C.M v. EDDY GONZALEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0300-08T30300-08T3

C.M.,

Plaintiff-Respondent,

v.

EDDY GONZALEZ,

Defendant-Appellant.

________________________________

 

Submitted September 16, 2009 - Decided

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-386-09.

Juliana E. Blackburn, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from the entry of a final restraining order (FRO) finding that he committed an act of domestic vio lence on July 31, 2008, and barring him from having any contact with plaintiff C.M. We affirm.

Plaintiff alleged in her complaint that defendant went to her place of business, a hair and nail salon, to get his eye brows waxed while he was dressed in full police uniform with a gun holstered on his hip even though defendant "was fired from Newark Police in January 2008." The complaint also indicates "that def is always," but the sentence was not finished. As to prior acts of domestic violence, plaintiff alleged, apparently continuing the above unfinished sentence, that defendant had been: "harassing by constantly calling her at her job for the past one year def has been follwing (sic) pla everywhere she goes. Pla is fearful for her safety." Thus, the prior acts of domestic violence were constantly calling plaintiff at her job and following plaintiff everywhere she went, causing her to be fearful for her safety. Plaintiff alleged the criminal offenses were harassment and stalking.

Stripped of inadmissible hearsay, the evidence, viewed in a light most favorable to plaintiff, established that plaintiff and defendant had had a long-term dating relationship, which plaintiff ended in the summer of 2007. Thereafter, defendant called plaintiff constantly. At first, she tried to be friendly and supportive, but as time went by she assiduously sought to end any further contact with defendant. She testified that defendant would call her at her place of employment, and when he did so, she would hang up. She changed her cell phone number, but he surreptitiously took her cell phone and dialed his own number so that he would have a record of her new number on his cell phone. He was not discouraged until March 2008 when the telephone calls stopped. However, defendant called her again in June 2008. Plaintiff told him "don't call me" and hung up.

Defendant also followed plaintiff every day after she ended their relationship in the summer of 2007. Although he stopped following her so often in March 2008, in the five months prior to trial, she would see him following her once a week. On one occasion, she saw him at a picnic in Harrison, and on another, at Adega Lounge for her cousin's birthday. Plaintiff saw defen dant in many places. Additionally, plaintiff and defendant were both members of the same gym and he would be there every morning when she was there. If she left, he would leave; if she returned, he would return, thus timing his arrivals and depar tures to coincide with hers. Plaintiff told defendant many times to leave her alone. Although it was not alleged in her complaint, when defendant asked plaintiff during cross-examina tion if he had ever put her in fear for her life, she responded that he did when he choked her in the facial room at her salon.

Plaintiff's brother also testified to the past history of harassment. When he left his cousin's birthday party, he saw defendant "roaming around the street, I seen (sic) his truck." On another occasion after leaving plaintiff's nail salon, defendant approached the brother's car and discussed things defendant was doing and business opportunities he had. Defen dant then said he was still in love with plaintiff, and her brother said "it's time for him to let go and move on a little bit." This occurred about four months prior to trial. On cross-examination, the brother said that defendant was parked across the street from the Adega Lounge rather than "roaming around the street."

On July 31, 2008, defendant went to the nail salon owned by plaintiff. She was not at work that day. Defendant had his eyebrows waxed by plaintiff's sister and left. He was in full police uniform with a gun at his hip. Defendant did not ask anything about plaintiff or make other mention of her while he was at the salon. There were no incidents of any kind.

Plaintiff learned of defendant's patronage of her salon from her sister. Plaintiff's sister asked plaintiff if defen dant was still a police officer. Plaintiff then called a member of the Internal Affairs Bureau at the Newark Police Department and inquired about defendant's job status. The response to her inquiry led plaintiff to file the domestic violence complaint on August 1, 2008.

The events of July 31, 2008, were established through the testimony of plaintiff's sister and another employee of the salon. Defendant only denied wearing a uniform and gun; he did not deny that he was no longer a Newark police officer nor did he deny that he went to the salon on the day in question. Plaintiff testified that defendant's conduct on July 31, 2008, made her "really scared because, to me, that's not normal. Somebody that is not a cop anymore, wearing a uniform, and a gun in a public place."

