I.P.P. v. R.A.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5569-09T3

I.P.P.,

Plaintiff-Respondent,

v.

R.A.P.,

Defendant-Appellant.

_________________________________

May 10, 2011

Submitted March 28, 2011 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-1803-10.

Toni Ann Marcolini, attorney for appellant.

Jeney, Jeney & O'Connor, LLC, attorneys for respondent (Robert J. Jeney, Jr., on the brief).

PER CURIAM

Defendant R.P. appeals the Family Part's issuance of a Final Restraining Order ("FRO") against her in favor of plaintiff, I.P., after a trial conducted pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"). For the reasons that follow, we affirm.

At the time of the trial in June 2010, the parties were married but separated and living in separate dwellings in Elizabeth. They are the parents of a daughter, who was then age eleven and residing with defendant. The parties evidently have had a volatile relationship. Defendant, in fact, procured an FRO against plaintiff in September 2009 after he physically assaulted her.

The FRO in the present matter was granted after a trial at which both parties were represented by counsel. According to plaintiff's proofs, on May 15, 2010, defendant, accompanied by the parties' daughter, unexpectedly arrived at plaintiff's girlfriend's home, which is also located in Elizabeth. Defendant beckoned to plaintiff, who was then in the backyard, calling him an "a**hole." Plaintiff approached her. At that point defendant thrust upon him a document that was related to charges for their daughter's hearing aid. Defendant threatened plaintiff that he would go to jail if he did not pay for the item. Defendant cursed at plaintiff, calling him a "motherf**ker." She knocked a beer out of one of plaintiff's hands and a cell phone out of the other. As plaintiff described it, defendant then came up to his face, screaming and yelling. She stopped after others who were present started to gather around. Defendant then left the premises with the daughter, who, according to plaintiff, appeared frightened. Plaintiff called the police, and he thereafter filed an application for a restraining order.

Plaintiff's narrative of defendant's aggressive outburst was corroborated at trial by the testimony of his girlfriend and his girlfriend's sister, both of whom attested to being on the premises at the time. The girlfriend recounted that she saw defendant arrive at her house, beckon to plaintiff, "pitch[] a paper on him," and then knock the cell phone and the beer out of his hands. She also heard defendant scream and curse, although she was too far away to understand defendant's exact words. Similarly, the sister recalled observing defendant come in through a gate, give plaintiff a document, scream and curse at him, knock down the phone and the beer he was holding, and then depart with the child.

Plaintiff testified that he was concerned for his safety and well being after this episode. He stated that he felt harassed by defendant, who, he lamented, was continuing to feel free to speak to him face-to-face, despite the fact that she herself has a restraining order forbidding their contact.

By way of illustration, plaintiff cited to two prior incidents. According to plaintiff, defendant accosted him in October 2009 outside of the hospital where his girlfriend works, cursed at him, and grabbed his work badge out of his car. Plaintiff testified that the second prior incident occurred in April 2010, when defendant pulled up next to his car as he was dropping his girlfriend off at her home, and then spewed profanities towards him and the girlfriend. Plaintiff filed a written report of this second incident with the local police, but he apparently did not obtain a restraining order until the present case.

Defendant emphatically denied going to the house of plaintiff's girlfriend on May 15, 2010, or causing any disturbance there. She insisted that she was elsewhere during the time span between 6:00 and 6:30 p.m., when plaintiff and his witnesses estimated that she had appeared at the girlfriend's premises. In support of her claimed alibi, defendant presented testimony from a neighbor, who recalled conversing with her from about 5:30 to 6:15 p.m. that day, and from her mother, who testified that defendant and the daughter had arrived at the mother's workplace in Westfield at "around" 6:45 p.m. Defendant further presented a receipt showing that she had purchased gasoline in Elizabeth at 6:31 p.m.

Defendant also presented testimony from a friend who had accompanied her on the date of the October 2009 incident. The friend explained that defendant had needed to go to the hospital that day. The friend was surprised to see plaintiff standing on the corner by the hospital. The friend recalled plaintiff and defendant shouting at each other outside of the hospital. The friend also recalled asking plaintiff to go away, and that plaintiff complied with the request.

