PATRICIA A. RUTKOWSKI v. KERRY SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6752-04T36752-04T3

PATRICIA A. RUTKOWSKI,

Plaintiff-Respondent,

v.

KERRY SMITH,

Defendant-Appellant.

_________________________________________

 

Submitted May 17, 2006 - Decided July 13, 2006

Before Judges Winkelstein and Sapp-Peterson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FV-15-2636-05.

James W. Kennedy, attorney for appellant.

Respondent did not file a brief.

PER CURIAM

Defendant Kerry Smith appeals from a July 6, 2005, final restraining order (FRO) issued under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm.

On June 29, 2005, plaintiff Patricia Rutkowski filed a complaint seeking the ex parte issuance of a temporary restraining order (TRO) against defendant, who she had dated for the past two years. Plaintiff alleged that defendant had subjected her to ongoing harassment.

The Family Part judge issued the TRO and scheduled the matter for a final hearing to be held on July 6, 2005. Both parties appeared for the hearing on that date, but neither party was represented by counsel. Both parties testified. In addition, defendant called plaintiff's eighteen-year-old son, Joseph, who also worked for defendant, as a witness.

Plaintiff testified that she and defendant had been dating and living together for two years. Prior to the issuance of the TRO, although there had not been any physical violence, defendant had a history of constantly calling plaintiff names. On the morning of June 28, 2005, defendant awakened plaintiff and asked her whether she intended to wear a particular shirt. He told plaintiff that people could look down the shirt and then proceeded to refer to plaintiff as a "sleeping ho" (whore). Defendant also told plaintiff that she would be sorry if she obtained a restraining order and that a lot of people would be hurt. According to plaintiff, defendant referred to her as a "ho" approximately ten times. In addition, plaintiff told the judge that, on another occasion, defendant's mother was in plaintiff's front yard calling plaintiff a slut, and defendant responded, "Yeah, she's a slut just like everybody else in the neighborhood." Plaintiff testified that defendant "drinks and then he starts to get like violent where he'll throw things" like the cat and the remote. Plaintiff explained that defendant threw things in the yard and had slashed pool tubes with a razor. She told the judge that defendant frightened her. Plaintiff also testified that over the preceding two months, defendant had constantly accused her of cheating on him. Finally, plaintiff testified that defendant called her place of employment, "ten, fifteen times a day. It's constant."

Defendant denied all of plaintiff's allegations, except that he acknowledged referring to her as a "cunt" months earlier and telling her that people would be hurt if she secured a restraining order. As to the latter statement, defendant explained he was referring to himself and his three children from a former marriage.

Joseph testified that he had never witnessed any violence between his mother and defendant; nor had he witnessed the alleged name-calling. He did acknowledge observing defendant drinking one or two beers a day and calling plaintiff once or twice a day.

The trial judge found plaintiff proved, by a preponderance of the evidence, that defendant had committed an act of domestic violence, and he issued the FRO.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ERRED BY FINDING THAT AN ACT OF HARASSMENT HAD OCCURRED SUFFICIENT TO JUSTIFY THE ENTRY OF A FINAL RESTRAINING ORDER AGAINST DEFENDANT-APPELLANT.

POINT II

THE TRIAL COURT ERRED BY ELICITING INADMISSIBLE TESTIMONY FROM THE PLAINTIFF/RESPONDENT AND UTILIZING THIS TESTIMONY TO JUSTIFY THE ENTRY OF A FINAL RESTRAINING ORDER.

POINT III

THE TRIAL COURT ERRED BY ALLOWING THE PLAINTIFF-RESPONDENT TO TESTIFY ON MATTERS WHICH WERE OUTSIDE THE FOUR CORNERS OF THE COMPLAINT IN VIOLATION OF L.D. v. W.D., 327 N.J. SUPER. 1 (APP. DIV. 1999).

POINT IV

THE ENTRY OF A FINAL RESTRAINING ORDER AGAINST THE DEFENDANT-APPELLANT SHOULD BE SUMMARILY REVERSED BY THIS COURT PURSUANT TO R. 2:8-3(b).

