D.S v. M.G

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0010-09T30010-09T3

D.S.,

Plaintiff-Respondent,

v.

M.G.,

Defendant-Appellant.

________________________________

Argued June 7, 2010 - Decided July 16, 2010

Before Judges Yannotti and Chambers.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-ll39-09.

Walter M. Luers argued the cause for appellant.

D.S., respondent pro se, has not filed a brief.

PER CURIAM

Defendant M.G. appeals from the order of July 15, 2009, denying his motion for reconsideration of a final restraining order entered against him on February 18, 2009, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

Plaintiff D.S. had initially filed a domestic violence complaint that was dismissed by a judge who did not find plaintiff to be a credible witness. Plaintiff then filed a second domestic violence complaint against defendant. At the final hearing, conducted by a different judge, she submitted evidence presented in the earlier adjudication as well as evidence of events which had occurred after the earlier adjudication. The second trial judge concluded that defendant had engaged in harassing conduct after the first adjudication and issued a final restraining order against him.

On appeal, defendant contends that admission of the proofs rejected at the earlier hearing was error. Defendant also maintains that the proofs submitted in support of the second domestic violence complaint do not support the final restraining order issued by the second judge. In addition, he challenges the award of attorney's fees to plaintiff.

We agree that the alleged incidents of domestic violence rejected by the first trial judge were inadmissible in the hearing on the second domestic violence complaint. However, admission into the record of this evidence was harmless error because the second trial judge expressly stated that his findings of domestic violence were based solely on defendant's conduct that occurred after the first domestic violence hearing. We conclude that defendant's conduct after the first hearing, as found by the second trial judge, is sufficient to support a finding of domestic violence under the circumstances here. We find no abuse of discretion in the trial court's allowance of attorney's fees. We affirm. I

We will briefly discuss the first domestic violence proceeding between the parties. On December 15, 2008, plaintiff filed a domestic violence complaint against defendant and received an ex parte temporary restraining order. At the hearing for a final restraining order, plaintiff appeared pro se and defendant was represented by counsel. Plaintiff testified that the parties had a dating relationship and had lived together until August 2008, when defendant moved out. She testified that during the time period from May to August 2008, defendant had started to throw things, he broke chairs in her kitchen, he threw a beer bottle at her, and he elbowed and pushed her. After he moved out in August, he would call her at work and at her home about $700 that she owed him on a PSE&G bill as well as money she owed him for a storage unit rental. He also was attempting to continue their dating relationship. She testified that sometimes the calls were cordial and other times they were not. On occasion, he followed her. She claimed that defendant said that if he saw her with another man, he would kill them both.

The first trial judge did not find plaintiff's testimony credible. The judge noted that plaintiff owed defendant $700 and found that the calls defendant made to plaintiff were not done with the purpose to harass her, but rather were made in an attempt to collect the money. The judge further noted that plaintiff called defendant as frequently as he called her and that, after defendant had moved out, they had Thanksgiving dinner together. The judge described the situation as "a break up that neither party has let go." The judge did not find credible plaintiff's claims that defendant was following her around or that she was worried that he would harm her if she were seen with someone else. He concluded that the restraining order was being sought in order to stop defendant's collection efforts. As a result, by order dated January 5, 2009, plaintiff's domestic violence complaint was dismissed.

When setting forth this decision on the record on January 5, 2009, however, the trial judge made clear to defendant that plaintiff did not want any further contact from him and that if he did so, the outcome of the next case might be very different. Specifically, the judge stated:

Today I think you can take it as she has made it very clear she does not want defendant calling her. If he has a claim for this money, he can pursue that. As she said I think during her testimony, there is a way to do that in a civil suit. But if these calls continue I think she has made it very clear today that she does not want the calls to continue. I do not think she did that beforehand.

Later in the decision, the judge said:

It is very clear now though that plaintiff is on record as she does not want defendant to call her. So, if defendant calls her now and says, I want to get that money, or I want you to call, or I want you to come over to my house, she needs to document when that occurred, what was said. And then she has I think a better case than what she has today.

A little more than three weeks later, on January 29, 2009, defendant sent a pornographic video clip to plaintiff's cell phone. She replied by text, requesting that he not contact her again. He immediately replied by text, stating "yes, boss" and then within half an hour he further replied "call me when you grow up." The next day he sent her a text message with an intimate picture of her attached stating "get rid of mine and I'll get rid of yours." She understood this to refer to the intimate photographs of each other they had exchanged when dating. The next day, plaintiff filed a domestic violence complaint and received a temporary restraining order against defendant.

At the hearing on this second domestic violence complaint, the above facts were not disputed. However, defendant testified that between January and February he had received about twenty telephone calls where the caller's identification was blocked, and, on one call, he heard a bird in the background. Plaintiff admitted that she had a phone which blocked her identification and that she had a bird that squawks. Defendant testified that on January 28, 2009, the day preceding the sending of the pornographic video, plaintiff contacted him and demanded back rent. He denied that he owed her back rent and hung up on her. Plaintiff denied making these calls and claimed that defendant was "lying."

