A.D v. TOBIN ETLIS

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4199-10T1

A.D.,

Plaintiff-Respondent,

v.

TOBIN ETLIS,

Defendant-Appellant.

_________________________________

March 15, 2012

Submitted March 5, 2012 - Decided

Before Judges A. A. Rodr guez and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-3090-10.

John W. Hartmann, attorney for appellant.

Calcagno & Associates, attorneys for respondent (Craig A. Borgen, on the brief).

PER CURIAM

Defendant appeals from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. The primary issue is whether the FRO was necessary to protect plaintiff. We affirm.

The parties engaged in a dating relationship that lasted approximately six months. Thereafter, defendant belittled, berated, and left crude messages for her. He communicated with plaintiff by calling her in the early morning hours, using Facebook, sending text messages, leaving voicemails, making phone calls, and calling her parents' house. Plaintiff contended that defendant's communications constituted a predicate act of harassment, N.J.S.A. 2C:33-4a, and that an FRO was necessary because she feared him.

The judge conducted the FRO hearing and listened to testimony from the parties and the parties' mothers. The judge found plaintiff to be a credible witness and stated, "I don't find at all credible [defendant's] testimony [because] he contradicted himself three or four times[.]" The judge then determined that defendant harassed plaintiff and issued the FRO to prevent future abuse.

On appeal, defendant argues that the judge erred by concluding that the FRO was necessary to protect plaintiff because of the geographical distance between the parties, lack of contact, and lack of actual history of violence between the parties. Defendant does not dispute the judge's credibility findings or his conclusion that defendant acted with the purpose to harass plaintiff.

When determining whether to grant an FRO pursuant to the Act, the judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006). "First, the judge must 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:25-19a has occurred." Id. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.

Here, the defendant concedes on appeal that he acted with the purpose to harass. We conclude that the judge properly found that defendant committed the predicate act of harassment, N.J.S.A. 2C:33-4a. Therefore, we focus on whether the FRO was necessary.

As we have recently stated, there must be a finding that "'relief is necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)); L.M.F. v. J.A.F., 421 N.J. Super. 523, 536-37 (App. Div. 2011). It is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The determination whether such an order should be issued must be made "in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment[,] and physical abuse and in light of whether immediate danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29a(1) and (2)); Peranio, supra, 280 N.J. Super. at 54. Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127.

In concluding the FRO was necessary to prevent future abuse, the judge stated:

[W]e have to look at the second prong of the Silver test, the necessity of the restraining order to protect the victim from danger or to prevent further abuse. Considering these communications, particularly involving the parents, I do understand [that] the defendant has moved on [and is out of state]. But I do think [that] the history is not a good history even in that short time. So I do think she needs and is entitled to [the protection of an FRO].

So what the [c]ourt is going to do now [is] discuss the propensity of further abuse. I think that's this type of a case. Particularly in light of the totally incredible testimony [from defendant] that he sent any of these messages or said anything that was at all troubling to her, or her parents. I do think there's a propensity for future abuse. So we're going to stop it. It doesn't mean the parties can't live their lives. [Defendant] has testified that he has a new life up in New Hampshire or in the New England area[.] He should continue all of his work up there. He's just not going to be able to legally have any contact with [plaintiff] or her family.

After their relationship, plaintiff received messages from defendant threatening her and her parents. Defendant called plaintiff's parents between midnight and 3:00 a.m., accused her father of being "a bad parent," and stated that her father "raised a daughter that has no worth living." Defendant broke plaintiff's cell phone twice by throwing it on the floor "because [plaintiff] was talking to someone he didn't like," and defendant "told [plaintiff that] he had a gun and he had no problem using it," meaning that "he would kill [her] if he could." We conclude that the judge did not abuse his discretion by finding that the FRO was necessary to prevent further abuse, even though defendant may now be a resident of a different state.