendant seemed to suggest that the house was owned by plaintiff's father.

Plaintiff was away from home from October 14-19, 2004. On October 16, defendant entered the home, ostensibly to remove certain personal items belonging to him. When plaintiff returned on October 19, she discovered the following: (1) a large hole in the wall near the bottom of the steps descending from the second floor; a larger area around the hole exhibited cracks in the plaster; (2) all of plaintiff's photographs were gone, with the exception of one that had been torn in half; the remaining half of the picture depicted only plaintiff and had the word, "loser," written on it with an arrow pointing from that word to plaintiff; (3) the power pack wire to plaintiff's answering machine was cut; and (4) a BB gun and knives were missing. In her testimony, plaintiff described the house as being generally "disheveled, things turned around."

Tracy Albertson, a friend of plaintiff, testified that she was at the property adjoining the marital residence on October 16, 2004, at which time defendant spoke with her. He referred to a prior domestic violence complaint by plaintiff having been dismissed and said, "I'll get even." Finally, plaintiff's father, Harry Wilson, testified that after the prior complaint had been dismissed, defendant called him, stating that he only wanted "what was in the house that belonged to him," and asked if Mr. Wilson believed that his daughter was only a dancer in light of her arrest for prostitution. Wilson, however, already knew of the arrest and believed that it came about as a result of the police, who were seeking to "make a statement to the owners" of the establishment where plaintiff was employed, raiding the business and "trying to make a case out of it, and it didn't happen." Defendant also told Wilson that he could not find a sapphire ring and some Playstation materials belonging to him, and he was afraid plaintiff might have taken them. He indicated that if he could not find the missing items, he would have plaintiff arrested. However, he later called back and said he had found the Playstation and that "the ring has to be around someplace."

Plaintiff testified that she feared for her safety and that of her eleven-year-old daughter. Defendant had told plaintiff that as long as he didn't touch her, he could "get me upset other ways."

Defendant testified that he entered the marital home on October 16 to remove items belonging to him. He testified that the hole in the wall depicted in the exhibits had been initially caused some eight or nine months earlier in the course of moving a box spring for a mattress, part of a new bedroom set for plaintiff's daughter. On October 16, defendant was dragging a bureau down the stairs when his body became wedged between the bureau and the wall, causing the hole to be enlarged accidentally. Defendant admitted to tearing up the photograph, removing his own image from it, and writing "loser," in retaliation for plaintiff destroying personal papers of his. He denied damaging the answering machine, leaving the house in disarray, and having any conversation with Albertson. He also admitted the conversation with Wilson concerning his missing property, stating that he never did find his sapphire ring. Finally, he admitted the conversation with Wilson about plaintiff's employment and her arrest.

In concluding that plaintiff had established the elements necessary for entry of an FRO, the judge said:

The court has reviewed the pleadings in this case, and has listened to the testimony of the parties. There's a family relationship here. There's a husband and a wife. The wife complains of certain actions by the husband which she contends constitute both harassment and criminal mischief. The standard of proof or the quantum of proof, rather, that is required to be met is a preponderance and that means did this occur more likely than not.

The court is mindful of the continuing history of allegations of domestic violence in this case and the court is mindful that it tried a previous case and dismissed it because it felt that the burden of proof had not been met. It also felt that the actions complained of didn't constitute a violation of any one of the 14 criminal statutes.

This is a new matter. This is a matter which alleges that certain conversations were conducted by the defendant with friends or relatives of the plaintiff after the last dismissal and that when the defendant returned to the marital residence to obtain certain of his property or joint property which is not the subject of this hearing, that he committed certain acts of vandalism on the property.

I think it's important for the court to distinguish between what may constitute domestic violence and what does not constitute domestic violence. It is clear that the threat of an arrest of someone for the theft of something does not constitute an act of domestic violence. Whether it is made to one person or to another, to tell a person that someone may have stolen a piece of their property, as in where is my sapphire ring and where's my Playstation, is not an act of domestic violence.

To tear a photo in half and to write the word, loser, on the top of a photo with an arrow pointing to another party, counsel is right, it's juvenile. It may even be moronic, but it is not an act of domestic violence.

In order to determine whether this -- the series of activities undertaken by Mr. Kergides between approximately October 14th and the 19th constitute domestic violence, we have to look, in part, at what the domestic violence statue is about, and in order to do that, we have to examine the case of Corrente v. Corrente, 281 N.J. Super. 243 [(App. Div. 1995)]. And Corrente tells us that domestic violence is a term of art which describes a pattern of abuse of a controlling behavior which injures its victim.

The court, then, asks whether the behavior and actions of Mr. Kergides comply with this definition of what constitutes an act of domestic violence. The court finds that by a preponderance of the evidence an act of criminal mischief has occurred. The court moved has moved many heavy pieces of furniture. The court is an old guy. It is clear that the impact and the hole in this drywall was created not by a shoulder, but by the end of a piece of furniture.