The judge found that plaintiff and her witnesses were cred ible and, inferentially, found that defendant was not credible, at least where his testimony contradicted that of plaintiff and her witnesses. The judge's fact-findings were limited:

There is testimony that the defendant came to the business place of the plaintiff wearing a uniform, a police uniform. There's been testimony that the defendant has called. And that for the last five months he's been calling her at least once a week. That she sees him in the mornings at the gym, that he follows her.

And that on July 31, 2008 he came to her place of business in a uniform. And that testimony is further supported by the testimony of the two witnesses that were provided.

Therefore, I find that the Defendant has committed an act of domestic violence, namely harassment. He has made and caused to be made communications in a manner to cause annoyance or alarm. And he has repeatedly called the plaintiff and come to her place of business when their relation ship had terminated, and the defendant was aware that she no longer wanted to communicate with him, and he has come to the gym repeatedly. I find that testimony to be credible.

The judge entered an FRO that day. This appeal followed.

On appeal, defendant contends there was not adequate, sub stantial, and credible evidence to support a finding that he harassed plaintiff contrary to N.J.S.A. 2C:33-4. He asserts his only purpose in going to plaintiff's salon was to have his eye brows waxed, that his visit was uneventful and he never communi cated with plaintiff while there. He contends there was no evidence of a purpose to harass.

As to a prior history of domestic violence, defendant points out that plaintiff never filed any prior complaints and that plaintiff was not a credible witness regarding the prior history. He asserts there was no evidence respecting the con tents of his various telephone conversations with plaintiff to demonstrate a purpose to cause annoyance or alarm. In any event, defendant points out that plaintiff denied that he called her at her job, contrary to what was alleged in her complaint.

Defendant also alleges the judge erred in finding prior acts of domestic violence that were not alleged in the com plaint, such as continually following her to and from the gym when he had every right to go there because he was a member of the gym and plaintiff could have changed her membership if she did not like seeing him. Also, he asserts the judge erred in finding that he had been calling her once a week for the past five months when plaintiff admitted that defendant had called her only once in the five months prior to trial.

Appellate review of a trial judge's fact-finding function is limited; such findings are binding on appeal if sup ported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Judges that "hear the case and see the wit nesses . . . are in a better position to evaluate the credibil ity and weight to be afforded testimonial evidence." N.J. Div. of Youth & Fam ily Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "Where the issue to be decided is an 'alleged error in the trial judge's evalua tion of the underlying facts and the implications to be drawn there from,' we expand the scope of review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omit ted). However, even in this lat ter instance, the reviewing court will "nonetheless accord def erence to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007).

The Supreme Court has observed that matrimonial courts pos sess special expertise in the field of domestic relations. Cesare, supra, 154 N.J. at 412. "Because of the family courts' special jurisdiction and expertise in family mat ters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. While we remain cognizant that we owe no special deference to the trial judge's conclusions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we will not "second-guess [Family Part judges' fac tual] findings and the exercise of their sound dis cretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

When the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33 (the Act), was adopted, the Legislature declared that "domestic violence is a serious crime against society" because "there are thousands of persons . . . who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants." N.J.S.A. 2C:25-18. Thus, "the focus of the Leg islature was regular serious abuse between spouses. That this is so is underscored by the references to torture, battery, beatings, and killing in the findings." Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995); Corrente v. Corrente, 281 N.J. Super. 243, 247 (App. Div. 1995).

The Legislature intended the Act "'to assure the victims of domestic violence the maximum protection from abuse the law can provide.'" Peranio, supra, 280 N.J. Super. at 53 (quoting N.J.S.A. 2C:25-18). Further, the Legislature

stress[ed] that . . . it is the responsibil ity of the courts to protect victims of vio lence that occurs in a family or family-like set ting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those reme dies and sanctions that are available to assure the safety of the victims and the public. To that end, the Legislature . . . encourages the broad application of the remedies available under this act in the civil and criminal courts of this State. It is further intended that the official response to domestic violence shall communi cate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the existing criminal laws and civil remedies created under this act will be enforced without regard to the fact that the violence grows out of a domestic situation.

