L.B. v. M.P.

RECORD IMPOUNDED
                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-0849-08T1


L.B.,

     Plaintiff-Respondent,

v.

M.P.,

     Defendant-Appellant.
_____________________________________

         Submitted November 4, 2009 - Decided January 5, 2010

         Before Judges Lihotz and Ashrafi.

         On appeal from Superior Court of New Jersey,
         Chancery Division, Family Part, Essex
         County, Docket No. FV-07-626-09.

         Dell'Italia, Affinito & Santola, attorneys
         for appellant (John P. Dell'Italia, on the
         brief).

         Law Offices of Michael A. DeMiro, Jr.,
         attorneys for respondent (Michael A. DeMiro,
         Jr., on the brief).

PER CURIAM

     Defendant appeals from a final restraining order under the

Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35,

entered on August 27, 2008, after trial.   He contends that his

Sixth Amendment rights were violated because he did not

voluntarily waive his right to counsel and that plaintiff's

evidence failed to establish a predicate act of domestic

violence.    We affirm.

    Plaintiff and defendant had a dating relationship for about

fifteen months.     According to plaintiff's testimony at trial,

she ended the relationship on June 30, 2008.     During the next

several days, they spoke on the phone, and plaintiff allowed

defendant to come to her condominium to talk in an effort to

part peacefully.    On July 5, 2008, however, plaintiff told

defendant she did not want any further contact with him.       Later

that day, he repeatedly tried to talk to her in person or over

the telephone.     She resisted and finally told him that she felt

scared by his pursuit and she would call the police if he did

not stop.    The next day, she changed the locks on her

condominium.

    A few days later, defendant called the dental office where

plaintiff worked, but she did not want to speak with him.        When

he called a second time, she spoke to him, declined his

invitation to lunch, and told him she did not want to speak with

him again.     His contacts persisted by phone and in person

outside her home.    She again told him that he was scaring her

and she had no choice but to call the police if he continued.

    Over the next several days, she spoke about the incidents

to her parents, who lived outside New Jersey, and to other




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family members.    On July 15, her father came to New Jersey and

accompanied her to the police station, where she filed a

domestic violence complaint and obtained a temporary restraining

order.

       Plaintiff and defendant appeared in the Superior Court on

July 24, 2008, for a hearing on her complaint.     Plaintiff did

not have a lawyer but had discussed the matter with a family

lawyer and was accompanied to court by her father.     Attorney

Anthony Alfano represented defendant for the hearing.        Alfano

spoke to plaintiff and her father and also spoke on the phone to

their family attorney.    On behalf of his client, Alfano promised

that defendant would have no further contact of any kind with

her.     Plaintiff agreed to drop her complaint with that

understanding.

       The parties appeared before a Family Part judge to dismiss

the complaint and to vacate the temporary restraining order.

Alfano assured the judge and plaintiff that defendant understood

that if he "shows his face anywhere, 'anywhere,' anyplace within

the vicinity of [plaintiff], she will not hesitate, obviously,

to file a new restraining order . . . ."     He also said:

            I'm also putting on the record that he has
            no reason to be anywhere near her. He
            doesn't have a place of employment or
            anything which is within close proximity to
            where she lives or where she works. So
            there's no reason for her -- for my client to


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          have any contact or to be anywhere near her.

Relying on these representations, plaintiff voluntarily

dismissed her domestic violence complaint and the temporary

restraining order.   In accepting the dismissal, the judge

explained to plaintiff that in the future she would not be able

to re-instate the same complaint if defendant failed to abide by

his promises.   He also said that the prior acts would be

considered in determining whether she is entitled to a

restraining order if any new acts of domestic violence were to

occur.   Plaintiff said she understood.   When the judge asked

defendant whether he had any questions, he answered no.