POINT V

ALTERNATIVELY, THE TRIAL COURT ERRED BY FAILING TO RECUSE ITSELF FROM HEARING THE CASE INVOLVING A COMPLAINT FILED BY THE PLAINTIFF-RESPONDENT WHO WAS A COUNTY EMPLOYEE IN THE OFFICE OF PUBLIC INFORMATION AND WHO CAME TO COURT WITH A COUNTY EMPLOYEE ID BADGE FOR THE HEARING.

After carefully reviewing the record in the light of the arguments presented, we affirm substantially for the reasons articulated by Judge Ronald E. Hoffman in his oral opinion delivered on July 6, 2005. We add the following comments.

To warrant the issuance of a domestic violence restraining order based on a violation of N.J.S.A. 2C:33-4c, a plaintiff must establish "the purpose to harass, D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994); E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990), along with a course of alarming conduct or repeated acts intended to alarm or seriously annoy another, Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988)." Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995).

Here, the trial judge found:

The case comes down to a case of credibility. Largely what we have is Ms. Rutkowski against Mr. Smith. Unfortunately, Joseph Rutkowski was brought into this matter. His knowledge is very, very limited. He's really not in the presence of his mother and Mr. Smith on a regular basis. It sounds like rarely is he in their presence together. He goes to work, he comes home, he goes out. When he comes back, his mother is asleep, Mr. Smith is asleep. He really doesn't have much to add one way or another.

Ms. Rutkowski testifies to me very emotionally. She's crying. I find that her testimony is credible. I find that she's believable. I find that she's sincere, and I find that her version of what has taken place in the household is a fair, accurate version of what has taken place in the household.

Mr. Smith, I don't find your blanket denial of the allegations being made by Ms. Rutkowski at all credible. I do find that you have repeatedly called her these names. I do find that you are repeatedly ten to fifteen times per day calling her at her place of employment. I do find that you are making the statements to her and to the people who answer the phone with regard to who she's sleeping with. I do find that you did make the statement she alleges you made on June 28th with regard to, "You'll be sorry if you got a Restraining Order." I think her interpretation of that is a reasonable interpretation that she would be the subject of physical harm, and I do find that you made the statement that a lot of people would be hurt, and I interpret the same way.

When you look at the allegations separate and apart and individually, perhaps they don't in and of themselves rise to the level of acts of harassment, acts of domestic violence. But I think, sir, when you put everything together and see the entire pattern of what is taking place here, that your course of conduct does rise to the level of an act of harassment. I do find that based upon what is happening recently that -- and what happened specifically on June 28th with what I perceive to be a threat, she is reasonably in fear for her safety.

You seem to be of the feeling, Mr. Smith, that just because you provide financially for Ms. Rutkowski and perhaps her children, you have the right to act in any way you see fit; you have the right to verbally abuse her; threaten physical abuse; abuse things in the house. You do not have that right, sir. I don't care if you give her a million dollars a day. That does not entitle you to treat her in the manner in which I'm finding that you have treated her, sir.

I'm finding that she has met her burden. I'm finding that there is a history of domestic violence. I'm finding that based upon that history, based upon what has gone on in the house in the recent past that she is in fear for her safety; that you have participated in a course of alarming conduct or of repeatedly committed acts with the purpose to alarm or seriously annoy her. I find that you acted with the purpose to harass her. All these calls to her place of employment, constantly belittling her, humiliating her, calling names in front of family and in front of other people; it's harassment, sir. It's domestic violence. It's worth of a Final Restraining Order, and I'm going to enter a Final Restraining Order.

Judge Hoffman properly found that defendant's course of conduct evidenced a "purpose to harass." As our Supreme Court has noted, "a purpose to harass may be inferred from the evidence presented." State v. Hoffman, 149 N.J. 564, 577 (1997). "[A]n 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 v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Here, Judge Hoffman's conclusion that defendant's actions toward plaintiff were done with the "purpose to harass" her is fully supported by substantial, credible evidence in the record.

 
Affirmed.

(continued)

(continued)

8

A-6752-04T3

RECORD IMPOUNDED

July 13, 2006