[N.J.S.A. 2C:25-18.]

The term "victim of domestic violence" encompasses persons protected under the Act and includes persons who have had a dat ing relationship, as here. N.J.S.A. 2C:25-19d. "'Domes tic vio lence' means the occurrence of one or more of [fourteen spe cific criminal] acts inflicted upon a person pro tected under this act by an adult or an emancipated minor . . . ." N.J.S.A. 2C:25-19a.

In promulgating the Act, "the Legislature did not create a new class of offenses or inter dict acts which oth erwise were not addressed by the crimi nal law, but ensured that spouses [and other victims] who were subjected to criminal con duct had full access to the protections of the legal system." Peranio, supra, 280 N.J. Super. at 54; Corrente, supra, 281 N.J. Super. at 248.

The commission of any one of the fourteen enumerated crimi nal acts does not automatically warrant the issuance of an FRO, although "one sufficiently egregious action [may] constitute domestic violence under the Act." Cesare, supra, 154 N.J. at 402. Rather, in addition to proving one of the enumerated criminal offenses, the Act provides in pertinent part as follows:

[T]he standard for proving the allegations in the complaint shall be by a preponderance of the evidence. The court shall consider but not be limited to the following factors:

 
(1) The previous history of domestic violence between the plaintiff and defen dant, including threats, harassment and physical abuse; [and]

 
(2) The existence of immediate danger to person or property . . . .

[N.J.S.A. 2C:25-29a.]

"This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened." Corrente, supra, 281 N.J. Super. at 248.

One of the specified criminal acts is "harassment" in viola tion of N.J.S.A. 2C:33-4, which is the only specified act found to have been inflicted upon plaintiff. That statute provides in pertinent part:

[A] person commits a petty disorderly per sons offense if, with purpose to harass another, he:

 
a. Makes, or causes to be made, a com munication or communications anony mously or at extremely inconvenient hours, or in offensively coarse lan guage, or any other manner likely to cause annoyance or alarm;

 
b. Subjects another to striking, kick ing, shoving, or other offensive touching, or threatens to do so; or

 
c. Engages in any other course of alarming conduct or of repeatedly com mitted acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4 (emphasis added).]

Each statutory subsection is "free-standing, because each defines an offense in its own right." State v. Mortimer, 135 N.J. 517, 525, cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994).

[S]ubsection (a) proscribes a single act of communicative conduct when its purpose is to harass. Under that subsection, annoyance means to disturb, irritate, or bother. Sub section (b) (the assault and battery or physical contact harassment section) deals with touchings or threats to touch, and it does not require the intended victim to be annoyed or alarmed. In contrast to subsec tion (a), which targets a single communica tion, subsection (c) targets a course of conduct. Subsection (c) proscribes a course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy an intended victim.

[State v. Hoffman, 149 N.J. 564, 580 (1997) (emphasis added).]

The judge's fact-finding that defendant called plaintiff once a week during the five months prior to trial was clearly incorrect and not supported by the evidence. The testimony was that after they broke up in July 2007 defendant called her cell phone constantly until March 2008, even getting her cell phone number surreptitiously twice, and thereafter called her once two months before the August 2008 trial. Plaintiff admitted that she tried to be defendant's friend after they broke up and admitted that he was not constantly calling her at her office. There was no evidence that the content of the telephone calls was harassing, but it is clear that the making of the calls at some point in time became harassing simply because plaintiff wanted them to stop and defendant refused to accept that for some period of time.

Defendant also asserts that the judge erred in finding a prior history of domestic violence because plaintiff "sees him in the mornings at the gym, that he follows her." He argues there was no evidence of a purpose to harass and that the judge should not have considered this evidence at all because it had not been alleged in the complaint, citing L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999), and J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998). Neither of these cases is dispositive.

