COLLEEN O'BRIEN v. PATRICK O'BRIEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0905-08T20905-08T2

COLLEEN O'BRIEN,

Plaintiff-Appellant,

v.

PATRICK O'BRIEN,

Defendant-Respondent.

____________________________

 

Submitted August 5, 2009 - Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-0487-09.

Michael E. Spinato, P.C., attorneys for appellant (Paula Ortega, on the brief).

Lawrence H. Kleiner, L.L.C., attorney for respondent.

PER CURIAM

Plaintiff Colleen O'Brien appeals from the September 18, 2008 order of the Family Part denying her application for a domestic violence final restraining order (FRO) and dismissing her domestic violence complaint against defendant. For the reasons that follow, we reverse and remand.

The pertinent factual background, as set forth at the September 18, 2008 hearing in the Family Part, may be summarized as follows. Plaintiff and defendant Patrick O'Brien have been divorced since May 2003; they have four children. Plaintiff testified that during the marriage, defendant committed "[n]umerous domestic violence acts[,]" resulting in "several . . . final restraining orders all involving assaults." In July 2007, plaintiff obtained an order permitting her to relocate to North Carolina with the children.

Plaintiff owns a lake home in Thompson, New York; her family and many relatives have owned summer homes in the area for several decades. In July 2007, defendant was ordered to "relinquish all rights to the lake house, . . . including the right of access . . . ."

On August 14, 2008, plaintiff was at her lake home with the children. Defendant arrived uninvited and "circl[ed]" plaintiff's home in his truck. A few days later, on August 17, 2009, defendant arrived on a motorcycle at the home of plaintiff's aunt, which is located near plaintiff's lake home, where plaintiff was getting ready to take the children to the beach. Defendant pulled up behind plaintiff and she asked him what he was doing there. The parties' sixteen-year-old daughter then approached and had some "not-so-nice" words with defendant. Plaintiff again asked defendant to leave and he responded that "[he] was invited [t]here."

Defendant left and plaintiff got into her car and drove to her home where she believed defendant was going. She testified:

I went back to my house because someone had been going into my house a lot and leaving doors open and taking things, and I truly believed it was [defendant], and I think it's just his manipulation games and way of scaring me. So, I went to my house because I didn't want him to do anything to my house. . . . I pulled in the driveway. And before I could get inside . . . , he came right around, pulling up to the house . . . .

. . . .

He said to me, "Where is he, you fucking whore? Where's your nigger friend? I'm going to fucking kill both of you.

. . . .

At that time, I told him if he didn't leave immediately, I was going to call the Sheriff's [de]partment. I got a glimpse of his license plate number. And as I was dialing, he told me, I will be back, I will be back for both of you.

Defendant then left. Plaintiff filed a domestic violence temporary restraining order (TRO) in New Jersey on the following day.

Plaintiff testified that she is "a nervous wreck. . . . He just won't stop. This is just never ending. . . . He's been out of my life for nine years, and he will not give it a rest. I am scared. . . . I cannot sleep. . . . I'm always looking over my shoulder." Plaintiff confirmed that she and the children reside in North Carolina; however, she sought an FRO in New Jersey because the parties "have ongoing actions here . . . [and her] whole family's here."

Defendant testified that since plaintiff relocated to North Carolina, he has had no parenting time with the children. The order permitting plaintiff to move provided that parenting time would abide further order of the court or agreement by the parties; neither had occurred as of the hearing date. Defendant stated, however, that he had no motion pending before the New Jersey Family Part to address this issue.

Defendant denied that he was in Thompson, New York, on August 14, 2008, stating, "I have no knowledge what she's talking about." Regarding August 17, defendant stated:

I was invited to a friend's house in Hancock, New York, which is past the lake. Sunday morning, I got up, I took a ride. I stopped in Chester, New York, which is before the lake, at a friend's house. I was there for approximately an hour . . . .

. . . .

I rode up to the lake. I also wanted to see if I could see my son, [K.], before they went [back] to North Carolina. . . . I went by [plaintiff's aunt]'s house . . . because that was the first place to stop. They frequent there. Their family hangs out together there. . . . I felt that it was a good possibility that [K.] might be there. At no time did I get off my motorcycle, I didn't shut it off and I never left the roadway, I never put a foot on private property. As I pulled up to the house, [plaintiff] took her phone out, started screaming and yelling, and I said . . . I'm here for one reason only, I want to see [K.]. Can I please speak to [him]? I didn't curse. I didn't yell. I didn't scream.

My daughter c[a]me up behind me. She started yelling and screaming at me. What am I doing there?

Defendant acknowledged that he made no "advance arrangements" to see his son. He thought he "might be able to take him for a ride, have a little private time with him." Defendant denied that he intended to "threaten or . . . cause any problems." He "saw the situation was not going to go anywhere. So, [he] drove away."

