D.Q v. R.Q

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4352-08T2

D.Q.,

Plaintiff-Respondent,

v.

R.Q.,

Defendant-Appellant.

_____________________________________

Submitted February 23, 2010 - Remanded May 6, 2010

Resubmitted July 12, 2010 - Decided September 13, 2010

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1655-09.

Goldstein and Bachman, attorneys for appellant (Mark Goldstein, of counsel and on the brief; Edward A. Wojciechowski, on the brief).

Ramatowski, Spilka & Schwartz, attorneys for respondent (Ellen F. Schwartz, 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 after trial on April 8, 2009. We previously issued a decision remanding the matter to the trial judge for clarification or reconsideration of his conclusion that defendant had committed a violation of N.J.S.A. 2C:33-4, harassment, as a predicate act of domestic violence. D.Q. v. R.Q., Docket No. A-4352-08T2 (App. Div. May 6, 2010). For purposes of this opinion, we adopt the statement of facts and procedural history contained in our prior decision.

On remand, the trial judge issued a written "Clarification of Decision" dated June 18, 2010. He explained and confirmed his conclusion that defendant had harassed plaintiff by a course of alarming conduct on February 16, 2009. The judge found that defendant's violation of N.J.S.A. 2C:33-4c, viewed in the light of prior acts of harassment and escalating conflicts with plaintiff over issues following their divorce, entitled plaintiff to a final restraining order. Defendant challenges the trial judge's conclusions after remand and again requests that we reverse the final restraining order. Plaintiff has not submitted a supplementary brief but relies on the arguments she made in her brief on the original appeal.

As we stated in our prior decision:

In a domestic violence case, the standard of review on appeal is very deferential 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.

[D.Q. v. R.Q., supra, slip op. at 10-11 (quoting Cesare, supra, 154 N.J. at 412) (internal quotation marks omitted).]

Application of that standard of review requires that we defer to the trial judge's findings of fact and conclusions and affirm the final restraining order.

The trial judge reviewed "the culmination" of events on February 16, 2009, beginning with defendant calling 911 to report domestic violence in plaintiff's home, which the judge found was retaliation for her refusal to speak to him on the telephone about their daughter rather than because of legitimate concern that the daughter may be in need of aid. The judge found that defendant's alarming conduct then continued with his standing outside plaintiff's property and defying the instructions of the police to leave the area, and it concluded with defendant's repeated phone calls to plaintiff's home after he finally left the area. When plaintiff refused to speak with him, and their son would not put the daughter on the phone, defendant left increasingly angry messages using profanity and other offensive language. The judge concluded that the conduct of defendant demonstrated a purpose to harass plaintiff and in fact did so.

According to the trial judge's view of the evidence, defendant did not have a legitimate purpose for making the 911 call, staying outside plaintiff's home after the police told him that his daughter was fine, and making repeated phone calls so soon after leaving the area. To place defendant's actions in context, the judge also found that defendant had engaged in acts of harassment in the recent past, such as throwing things in plaintiff's house and refusing to heed her request that he leave. Those acts elevated the nature and seriousness of his actions on February 16, 2009, beyond the innocent concerns of a father for the welfare of his teenage daughter.

Although we view this as a close case on the ultimate issue of harassment, the trial judge was in a better position than we are to assess the credibility of the parties. He observed the parties first-hand and had the advantage of evaluating their demeanor and motivations. He had the opportunity to gain a "feel" of the case, which an appellate record may not accurately duplicate. See State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We are bound to defer to the trial judge's findings and conclusions when, as here, they are supported by the record.

Affirmed.