The trial court concluded that the pornographic video text was offensively coarse and that defendant had every reason to believe that plaintiff would find it so. It determined that the three messages sent after defendant received plaintiff's text message requesting that he not contact her together with the pornographic video constituted harassment under N.J.S.A. 2C:33-4(a) and (c) and entered a final restraining order. Defendant thereafter moved for reconsideration. That motion was denied. Although plaintiff had appeared pro se at the domestic violence hearing, she was represented by counsel on the motion for reconsideration. As a result, she sought attorney's fees on the motion for reconsideration which the trial court granted in the sum of $825.

II

On appeal, defendant contends that the trial court should not have allowed plaintiff to testify to the acts of domestic violence that the earlier judge had rejected; that the facts do not support the trial court's finding of domestic violence; and that an award of attorney's fees was unwarranted.

Certainly, under principles of issue preclusion, plaintiff's allegations of domestic violence rejected by the first trial judge should not have been admitted into evidence in the hearing on her second domestic violence complaint. See J.F. v. B.K., 308 N.J. Super. 387, 392 (App. Div. 1998) (stating that a plaintiff may not relitigate allegations adjudicated adversely to her in a hearing on a prior domestic violence complaint). However, a careful review of the record indicates that the overlap between the two hearings is limited. At the second hearing, plaintiff testified that in December she had asked defendant to cease communicating with her and that things were getting "uglier" then. She testified that in the past defendant would "break up or he would take off, and then . . . harass [her] until . . . [she] took him back." If she did not answer his calls, he would come to her house and "would not take no for an answer." Upon inquiry by the court, she stated that defendant had pushed or hit her a couple of times in the past. These incidents were generally touched upon at the hearing on the first complaint, as noted above.

However, the trial court clearly indicated in its decision that its finding of domestic violence was based solely on defendant's conduct after the first hearing, stating that "this case, I think, stands on its own" and recounted defendant's communications with plaintiff after the first hearing and concluded that this conduct constituted harassment. Further, when denying the motion for reconsideration, the trial court expressly stated:

[M]y decision is not based [on] the history - the distant history, but rather what happened between January 5th, 2009 and January 29, 2009. . . . On January 5th, the folks were in court. There was a possible connection. There was no reason for the gentleman to think that this lady would welcome any kind of sexually explicit or even pornographic material.

As a result, admission of the prior incidents was harmless.

We next consider whether the facts support the trial court's finding of domestic violence and its issuance of a final restraining order. In this analysis, we recognize that we may not disturb a trial court's factual findings unless 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, the conduct of defendant is not disputed. Indeed, the only factual differences between the parties, a matter left unresolved by the trial court, was whether plaintiff had called defendant after the first domestic violence hearing.

A trial court considering a domestic violence complaint must first, "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:25-19(a) has occurred." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Here, the trial court found that the predicate act of harassment under N.J.S.A. 2C:33-4(a) and (c) had occurred. Under N.J.S.A. 2C:33-4(a), an act of harassment occurs when a person "[m]akes, 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." Under N.J.S.A. 2C:33-4(c), an act of harassment occurs when a person "[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person."

Once the court has determined that a defendant has committed a predicate act, it then must decide whether to issue a restraining order to protect the victim. Silver v. Silver, supra, 387 N.J. Super. at 126. The commission of a predicate act does not automatically require that a restraining order be issued. Id. at 126-27. Rather, the court will only issue a restraining order if it is "necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.

After careful consideration of the record, argument of counsel and the relevant law, we conclude that the record supports a finding of harassment and that issuance of a final restraining order was justified. The pornographic video was crude and offensive, and nothing in the record suggests that defendant thought the communication was welcomed. Defendant then continued to have three other communications with plaintiff after sending the video and after she expressly told him not to contact her again. All of this was done after she had filed a previous domestic violence complaint against him, complaining about his unwanted contact, among other things. Most significantly, while the trial court in the earlier matter did not find harassment, it expressly advised defendant, as noted above, that he was on notice that plaintiff wanted no further contacts from him. Thus, in this context, defendant's conduct was harassing and an order appears necessary at this time to restrain his conduct.

The defendant also seeks a reversal of the award of attorney's fees to plaintiff for her legal costs in opposing the motion for reconsideration. The Prevention of Domestic Violence Act allows the court to award reasonable attorney's fees to a prevailing plaintiff. N.J.S.A. 2C:25-29(b)(4). The award is not subject to the traditional analysis under N.J.S.A. 2A:34-23, because the attorney's fees are viewed as compensatory damages. McGowan v. O'Rourke, 391 N.J. Super. 502, 507-08 (App. Div. 2007). The decision to award reasonable attorney's fees falls within the discretion of the court. Id. at 508. Given our deferential standard of review, we find no abuse of discretion in the trial court's allowance of attorney's fees to plaintiff.

Affirmed.

 

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