Defendant then rode to plaintiff's home and stated that "[s]he tailgated [him] all the way . . . so she could get to the house before [him]." Defendant testified that he "calmly stopped in front of the house in the roadway, on the bike, never shut it off, and said, is [K.] here, can I see [K.]?" Plaintiff "got the phone out[,]" and defendant decided to leave; he told plaintiff: "I'll see you in court because [they] had a court date two days ago. . . . [H]e drove away, and that was the end of it."

Defendant denied "cursing, screaming, foul language, [and] using the 'N' word," adding that "[he] wouldn't do anything like that. Absolutely not." Defendant asserted that he has "had absolutely no contact with [his] nine-year-old son in 16, 17 months now."

On cross-examination, defendant was confronted with a June 28, 2007 Bergen County Family Services report prepared in conjunction with plaintiff's then-pending application to relocate to North Carolina. That report recommended that defendant "be evaluated for alcohol abuse and follow any treatment recommendations . . . [and] should also undertake individual counseling to help him understand and overcome his denial of responsibility in the failed relationship with his children." Defendant denied he needed such counseling and stated that he had not undergone the recommended evaluation. He did not "believe [he has] a failed relationship with [his] children."

Defendant stated that he had a motion pending before another Family Part judge to terminate his alimony; plaintiff's counsel confirmed that a hearing had been scheduled for September 29, 2008, on that issue. Defendant admitted that he had hired a private investigator to look into plaintiff's "living arrangements" in North Carolina. The report indicated that plaintiff was "cohabitating with a man by the name of Curtis[,]" who is African-American. Defendant denied that he resented plaintiff living with another man and that this man was African-American. He "just d[id]n't see why [he was] paying alimony."

In his bench decision, the judge stated that he "believe[d] [plaintiff's] testimony[,]" adding that plaintiff "ha[d] testified truthfully after what has obviously been a terribly contentious divorce, which continues to be terribly contentious." The judge found that the 2007 order permitting plaintiff and the children to relocate to North Carolina left the parties "hanging as to visitation, . . . [a]nd . . . that is the root of a lot of what has been going on here." The judge also found that "prior to the divorce, there were many acts of domestic violence as found by prior judges."

The judge told defendant, "I believe your testimony up to the point where you say you didn't call her a whore. I believe you did. . . . I find that you did threaten to kill the both of them."

The judge concluded, however, that "a reasonable [person] wouldn't have taken [defendant's] threat seriously . . . ." The judge stated:

So, . . . I don't believe that [plaintiff] actually believed that [defendant] was going to kill [her]. . . . I find that [defendant] did make the terroristic threat, which is an act of domestic violence. But I measure it by that objective standard and I find that it wasn't a threat that [defendant] actually intended to carry out. And . . . in view of the history of the parties, . . . I don't believe the plaintiff actually felt [defendant] intended to kill her then.

The judge further found that defendant harassed plaintiff on August 17, 2008, within the purview of N.J.S.A. 2C:33-4(a), and that defendant stalked plaintiff in violation of N.J.S.A. 2C:12-10. After finding these two additional predicate acts under the domestic violence statute, and stating that he was "confident that there are a lot of acts of domestic violence between these parties[,]" the judge ruled:

I find [that defendant] did [commit predicate acts under the statute] . . . [b]y a preponderance of the evidence . . . .If [defendant doesn't] get it this time, the next time . . . I have no doubt in my mind that a final restraining order will issue. But at this time, . . . I'm not going to issue a final restraining order because I do think [defendant] get[s] it.

After plaintiff filed her notice of appeal, the trial judge issued a supplemental written decision on October 27, 2008, adding the following comments:

The [c]ourt finds that as to the predicate events of August 14 and 17, 2008, the testimony of the [p]laintiff was more credible than that of the [d]efendant, . . . by a preponderance of the evidence . . . .

. . . .

The [c]ourt also finds that the root of the events on August 14 and 17, 2008, l[ies] in the July 26, 2007[] [o]rder permitting the [p]laintiff and the children to relocate out of state with no provision for parenting time . . . . No rationale for the relocation was contained in the [o]rder, although it was by consent.

The judge reiterated that defendant had committed three predicate acts constituting domestic violence: terroristic threats, N.J.S.A. 2C:12-3(b); stalking, N.J.S.A. 2C:12-10; and harassment, N.J.S.A. 2C:33-4(a), adding:

In the instant case, there is no doubt that the parties present with a long history of domestic violence and that while the current acts committed on August 14 and 17, 2008, are modest in comparison to prior acts testified to by the [p]laintiff, the predicate incidents rise to the level of domestic violence because of the history of violence.

Citing Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), the judge concluded that "[t]he timing of the filing of the [d]omestic [v]iolence [c]omplaint by the [p]laintiff in comparison to the pend[e]ncy of the [d]efendant's motion certainly smacks of a situation envisioned by the Appellate Division, particularly in light of the parties' over familiarity [sic] with the legal system." The judge added: "The relocation of the plaintiff to North Carolina has separated the parties by over 500 miles, distance enough in the [c]ourt's opinion to create a sufficient protective barrier."

