LETITIA WHITE-WASHINGTON v. RICHARD HARTOBEY

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3550-07T33550-07T3

LETITIA WHITE-WASHINGTON,

Plaintiff-Respondent,

v.

RICHARD HARTOBEY,

Defendant-Appellant.

_________________________________

 

Argued May 6, 2009 - Decided

Before Judges Rodr guez and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-001524-08.

Beverly A. Plutnick argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant Richard Hartobey appeals from a final domestic violence restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We reverse.

I

We glean the following facts from the record. The parties had a brief dating relationship of approximately nine to ten months. The relationship was rocky, in that they broke up and got back together on a number of occasions. Plaintiff Letitia White-Washington testified that, after their most recent breakup on October 31, 2007, Hartobey called her "numerous" times, despite her having told him that she did not wish to speak to him again. After he telephoned her at 2:30 a.m. on November 29, 2007, she applied for and received a temporary restraining order later that day.

At the trial, on December 7, 2007, White-Washington testified that she had been receiving "numerous" telephone calls from Hartobey, the nature of which was that he "basically told [her] that he missed [her] and he loved [her] and he just wanted to talk." She testified that she made it clear to Hartobey that she did not want to talk to him. Although she testified that Hartobey left messages that "frightened" her, she did not elaborate. She never described any threats. When he called her at 2:30 a.m. on November 29, she told him she would contact the police and he said that he did not "care" and she should "do what [she] [had] to do."

Hartobey testified at the trial that, after White-Washington told him that she was with someone else, he stopped calling her. He also testified that it was the nature of their relationship that they had broken up around twenty times during the ten-month relationship. It was normal for him to call her to try to get back with her. In addition, he testified that he called her mother trying to have his watch returned to him.

The trial judge entered an FRO against Hartobey. He found that Hartobey's testimony was not credible and that White-Washington's testimony was credible. He also found that Hartobey continued to "care deeply" for White-Washington. In conclusion, the trial judge was "satisf[ied] that the complaint has been established by a preponderance of the evidence that [Hartobey] did engage in a course of conduct that was related to annoying and harassing the victim despite her attempts to refuse."

This appeal followed.

II

Our scope of review of the trial judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1988); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). We are generally bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. This is especially so when questions of credibility are involved. Id. at 412. In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

The trial judge's legal decisions, however, are subject to our plenary review. Crespo, supra, 395 N.J. Super. at 194; Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

Before entering an FRO, a trial court must find, by a preponderance of the evidence, that a defendant engaged in conduct that would fit the definition of one or more criminal statutes, including harassment as defined in N.J.S.A. 2C:33-4. N.J.S.A. 2C:25-19; Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006).

The relevant portion of the harassment statute reads as follows:

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

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

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

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

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

Proof of the requisite "purpose to harass" is a necessary element of the cause of action. Peterson v. Peterson, 374 N.J. Super. 116, 123 (App. Div. 2005).

III

Despite the deference owed to the trial court, we have concluded that the record does not support the entry of the FRO in this case. There was only one early morning call. It is clear from the record, and was found by the trial judge, that, at least at the time the last telephone call was made, Hartobey "care[d] deeply" for White-Washington and that the purpose of the calls was, in White-Washington's words, "basically" to tell her "that he missed [her] and he loved [her] and he just wanted to talk." There was no proof of any threatening language and, in our view, no factual basis for a finding of the requisite "purpose to harass." There was no history in this case of multiple calls at inconvenient times, unwanted touchings, threats, or derogatory comments.

Consequently, we reverse the judgment of the Family Part and vacate the FRO entered. Our decision should not be taken as license by Hartobey to resume his prior course of conduct. It should now be abundantly clear to him that White-Washington does not want any further contact with him and that the consequences of his failure to adhere to her wishes are potentially serious.

Reversed.

(continued)

(continued)

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A-3550-07T3

RECORD IMPOUNDED

June 3, 2009