JOSE DAVID ALCANTARA v. ELEN RUSTAMOVA-ALCANTARA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3142-05T13142-05T1

JOSE DAVID ALCANTARA,

Plaintiff-Appellant,

v.

ELEN RUSTAMOVA-ALCANTARA,

Defendant-Respondent.

_______________________________________________________________

 

Submitted July 18, 2006 - Decided August 4, 2006

Before Judges Parker and Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Atlantic County, Docket No. FV-01-1114-06.

Sara de Celis Little, attorney for appellant.

Lummis, Krell & Baker, attorneys for respondent

(Rebecca J. Bertram, on the brief).

PER CURIAM

Plaintiff Jose David Alcantara appeals from the entry of a final domestic violence restraining order (FRO) against him (FV-01-1114-06) and denial of his application for a temporary domestic violence restraining order (TRO) (FV-01-1256-06). We affirm.

The parties were divorced in August 2003. They have one child, born on March 18, 2000. On January 10, 2006, plaintiff arrived at the former marital residence to pick up the child. His current wife, Tanya, and his two step-daughters were in the car with him. When he arrived, a police officer was waiting and advised him that a TRO had been entered based upon allegations that he had mailed photos of defendant and her prior criminal record to third parties. The police officer did not allow plaintiff to pick up the child.

The parties appeared pro se at the final hearing on FV-01-1114-06 on January 19, 2006. After hearing testimony on defendant's application for a FRO, Judge Vincent D. Segal (retired on recall) found the following:

The thrust of this case is that in the last seven months or so, maybe eight months, friends of [defendant's] teenaged daughter have received mailings that are presented here and marked P-1 through P-4 in evidence [and] are statements regarding a criminal prosecution against the [defendant] for a shoplifting offense back in . . . 1992 . . . . The other three documents in evidence are photographs, all off the [defendant], all different poses, all in a negligee, that the [defendant] said [were] taken by the [plaintiff] while they were married and received by friends of her teenaged daughter.

The envelopes, which bear no return addresses, are addressed, the photographs, to Alexis Jaeger, Ashley Mulligan and Diana Gilbert. The criminal charges are addressed to Ashley Mulligan, Diana Gilbert, Alexis Jaeger, and one is addressed just to a street.

. . . .

It is the [defendant's] contention that the photographs were taken by [plaintiff], that the criminal records and the photographs were mailed by him in July or August of this year and again last month. He denies those assertions.

The Court is more than satisfied by a preponderance of the evidence that he took the photographs in question; that he has, in fact, made these mailings, all seven of them, on two different occasions; that he has done so with only one purpose: to annoy or alarm the defendant . . . which is the definition of harassment under the criminal statute.

I am more than satisfied from the testimony presented here by the [defendant] and her witness and the denial of the [plaintiff], which I do not accept or find credible, that he made these mailings with the intent to harass. I am entering the final restraining order.

On February 9, 2006, plaintiff filed a domestic violence complaint in FV-01-1256-06 against defendant, but his request for a TRO was denied.

In this appeal, plaintiff argues:

POINT ONE

THE TRIAL COURT ERRED IN FINDING THAT APPELLANT'S CONDUCT CONSTITUTED HARASSMENT IN VIOLATION OF N.J.S.A. 2C:33-4 et. seq.

POINT TWO

DEFENDANT-APPELLANT'S RIGHT OF DUE PROCESS WERE VIOLATED WHEN THE FIRST TIME HE WAS ALLOWED TO VIEW THE EVIDENCE WAS ON THE DAY OF TRIAL; WAS NOT PERMITTED A POSTPONEMENT FOR HIS LAWYER TO PREPARE; WAS NOT GIVEN COPIES OF EXHIBITS OF STATEMENTS FROM THIRD PARTIES AND THE ALLEGED VICTIM ADMITTED TO SHREDDING EVIDENCE (AND WAS NOT GIVEN A PROBABLE CAUSE HEARING)

POINT THREE

THE COURT'S DENIAL OF APPELLANT'S REQUEST FOR A RESTRAINING ORDER AGAINST HIS FORMER WIFE AND MOTHER IN LAW WAS ERRONEOUS

In his first point, plaintiff essentially argues that the evidence was insufficient to support a finding that his conduct constituted harassment, N.J.S.A. 2C:33-4. We have carefully considered the record in light of plaintiff's thirty-three claims of error and we are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following.

