ELENA A. JENSEN v. JEREMY BARATTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3805-07T33805-07T3

ELENA A. JENSEN,

Plaintiff-Respondent,

v.

JEREMY BARATTA,

Defendant-Appellant.

____________________________________________________________

 

Argued November 10, 2008 - Decided

Before Judges Carchman and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-1416-08.

Richard J. Marcolus argued the cause for appellant (Levinson Axelrod, P.A., attorneys; Mr. Marcolus, on the brief.

Christine N. Rossi argued the cause for respondent.

PER CURIAM

The matter under review in this appeal turns on a single issue: whether plaintiff and defendant were in a dating relationship for purposes of the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to 35. After a careful review of the record, we answer in the affirmative. We are satisfied that any remaining arguments by defendant are without sufficient merit to warrant a lengthy discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we affirm, substantially for the reasons stated by Judge Francis R. Hodgson, Jr. in his oral decision of February 25, 2008. We add these following comments.

Plaintiff Elena A. Jensen and defendant Jeremy Baratta met at a five-day real estate course that the two attended nearly five years prior to the incident which led to the filing of the civil complaint and temporary restraining order (TRO) herein on January 18, 2008. During the five-day course, the two were allegedly attracted to each other and had several lunches together. Defendant emphasizes that there was no sexual relationship between him and plaintiff, and that most of their contacts were in the presence of other attendees of the course. At the conclusion of the course, they continued their relationship and went to dinner on one occasion. Subsequently, the relationship "fizzled" and for the following six years, the two had no contact of any kind.

In the evening of January 18, 2008, defendant, then a resident of Freehold, was observed by Captain Steven Henry of the Toms River Police Department, sitting in his vehicle which was parked in a suspiciously dark location between homes, within 500 feet, of Elena Jensen's address. Due to a rash of burglaries, Officer Henry approached defendant's vehicle and questioned him as to his activities. Defendant claimed he was on his way to a funeral and that he had only parked on this street temporarily to eat a sandwich. A second officer arrived and alerted Henry that defendant's car had been observed in the same location fifteen minutes earlier and at that time, it had been unoccupied.

Defendant became evasive and argumentative. Henry then observed a gun holster and scanner in the interior of defendant's car and proceeded to conduct a search of the interior. Henry found a notebook on the console of the vehicle with plaintiff's address and "real estate girl" written on a page. Henry called for backup. In the trunk of the vehicle a locked briefcase was retrieved. Once a warrant was issued, it was discovered that the briefcase contained a loaded .45 caliber handgun and $10,000 in cash. Upon subsequent investigation, a tracking canine indicated a "hot scent" from the backyard of plaintiff's home to within five feet of where defendant's vehicle had been parked.

Under the circumstances, the Family Part judge concluded that a dating relationship existed between the parties and that a restraining order under the Act was warranted. In light of the family courts' special jurisdiction and expertise in family matters, the scope of our review is substantially limited as we accord great deference to that court's factfinding. Our Supreme Court has recognized that the Legislature reposes "grave responsibilities on Family Part judges to ensure the safety and well-being of women and children in our society . . . . Cesare v. Cesare, 154 N.J. 394, 413 (1998) (internal quotations omitted). Therefore, an appellate court will 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." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

In general, the Act defines "victim of domestic violence" to mean a person eighteen years of age or older who has been subjected to domestic violence by a spouse, former spouse or any other person who is a present or former household member. N.J.S.A. 2C:25-19d. However, that same section of the Act expressly states that "'victim of domestic violence' also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship." Ibid. In 2003, the Chancery Division addressed circumstances which constitute a "dating relationship." Andrews v. Rutherford, 363 N.J. Super. 252 (Ch. Div. 2003). In Andrews, the Chancery Division enumerated six factors to be considered in determining whether a dating relationship actually existed.

(1) Was there a minimal social interpersonal bonding of the parties over and above a mere casual fraternization?

(2) How long did the alleged dating activities continue prior to the acts of domestic violence alleged?

(3) What were the nature and frequency of the parties' interactions?

(4) What were the parties' ongoing expectations with respect to the relationship, either individually or jointly?
 
(5) Did the parties demonstrate an affirmation of their relationship before others by statement or conduct?

(6) Are there any other reasons unique to the case that support or detract from a finding that a "dating relationship" exists?

[Andrews, supra, 363 N.J. Super. at 259-60; accord M.A. v. E.A., 388 N.J. Super. 612 (App. Div. 2006) (citing to Andrews factors in declining to find a dating relationship).]

While these inquiries, alone, may not be dispositive in any given case, one or more of those factors which are present tend to be relevant to a finding that a dating relationship existed. The legislative findings and declaration included in the Act specify that "[i]t is . . . the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. The Supreme Court has indicated that Family Part judges are to interpret the statute in accord with their grave responsibility "to ensure the safety and well-being of women and children in our society." Cesare, supra, 154 N.J. at 413 (internal quotations omitted).

In the present case, Judge Hodgson found, and gave great weight to, number six of the Andrews factors, that is, other reasons unique to the case that supported a finding that a "dating relationship" existed. The judge explained:

[A] fatal attraction type case comes to mind and almost a predatory behavior of the defendant is very alarming and bizarre. I think that the law does not seek to protect only those who are involved in a sexual relationship and exclud[e] those who are involved in fraternization, but the law does not mean to exclude those who are involved in somewhat of a dating relationship where one person becomes obsessed with the other one.

We are in agreement with this reasoning. The Family Part judge appropriately rejected defendant's contentions that he and plaintiff barely knew each other and that no romantic relationship existed. Rather, the record supports the court's finding that, although brief and chaste, a nascent relationship did exist between the parties which was of sufficient intensity in defendant's mind to compel him to behave in a bizarre and menacing manner nearly six years after its inception.

 
Affirmed.

(continued)

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7

A-3805-07T3

RECORD IMPOUNDED

July 21, 2009