On appeal, plaintiff presents the following argument for our consideration:

THE TRIAL JUDGE ERRED BY FAILING TO ISSUE A FINAL RESTRAINING ORDER NOTWITHSTANDING THE TRIAL JUDGE'S FINDING THAT DEFENDANT HAD COMMITTED ACTS OF HARASSMENT AND STALKING. BECAUSE THE TRIAL COURT JUDGE MISAPPLIED THE OBJECTIVE STANDARD OF THE TERRORISTIC THREAT STATUTE THE JUDGE'S DETERMINATION THAT DEFENDANT'S THREATS DID NOT CONSTITUTE TERRORISTIC THREATS WAS AGAINST THE WEIGHT OF THE EVIDENCE.

We note initially that, contrary to plaintiff's contention, the trial judge did find that defendant "committed an act of [d]omestic [v]iolence . . . by making a [t]erroristic [t]hreat under [N.J.S.A.] 2C:12-3(b)[,] when with purpose to put her in imminent fear of death he stated to the [p]laintiff . . . 'I'm going to kill the both of you[,]'" adding that he "w[ould] be back for both of [them]."

Thus, the judge found that defendant had committed three "acts of domestic violence" under N.J.S.A. 2C:25-19. Notwithstanding these findings, the judge declined to enter an FRO, citing Silver v. Silver. We conclude, however, that the trial judge's reliance upon Silver was misplaced and that the judge erred in denying plaintiff an FRO.

In Silver, supra, 387 N.J. Super. at 122, the trial judge had found that the "defendant had committed acts of both assault and criminal trespass against [the] plaintiff, [but] . . . ruled that there was not 'an act of domestic violence here.'" In reversing, we stated:

We view the task of a judge considering a domestic violence complaint, where the jurisdictional requirements have otherwise been met, to be two-fold.

First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:35-19a has occurred. . . .

. . . .

The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim. . . .

. . . .

Although this second determination . . . is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse.

[Id. at 125-27.]

The statutory factors requiring evaluation are:

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

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

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;
 
(5) In determining custody and parenting time the protection of the victim's safety; and
 
(6) The existence of a verifiable order of protection from another jurisdiction.
 
[N.J.S.A. 2C:25-29(a)(1)-(6).]

The factors requiring analysis here include: (1) the parties' "previous history of domestic violence"; (2) the "existence of immediate danger" to plaintiff; and (3) the "best interests of the victim[.]" Ibid. We conclude that the trial judge's evaluation of these factors was not only minimal, but also inconsistent.

First, the trial judge concluded that plaintiff was not in need of an FRO because "[t]he timing of the filing" of her domestic violence complaint "in comparison to the pend[e]ncy of . . . [d]efendant's motion [to eliminate alimony] certainly smack[ed] of [the] situation" this court "envisioned" in Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995). There, we cautioned against the abuse of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, in an "ordinary domestic contretemps . . . [,]" id. at 250, or, as the trial judge expressed it here, "as a club in matrimonial litigation."

Here, plaintiff filed her TRO the day after the incident in New York State. The record is unclear, at best, as to when defendant filed his motion to terminate alimony and as to whether plaintiff knew of that motion when she filed her complaint on August 18, 2008. Nonetheless, the close proximity in time between the triggering events and plaintiff's filing of her TRO casts significant doubt upon the trial judge's finding on this point.

Secondly, the judge found, somewhat anomalously, that because "there have been years of threats and violence between the parties," plaintiff "knew or should have known that . . . [d]efendant's threat to kill her was not to be taking seriously, particularly since . . . [d]efendant was using . . . [p]laintiff's alleged cohabitation as the basis for his pending motion to terminate alimony." The judge had "no doubt that the parties present[ed] with a long history of domestic violence[,]" but found that defendant's conduct on August 14 and 17, 2008, was "modest in comparison to prior acts testified to by the [p]laintiff . . . ."

Finally, the trial judge concluded that plaintiff's relocation to North Carolina "create[d] a sufficient protective buffer[]" of "over 500 miles." The judge failed, however, to take into account plaintiff's testimony, which the judge had found credible, that defendant threatened to "come back" and "kill both" plaintiff and her alleged paramour.

Notwithstanding the deference owed to the factfinding of family judges, Cesare v. Cesare, 154 N.J. 394, 413 (1998), we are constrained to reverse the denial of plaintiff's FRO complaint under these circumstances. Having found that defendant committed the predicate acts of harassment, stalking and terroristic threats, and that the parties had a significant history of domestic violence, the trial judge erred in concluding that plaintiff did not need an FRO to protect her "from immediate danger or further acts of domestic violence." Silver, supra, 387 N.J. Super. at 128.

 
The order of dismissal is reversed; the TRO is reinstated and the matter is remanded for entry of an FRO in conformance with this opinion.

(continued)

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14

A-0905-08T2

RECORD IMPOUNDED

August 21, 2009