    Fifteen days after dismissal of the first complaint, on

August 8, 2008, defendant contacted plaintiff.    He called and

left a message on her home phone that a package had arrived for

her at his residence and he wanted instructions about what he

should do with it.    She did not respond to the message.    She

testified at trial that she had never lived at his residence or

used his address.    She was not expecting anything at his

address, and, if a package had in fact arrived for her at

defendant's address, she did not care what he did with it.

    On August 19, defendant called her dental office and spoke

to the receptionist, who testified at trial.     He said he was

driving by the office and noticed that plaintiff's car was not




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                                 4

in the parking lot.    He wanted to know if she was ill or

otherwise had a misfortune.    The receptionist confirmed that

plaintiff was all right.   Defendant then asked the receptionist

for her personal cell phone number so that he could call again

at a different number to discuss plaintiff further.       The

receptionist refused to give him another number.

       The next day, August 20, defendant left a message on

plaintiff's cell phone.    He said he wanted to give her the

package that had arrived and some additional things.      He also

spoke about not seeing her car at the office.    The following

day, plaintiff went to the police and filed another domestic

violence complaint alleging harassment.    She obtained a new

temporary restraining order.

       At trial, defendant did not deny the contacts on August 8,

19, and 20, but testified that a gift package had arrived for

plaintiff at his residence and he was only trying to get it to

her.    He testified that his driving by her office was

inadvertent; he had gone to the area for another purpose and

happened to see that her car was not at her office and became

worried about her well-being.

       The trial judge concluded that the facts established

harassment and granted plaintiff a final restraining order.




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                                 5

    On appeal, defendant argues first that his Sixth Amendment

rights were violated when the trial judge refused to grant his

request for adjournment of the trial so that his attorney could

attend.   The simple answer to this contention is that assistance

of counsel guaranteed by the Sixth Amendment for criminal

matters does not apply to a civil matter.   See Lassiter v. Dep't

of Social Servs., 
452 U.S. 18, 25, 
101 S. Ct. 2153, 2158, 
68 L. Ed. 2d 640, 648 (1981) (right to appointed counsel "has been

recognized to exist only where the litigant may lose his

physical liberty if he loses the litigation"); Pasqua v.

Council, 
186 N.J. 127, 143 (2006) (right to counsel exists in

civil child support matter if defendant may be incarcerated for

non-payment).    A domestic violence complaint under N.J.S.A.

2C:25-28 and -29 is a civil matter that does not entail

incarceration.   Only if a defendant violates a restraining order

is he subject to incarceration for contempt under N.J.S.A.

2C:25-30 and 2C:29-9 and, at that time, is entitled to counsel.

See State v. Ashford, 
374 N.J. Super. 332, 337 (App. Div. 2004).

    Nevertheless, a civil litigant has rights to a fair hearing

protected by the due process clause of the Fourteenth Amendment.

See A.B. v. Y.Z., 
184 N.J. 599, 604 (2004); H.E.S. v. J.C.S.,


175 N.J. 309, 321 (2003).    Defendant's argument would more aptly

be stated as a due process challenge to the trial court's denial




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                                 6

of adjournment because his attorney could not attend the

hearing.

    A trial court has discretion to grant or deny adjournments.

State v. D'Orsi, 
113 N.J. Super. 527, 532 (App. Div. 1970),

certif. denied, 
58 N.J. 335 (1971).     We reverse for failure to

grant an adjournment only if the court has abused its discretion

"causing defendant a 'manifest wrong or injury'."     State v.

McLaughlin, 
310 N.J. Super. 242, 259 (App. Div.) (quoting State

v. Furguson, 
198 N.J. Super. 395, 402 (App. Div.), certif.

denied, 
101 N.J. 266 (1985)), certif. denied, 
156 N.J. 381

(1989).

    On the trial date, August 27, 2008, plaintiff appeared for

trial with an attorney.   At about noon, the judge called the

case to inquire whether counsel wished to return at 1:30 for

trial or adjourn to another date.     Plaintiff's attorney said he

was ready for trial, he and his client had been waiting, and

they wished to return at 1:30.   Defendant had noted his presence

but did not request an adjournment or say anything else.

