B.A.S v. D.C.Y. Jr

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0939-10T3

B.A.S.,

Plaintiff-Respondent,

v.

D.C.Y., Jr.

Defendant-Appellant.

___________________________

Argued May 9, 2011 Decided August 16, 2011

Before Judges Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County,Docket No.FV 03-000513-11.

Frank M. Crivelli argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; Mr. Crivelli, on the brief).

B.A.S., respondent, argued the cause pro se.

PER CURIAM

Defendant appeals from the September 22, 2010 domestic violence final restraining order (FRO) issued against him in favor of plaintiff, his former girlfriend. We affirm.

We summarize the pertinent evidence from the record of the FRO hearing. Plaintiff testified that the parties lived together from November 2007 to January 2008, and again from May to December 2008. Both parties are corrections officers. On August 20, 2010, plaintiff was in a restaurant at a retirement party for a supervisor. While she was involved in a conversation with other officers, defendant came "over enraged and in a threatening manner start[ed] calling [her] all kinds of vulgar names. . . . [I]t was regarding a vehicle that [she] had purchased . . . in May." Plaintiff stated that defendant "had nothing to do with the vehicle, . . . but he was enraged at the fact that [she] was speaking of [it]." This took place in the presence of plaintiff's co-workers.

Plaintiff testified that she was "embarrassed, . . . humiliated, he belittled [her] in front of the entire restaurant . . . stat[ing] facts . . . regarding [her] body in a personal manner . . . ." She left the restaurant and defendant followed her, "still making comments . . ., cursing at [her]." She returned to the party a few minutes later and defendant "got back in [her] face, made even more comments . . . regarding [their] relationship." Defendant was then "escorted out" by other officers who "saw how enraged he was . . . ."

Plaintiff believed defendant had had "a few drinks" on that occasion, adding that "through this whole relationship he appeared to have a drinking problem[], anger problems . . . ." Since that incident it has been "very hard on [her] at work. . . . [T]he inmates that [she] deal[s] with now know [her] personal business because [defendant] embarrassed [her] in front of officers . . . ."

An incident occurred earlier in August when, as plaintiff was changing shifts at work, defendant called her "upset and he made statements . . . that were really offensive . . . saying that [her] existence makes him miserable and he hopes that [she crash[es her] car and die[s]." Throughout the summer he "constantly" drove past her house.

Plaintiff described numerous prior incidents, including the following. In July 2009, defendant came to her house "late in the evening"; he had been drinking and began pushing her around. A neighbor who is a police officer intervened. Later that month, defendant again came to plaintiff's house at about 1:30 a.m.; plaintiff's son let him in the house. Defendant went to plaintiff's bedroom, pulled her out of bed and "started throwing [her] around."

On February 22, 2010, defendant came to plaintiff's home to pick up his belongings. He grabbed her by the arms and started shaking her. She ran upstairs to call the police; he followed her, grabbed the phone and "threw [her] into the wall" and then picked her up, threw her on the bed and punched her in the leg. She tried to escape and defendant told her "he was going to kill [her] and that [she] would be dead by that Saturday." He then punched a hole in her bedroom wall.

On May 21, 2010, as she was driving home from work, defendant "purposefully ran [her] off the road continuously" until she was finally able to avoid him. He came to her home; her eleven-year-old daughter was getting ready for school. Defendant told plaintiff "that he was going to kick [her] car in that day . . . ." Plaintiff's daughter heard this and became upset.

Plaintiff stated that she chose not to report these earlier incidents because she loved defendant and "knew he was going through things in his life and [she] chalked it up as that and . . . put [her]self aside for [his] well-being . . . ." She "still ha[s] feelings for" defendant and "tried to reconcile with him." She "just thought he was going through things, that maybe he needed a little time alone." Looking back now, however, plaintiff "realized" that "emotionally, mentally and physically . . . it just put a lot of stress on [her] work life, . . . family life, [her]self."

On cross-examination, plaintiff acknowledged that during the year that the parties have lived apart, they have been in contact by phone and by texting both in and out of work. Defendant would call her "[b]ut then it would end in name calling."

Plaintiff's seventeen-year-old son testified. He confirmed the incidents when defendant came to plaintiff's home late at night. He stated that the parties "both yelled at each other frequently." He testified that throughout plaintiff's relationship with defendant he "noticed [his] mom becoming worse and worse, getting into a stage of depression . . . . She just seemed like she was . . . in a state that [he] had never seen . . . before and it . . . scared [him] . . . ."

Sherry Lenski testified on behalf of plaintiff. She witnessed defendant's verbal assault on her at the retirement party on August 20. Plaintiff had just told Lenski she bought a new car and defendant "butted into the conversation . . . and then it just proceeded to be a big argument." She heard defendant call plaintiff several vulgar names, yelling at her "in front of everybody . . . ." She described plaintiff as "pretty much in shock" at the time.

Before defendant began his testimony, he told the judge he had "evidence" in the form of "e[]mails, texts . . . going . . . back to September 2010." Defendant stated that he and plaintiff still care for each other and have their "ups and downs" in their relationship.