Now, had it not been criminal mischief, the five days between when that all occurred and when Ms. Kergides returned could have resulted in the very simple act of sheetrock and drywall tape, spackle, but it didn't happen. The court does not believe that there was a pre-existing hole. The court does not believe Mr. Kergides' testimony that he bounced his maple dresser down the stairs and got wedged between it and the wall and his shoulder put a hole in the wall. Unbelievable. Not credible.

The court further does not believe his testimony that he did not cut the wire to the answering machine. The court also does not believe Mr. Kergides' testimony that he had no conversation with Ms. Albertson and does believe that when he said to Ms. Albertson, "I will get even," that that was a threat. That was a threat. That was harassment.

Overall, Mr. Kergides' behavior in this context, especially in the context of raising to this young woman's father questions about her background and her profession and certain allegations, the court finds is despicable. The court finds that that conversation is part of a continuing attempt to control, dominate and otherwise use this young woman. The court further believes this young woman's testimony that her husband said to her as long as I don't touch you, I can do whatever I want.

I've sat here -- this is the second time I'm trying this case. I've observed these parties' demeanors. I believe that this woman is genuinely afraid for herself and for her daughter. I believe that Mr. Kergides, as I observed his demeanor, listened to his tone of voice, watched his body English, listened to the details of his explanations has committed an act of and has participated in a pattern of domestic violence which warrants the imposition of a final restraining order.

Essentially, the judge concluded that defendant had committed criminal mischief, N.J.S.A. 2C:17-3, by damaging the wall and cutting the answering machine wire. The statute prohibits purposely or knowingly damaging the tangible property of another. Defendant argues that any property damaged on October 16 was jointly owned and, therefore, not the "property of another." We reject that crabbed interpretation of the statute. Assuming, for lack of contrary proof, that the house and the answering machine were jointly owned, defendant's acts, as found by the judge, fall within the statutory prohibitions. See N.J.S.A. 2C:20-1(h). Any other construction would theoretically permit defendant to destroy the entire contents of the marital home, in order to put fear into plaintiff, without sanction. We do not subscribe to an interpretation that could yield such a result.

The judge also found that the statement to Ms. Albertson constituted a threat and, therefore, fell within the harassment statute. Clearly, defendant made a communication in a "manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4a; see State v. Hoffman, 149 N.J. 564, 580 (1997). Although the communication was not made directly to plaintiff, it is inferable that defendant made it believing that it would be conveyed by Albertson, plaintiff's friend, to plaintiff. Given the context of the events, defendant's statement was a threat, was intended to be a threat, and was such that a reasonable person would believe it to be a threat. Cesare v. Cesare, 154 N.J. 394, 402 (1998). The judge's findings support the conclusion that the threat was made with the required purpose to harass.

While not finding any act of domestic violence in defendant's conversation with plaintiff's father, the judge properly concluded that the conversation was "part of a continuing attempt to control, dominate and otherwise use this young woman." That conversation, in effect, provided background against which to judge the specific acts of domestic violence, the criminal mischief and the harassment. Significantly, the judge also found credible plaintiff's testimony that defendant told her he could do anything he wanted as long as he "did not touch her."

Thus, this case is different from, and not controlled by, Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995), where we found insufficient the single statement, "I'll bury you." In the same vein, we have examined each of the cases cited by defendant and find them distinguishable. See L.D. v. W.D., 327 N.J. Super. 1 (App. Div. 1999); J.N.S. v. D.B.S., 302 N.J. Super. 525 (App. Div. 1997); Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995); D.C. v. T.H., 269 N.J. Super. 458 (App. Div. 1994); Murray v. Murray, 267 N.J. Super. 406 (App. Div. 1993).

 
Defendant seeks to isolate each element relied upon by the trial judge and to have us conclude that it was innocuous. However, the trial judge was entitled to view each incident against the backdrop of the others, so long as one or more domestic violence predicate offenses were established. We conclude that such was the case here. The judge's findings were supported by "competent, relevant and reasonably credible evidence" and do not "offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The trial judge was in the best position to evaluate the credibility of the witnesses, Pascale v. Pascale, 113 N.J. 20, 33 (1988), and we must defer to those credibility determinations. In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Judge Holden's factual findings and legal conclusions were well supported by the record and we find no basis on which to overturn them.

Affirmed.

 

Two photos of the damage were submitted in evidence by plaintiff. We obtained these exhibits and have examined them.

We have also viewed this exhibit.

Defendant had apparently also taken a "big television" but plaintiff testified that the television "doesn't have anything to do with this."

(continued)

(continued)

10

A-2034-04T1

RECORD IMPOUNDED

February 7, 2006