    At 1:30, before another judge, defendant asked for an

adjournment because his attorney was occupied elsewhere and

could not be present for the trial.    Counsel for plaintiff

objected to an adjournment and informed the judge that defendant

had not asked for an adjournment earlier when he had the




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opportunity.    He said that delay would unfairly cost his client

the expense of his attendance that day, which he said would be

$1,600.    Before denying defendant's request for an adjournment,

the judge asked him whether he was willing to pay plaintiff's

expenses in the amount of $2,000.    Defendant responded that he

would go ahead with the trial without his attorney.

       Although the trial judge did not explain the difference

between plaintiff's expenses and the amount of reimbursement

that he demanded from defendant in exchange for adjournment, we

discern no abuse of discretion or violation of due process in

denial of defendant's belated adjournment request.    Defendant

gave no indication that he was willing to reimburse plaintiff

any amount for causing her wasted attorney expenses on that day.

Also, defendant knew that he could have an attorney to represent

him.    He had appeared for the July 24, 2008 hearing with an

attorney to answer the first complaint.    The court received no

request before the hearing date for an adjournment to

accommodate his attorney's schedule.    At the initial call for

trial, defendant did not tell the court that his attorney was

occupied and could not be ready for trial at 1:30.    Denial of an

adjournment under these circumstances was not an abuse of the

trial court's discretion and did not violate defendant's due

process rights.




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                                 8

    Defendant contends next that plaintiff did not prove a

predicate act of domestic violence to permit entry of a final

restraining order.

    On appeal of a domestic violence case, we grant substantial

deference to the trial court's findings of fact and the

conclusions of law based on those findings.     In Cesare v.

Cesare, 
154 N.J. 394, 413, 416 (1998), the Supreme Court placed

trust in the "expertise" of Family Part judges to assess

evidence of domestic violence and the need for a restraining

order.   Regarding the function of the appellate court, the

Supreme Court held:

          [A]n appellate court should 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 412 (quoting Rova Farms Resort, Inc.
          v. Investors Ins. Co., 
65 N.J. 474, 484
          (1974)).]

    Here, the trial court concluded that defendant's attempts

to contact plaintiff in August were harassment, in violation of

N.J.S.A. 2C:33-4.     The court placed particular weight on the

fact that defendant had been warned through his own attorney's

words at the July 24 hearing, and he had agreed not to have any

contact with plaintiff whatsoever.




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    The harassment statute, N.J.S.A. 2C:33-4, states in

relevant part:

           [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;

           ....

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

    Defendant argues that his three attempts to contact

plaintiff in August cannot be deemed a violation of this

statute.   He contends that dismissal of the first complaint was

not conditional and his July conduct could not be the basis for

finding a predicate act of domestic violence.

    In accordance with T.M. v. J.C., 
348 N.J. Super. 101 (App.

Div.), certif. denied, 
175 N.J. 78 (2002), the July 24 dismissal

of the first complaint was unconditional.   Defendant is

mistaken, however, in arguing that the judge at the August 27

trial could not take the July events into consideration in

determining whether harassment had occurred in August.     The

domestic violence statute and the cases applying it require that

the history of past acts of domestic violence, including


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harassment, be considered in determining whether a final

restraining order should be entered.   N.J.S.A. 2C:25-29a(1);

Cesare, supra, 
154 N.J. at 401-02; Corrente v. Corrente, 
281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 
280 N.J. Super. 47, 54 (App. Div. 1995).   Our holding in T.M.,

supra, 
348 N.J. Super. at 106, is not to the contrary.   The

trial court correctly heard testimony about the events of July

2008 and took that history into account in determining to grant

a final restraining order.

    In its decision, the court said:

              Under Subsection A of the statute, the
         Court finds that the defendant engaged in a
         course of conduct that was likely under the
         circumstances of this case, likely to cause
         annoyance and alarm; that he did so
         repeatedly; and that this conduct continued
         after a complaint had been filed in the
         Prevention of Domestic Violence Act and
         withdrawn by the victim.