Defendant acknowledged "get[ting] into a verbal disagreement" with plaintiff at the retirement party. Plaintiff started showing other people pictures of her new car while looking at defendant, which he interpreted as her implying that she could afford to buy a car and "some people," meaning defendant, could not. "Some vulgar words were exchanged" between them, and plaintiff said she would "get [her] man after [him]." Defendant denied threatening plaintiff "in any way." Then he "said [his] good-byes and . . . left . . . on [his] own."

Defendant testified that during August plaintiff would call him and say angry, vulgar things to him. He produced a letter she had sent telling him where his belongings were in storage and saying not to contact her ever again.

Defendant also produced emails from plaintiff in which she apologized for yelling at him on one occasion in July 2010 and told him that she loved him. Defendant agreed with the judge's characterization of that email as "an attempt at reconciliation in July[.]" Defendant then read through a number of earlier emails. At one point the judge stopped him and asked to go "back to what's really relevant." He asked if defendant ever pushed plaintiff around; defendant responded that plaintiff pushed him around.

The judge noted that plaintiff had given "a list of physically abusive situations[,]" which he considered "really the key to the case." Defendant responded that the retirement party "did happen[,]" but that "[a]ll the other allegations are false . . . ."

Defendant asserted that the emails showed plaintiff wanted to be with him and he did not want to be with her. Therefore, he believed, she filed her TRO in "retaliation" against him. The judge reviewed plaintiff's allegations of prior acts of domestic violence; defendant denied each of them. Defendant stated that he "ha[d] more stuff[,]" to introduce into evidence, to which the judge responded that if it related to reconciliation efforts "it's not really a contested fact."

In plaintiff's summation, she told the judge that she is "scared" of defendant who has "physically, emotionally and mentally abused [her]." In his summation, defendant denied ever assaulting or physically harming plaintiff. Defendant stated that he does not live near plaintiff or drive by her home; he does not text, email or call her, adding that they were "done." The judge rendered a decision from the bench, noting at the outset that "it's a credibility issue." He found plaintiff's description of what occurred at the August 20 retirement party "more accurate" than defendant's. The judge "believe[d] that [defendant was] extremely verbally abusive to [plaintiff] and . . . that's a much more serious incident in reality than what [defendant] would acknowledge." He concluded that "the comments made at the party were a communication done with the purpose to harass in a manner likely to cause annoyance or alarm."

The judge also found that plaintiff established a prior history of domestic violence. The judge noted that defendant had engaged in "a pattern of behavior" constituting harassment, including "pushing [plaintiff] around . . . ."

On appeal, defendant contends that the trial judge improperly entered an FRO because plaintiff failed to sustain her burden of proof that an act of domestic violence occurred and the record did not support the finding that she continued to need protection; he also contends he was not afforded an adequate opportunity to present his case and the judge ignored "the plethora of documentary evidence he had in his possession." Having reviewed these contentions in light of the record, we discern no basis to reverse the FRO.

Our standard of review is deferential in consideration of the particular expertise of Family Part judges in these matters. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Where, as here, credibility determinations are critical to the judge's findings, we will not substitute our judgment unless we are convinced the record does not support those determinations. Ibid. With that limited scope of review in mind, we briefly consider defendant's contentions. Pursuant to N.J.S.A. 2C:33-4(a),

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

Here, the judge found that defendant violated this provision by his conduct at the retirement party on August 20, 2010. We concur.

In explaining the standard applicable to subsection a., we have concluded that "[a] finding of a purpose to harass may be inferred from the evidence presented," and we have observed that "[c]ommon sense and experience may inform that determination." The harassment statute defines the violation in terms of annoyance or alarm, and we have held that for purposes of subsection a., "[a]nnoyance means to disturb, irritate or bother."

[J.D. v. M.D.F., ___ N.J. ___ (2011) (slip op. at 21-22) (quoting State v. Hoffman, 149 N.J. 564, 577, 580 (1997)).]

"[I]n enforcing subsection (a) of the harassment statute, we must focus on the mode of speech employed. The statute criminalizes speech that invades one's privacy by 'its . . . offensive coarseness or extreme inconvenience' . . . ." C.M.F. v. R.G.F., 418 N.J. Super. 396, 403 (App. Div. 2011) (internal citation omitted).

Having found plaintiff's testimony credible, the judge's conclusion that defendant's conduct constituted a violation of subsection (a) is supported by the record. Therefore, having found both the predicate act of harassment under N.J.S.A. 2C:33-4(a) and a prior history of domestic violence, the trial judge properly concluded that plaintiff was in need of an FRO to protect her from what the judge found to be defendant's "repeated attempt" to harass her. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006).

Defendant's contention that he was "not provided with an adequate opportunity to present documentary evidence on his own behalf" is without sufficient merit to warrant discussion in this opinion. R. 2:11-(3)(e)(1)(E). Suffice it to say, defendant proffered numerous text messages, emails and letters from plaintiff for the purpose of demonstrating her efforts to reconcile with him, positing that she would not do so if she truly felt harassed by him. The judge stated that he clearly understood that point but told defendant that reconciliation efforts were not "really a contested fact."

The decision whether or not to admit evidence is within the sound discretion of the trial judge. Brennan v. Demello, 191 N.J. 18, 31 (2007). We find no abuse of discretion here. Notwithstanding the evidence and testimony defendant presented on this point, the judge concluded that plaintiff was the victim of domestic violence and in need of an FRO.

A