The parties appeared pro se at the final hearing and Judge Segal gave both a great deal of latitude in presenting their respective positions. Although plaintiff did not have the opportunity to cross-examine defendant at the final hearing, he was represented by counsel on the motion for reconsideration and counsel was given the opportunity to cross-examine defendant, although defendant was still pro se and had requested an adjournment to have an attorney present. Moreover, plaintiff had the opportunity to raise objections at the final hearing but declined to do so. Indeed, most of the thirty-three claims of error in plaintiff's brief should have been raised in the final hearing. Because they were not, they are now subject to the plain error standard of review. R. 2:10-2. None of plaintiff's arguments rise to the level of plain error.

Plaintiff next argues that he was denied due process because the trial was not postponed when plaintiff saw the evidence for the first time on the day of the final hearing. Plaintiff relies on H.E.S. v. J.C.S., 175 N.J. 309 (2003), to support this argument, claiming that the facts of H.E.S. are similar to the facts here. His reliance is misplaced.

In H.E.S., the Court reversed an FRO based upon due process violations: first, because the trial court required the defendant to defend the domestic violence allegations less than twenty-four hours after he received the complaint; and second, because the trial court denied defendant's request for adjournment when the plaintiff asserted new allegations at trial which were not included in the complaint. Id. at 321. The Court held that defendant should have been given additional time to prepare a defense after late service of the complaint and the assertion of new claims. Id. at 324.

Here, plaintiff was served timely with the complaint and no new allegations were made at the final hearing. Moreover, at the January 27, 2006 hearing on plaintiff's motion for reconsideration, plaintiff - by then represented by counsel - was given the opportunity to further cross-examine defendant, who was still pro se and was denied an adjournment to have an attorney represent her.

Plaintiff claims that he should have been granted an adjournment to review the evidence produced on the day of the final hearing. But plaintiff, a practicing lawyer, did not request an adjournment and expressly declined to object to the letters and photos being admitted into evidence. Although plaintiff said he was "shocked" to see the documents, he also declined to voir dire defendant on them before they were moved into evidence.

We are puzzled by plaintiff's parenthetical claim in his second point heading that he was denied a probable cause hearing. Plaintiff has not cited, nor are we aware of any law that provides for a probable cause hearing on a domestic violence complaint other than that afforded a domestic violence plaintiff to determine whether a TRO should be issued. In short, we find no due process violations in the proceedings leading to the issuance of the FRO.

In his third point, plaintiff claims that Judge Max A. Baker erred in denying his request for a TRO against defendant. On February 9, 2006, plaintiff filed a domestic violence complaint alleging that on January 27, 2006, in the courthouse, defendant yelled curses at his current wife; on August 12, 2005, she blocked his car and yelled curses at him; and on August 21, 2005, she cursed at him on the telephone.

At the hearing on his application for a TRO, Judge Baker allowed plaintiff to present his claims, but discounted the 2005 allegations because of plaintiff's delay in filing a complaint. With respect to the January 27, 2006 claim that defendant and her mother cursed at plaintiff's wife in the courthouse, the judge determined that the conduct directed against plaintiff's wife was not sufficient for issuing a TRO to plaintiff. The judge noted that plaintiff is an "experienced attorney" who knew how to file a complaint but waited two weeks after the FRO was entered against him to file the complaint, leading him to conclude that plaintiff was not harassed by defendant's conduct.

Plaintiff complains that Judge Baker did not render "a fully written decision" denying the application for a TRO and that he did not listen to tapes of defendant's alleged harassment in 2005, thereby denying him due process.

We have carefully considered plaintiff's arguments in Point Three and we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). In these discretionary matters, we defer to the expertise of the Family Part judges. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

In summary, we find no merit in plaintiff's arguments and we affirm (1) the issuance of the FRO substantially for the reasons stated by Judge Segal on January 19, 2006; and (2) the denial of plaintiff's application for a TRO substantially for the reasons stated by Judge Baker on February 9, 2006.

Affirmed.

 

This appeal is presented with Mr. Alcantara as plaintiff. The principal issues on appeal, however, involve the domestic violence complaint filed by Ms. Rustamova-Alcantara in Docket No. FV-01-1114-06. Mr. Alcantara is the plaintiff in the domestic violence complaint he filed in Docket No. FV-01-1256-06.

(continued)

(continued)

8

A-3142-05T1

RECORD IMPOUNDED

August 4, 2006