              The Court reviews the history of this
         matter as a prior act or acts referencing
         conduct likely to cause annoyance or alarm.
         The Court notes that the plaintiff has
         testified that on repeated occasions, to
         wit, June 30th, July 5, July 6, July 8, July
         10, July 11, July 12, July 15, and
         continuing upon the withdrawal of the
         complaint and on July 24, continued
         communications on August 8, August 19,
         August 20, all of which the defendant was
         advised that the victim did not wish to have
         continuing communication. The pattern of
         behavior persisted, notwithstanding the
         requests of the plaintiff. They clearly




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          constitute a pattern of activity calculated
          to cause annoyance and/or alarm.

               Accordingly, the Court has made its
          finding that harassment has been
          established.

Although the court referred to subsection (a) of the harassment

statute, the court's findings used language more consistent with

subsection (c), a "course of conduct," "repeatedly," and

"pattern of behavior."

    In State v. Hoffman, 
149 N.J. 564, 575-84 (1997), the

Supreme Court discussed the differences between subsections (a)

and (c) of the harassment statute.   The Court said that "[i]n

contrast to subsection (a), which targets a single

communication, subsection (c) targets a course of conduct."       Id.

at 580.   Defendant's three attempts to contact plaintiff in

August could be viewed as a "course of alarming conduct or of

repeatedly committed acts with purpose to alarm or seriously

annoy" her within the terms of N.J.S.A. 2C:33-4c.    We need not

decide whether the three attempts in August would have been

sufficient evidence of harassment if there had been no prior

history of similar conduct.   There was a prior history of

conduct in July that put the August events into the context of

the relationship of these two particular people.

    In addition, defendant's unequivocal assurances in court on

July 24 that he had "no reason . . . to have any contact or to


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be anywhere near her," although not enforceable in the same way

as a restraining order, established a heightened standard of

conduct for him in relation to plaintiff that was not a factor

in the first instances of discord after the break-up.   By making

those promises, he made a record of his understanding that

plaintiff wanted no contact whatsoever with him under any

circumstances.   The possibility of misunderstanding about the

changed boundaries of the relationship was eliminated by the

promises defendant made in open court.    Considering the history

of the break-up, namely, defendant's persistence and refusal to

accept plaintiff's repeated declinations and resistance to his

efforts during July, the trial judge could reasonably infer from

the evidence that, during August, defendant was again engaged in

a pattern of alarming conduct or repeated acts likely to alarm

or seriously annoy plaintiff.

    Relying on Corrente, supra, 
281 N.J. Super. at 249,

defendant also argues that the record contains no evidence of a

purpose to harass on his part, that his purpose was only to

forward a package to plaintiff.    The trial court could discount

defendant's explanations for calling plaintiff and driving past

her place of employment in light of his attorney's

representations at the July 24 hearing that he had no reason to

be anywhere near her or to contact her and that he understood




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                                  13

that "show[ing] his face anywhere . . . within the vicinity of"

plaintiff would result in her filing another domestic violence

complaint.

    Because a defendant is unlikely to admit he had a purpose

to harass, that element of a harassment offense is seldom shown

through direct evidence.   It is usually proven circumstantially.

See Hoffman, supra, 
149 N.J. at 577 ("A finding of purpose to

harass may be inferred from the evidence presented.").   Here, a

clear understanding of restrictions on his conduct, voluntarily

undertaken in exchange for the prior dismissal, provided a

significant circumstance tending to prove that defendant's

continued efforts to contact plaintiff were done knowing that

she would be alarmed and frightened.   When a person continues

communications, without a legitimate purpose and with knowledge

that the communications will have an alarming or annoying effect

on the recipient, the person can be said to act with a purpose

to harass.

    We conclude that the evidence permitted a reasonable

inference that the August communications constituted harassment

under the statute.   The trial court did not abuse its discretion

in granting a final restraining order against defendant.

    Affirmed.




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