In L.D., supra, 327 N.J. Super. at 4, it was "unclear what facts the judge found and relied upon in reaching his conclusion that defendant harassed plaintiff." Much of the testimony was outside the four corners of the complaint and we held "it is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the com plaint." Ibid. We also noted "the only incident of alleged domestic violence mentioned in the complaint and discussed at the hearing was defendant's phone call to plaintiff's work place," but found defendant had no purpose to harass under N.J.S.A. 2C:33-4a in making that phone call, which merely advised plaintiff that he had moved her desk from their shared home office to their living room. Id. at 4-5. Furthermore, we did not consider the movement of the desk to be alarming conduct in violation of N.J.S.A. 2C:33-4c and noted that subsection (b) was not at issue in the case. Id. at 5.

In J.F., supra, 308 N.J. Super. at 389, the only alleged act of domestic violence was "'[l]eaving notes on [plaintiff's] vehicle while it was parked at her work place'" and the history of prior acts was an occasion when defendant slapped plaintiff's face. In addition to the allegations in the complaint, plain tiff testified defendant in the past also grabbed her by the throat, made harassing telephone calls, frequently drove past her house, spit in her face, and repeatedly called her a "'[w]hore, slut, bitch' and threatened to kill her." Ibid. The judge included all of these allegations in his fact-findings but did not mention the note left on plaintiff's vehicle. Id. at 390-91. We held that the mere leaving of a note on plaintiff's vehicle could not support a finding of domestic violence. Id. at 391. As to the prior acts other than the occasion on which defendant slapped and grabbed plaintiff by the throat, we found it was "clearly improper" and "a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic vio lence which are not even alleged in the complaint." Id. at 391-92 (citations omitted).

In this case, plaintiff clearly alleged as examples of prior acts of domestic violence that defendant had been follow ing her everywhere she went, making her fearful for her safety. That allegation is broad enough to encompass not only the daily occasions when defendant followed plaintiff out of the gym and followed her when she returned, but also the weekly occasions when she observed defendant following her elsewhere in the city where she lived. Unlike L.D. and J.F., the judge's fact-findings in this respect were not based on evidence outside the four corners of the complaint.

Even if they were, a prior history of domestic violence is not required to support an FRO. Cesare, supra, 154 N.J. at 402. Although defendant argues that he had no purpose to harass when he went to plaintiff's nail salon to have his eyebrows waxed, a purpose to harass may be inferred from all the surrounding cir cumstances. State v. Castagna, 387 N.J. Super. 598, 606 (App. Div. 2006) ("There is rarely direct proof of intent, and purpose may and often must be inferred from what is said and done and the surrounding circumstances." (citing State v. Siegler, 12 N.J. 520, 524 (1953)).

We are satisfied that plaintiff proved by a preponderance of the evidence that defendant violated N.J.S.A. 2C:33-4c. "Subsection (c) proscribes a course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy an intended victim." Hoffman, supra, 149 N.J. at 580. Plaintiff did not claim that defendant's mere presence at the gym was alarming. Rather, she testified she was alarmed that he left when she did and, if she returned, he did also. Further, she was alarmed when she observed him following her each week in other places. This course of alarming conduct culminated on July 31, 2008, when defendant went to plaintiff's nail salon. Although his mere appearance there after he had so clearly been told not to call her might have been alarming in itself, plain tiff testified that what alarmed her was his appearance in police uniform with a gun at his hip when he was no longer employed by the Newark Police Department. This conduct, in the context developed at the final hearing, would be alarming to any person in plaintiff's circumstances and it was entirely reason able to infer that defendant's purpose in doing so was to alarm plaintiff. Furthermore, as defendant himself elicited on cross-examination, this was not the first occasion on which he caused plaintiff alarm. Only the entry of an FRO would protect plaintiff from further harassment.

 
Affirmed.

(continued)

(continued)

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A-0300-08T3

RECORD IMPOUNDED

December 3, 2009