After sifting through the proofs, the trial judge concluded that plaintiff had established acts of domestic violence by defendant, and that he was entitled to protection under the Act. Assessing the credibility of the witnesses, the judge "absolutely believe[d]" that defendant had come to the girlfriend's house on May 15, despite her claimed alibi. The judge found it "totally credible" that defendant had gone into the girlfriend's backyard without being invited, that she had cursed at plaintiff, and that she had knocked both the cell phone and the beer out of his hands. As part of her credibility analysis, the judge commented negatively about the demeanor that defendant exhibited during the trial, which included cursing at plaintiff while in the courtroom.

The judge found that plaintiff and his witnesses had been mistaken in their approximations of the time that defendant had appeared at the premises, thereby making the attempted proofs of alibi unavailing. The judge also credited plaintiff's account of defendant's prior wrongful acts in October 2009 and in April 2010, specifically noting with regard to the latter incident that she found the girlfriend to be a credible witness.

Based upon these factual findings, the trial judge was, in her words, "absolutely" persuaded that "there is a need for a restraining order" against defendant. The judge consequently issued such an FRO, prohibiting defendant from contacting, harassing, stalking, or threatening to harm plaintiff or his girlfriend. In her bench comments, the judge urged defendant to obtain therapeutic counseling. The judge also expressed concern about the deleterious impact that the hostile behavior of the parties both of whom are now subject to a restraining order could have upon their daughter, urging them to avoid future conflict.

Defendant now appeals, contending that the trial court's factual finding that she engaged in domestic violence is not supported by the record, and that restraints were unnecessarily imposed upon her.

Our standard of review in this domestic violence matter is exceedingly circumscribed. In particular, we must defer to the trial judge's factual findings unless they are shown to be so "clearly mistaken" or "wide of the mark" that are not reasonably supported by the record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)); see C.M.F. v. R.G.F., 418 N.J. Super. 396, 401 (App. Div. 2011). We must accord considerable weight to the trial judge's findings of credibility, given that the judge is in a unique position to evaluate the demeanor of the parties and the other witnesses. See Cesare v. Cesare, 154 N.J. 394, 412 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). As the Supreme Court has emphasized, we owe special deference to the expertise of the Family Part in making often difficult judgments about the lives of families and children. See E.P., supra, 196 N.J. at 104; Cesare, supra, 154 N.J. at 413.

Applying that circumscribed review standard here, we affirm the trial court's findings, as they are supported by substantial credible evidence in the record. The trial judge provided ample reasons explaining why she rejected defendant's attempted alibi, given the approximated nature of the time lines posited by several of the witnesses.

Although the judge did not explicitly classify defendant's wrongful conduct as harassment, the proofs adduced at trial sufficed to prove that she engaged in such harassment, one of the predicate offenses that can support a finding of domestic violence and the issuance of an FRO. See N.J.S.A. 2C:25-19(a)(13). Harassment is defined in the Criminal Code to encompass conduct in which a defendant, "with purpose to harass another":

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;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

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

[N.J.S.A. 2C:33-4 (emphasis added).]

Here, the proofs found credible by the trial judge adequately established that defendant struck or "offensively touched" plaintiff's hands, yelled profanities or "offensively coarse" words at him, and otherwise engaged in a course of conduct designed to alarm or seriously annoy him.

Defendant's manifest desire to harass plaintiff, who was dating another woman, is amply reflected by the proofs of her behavior, her demeanor at trial, and the surrounding circumstances. Her harassing conduct is not excused by plaintiff's own prior acts of domestic violence, nor by his alleged failure to pay his child's medical bill. The cases cited in defendant's brief on this issue generally involved weaker claims of harassing conduct, and those cases do not undermine the judgment issued here.1

Affirmed.

1 Our recent published opinion in E.M.B. v. R.F.B., ___ N.J. Super. ___ (App. Div. Apr. 19, 2011), reversing an FRO based upon allegations of harassment, is not helpful to defendant here. In E.M.B., the sole conduct alleged to be harassment was the defendant calling the plaintiff, his mother, a "senile old bitch." Id., slip op. at 6. Unlike the instant case, the defendant in E.M.B. did not physically strike the plaintiff. There was no credible proof that he acted with a purpose to alarm or seriously annoy his mother, id. at 7, nor any evidence that he had harassed her in the past. Id. at 8.