M.H v. A.T

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4794-09T3

M.H.,

Plaintiff-Respondent,

v.

A.T.,

Defendant-Appellant.

_______________________________________

March 16, 2012

 

Submitted February 7, 2012 Decided

 

Before Judges Yannotti and Kennedy.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-001440-10.

 

Leonard Law Group, L.L.C., attorneys for appellant (Erika A. Appenzeller, on the brief).

 

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order (FRO) entered by the Family Part on May 5, 2010, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.

On March 28, 2010, plaintiff filed a complaint alleging that defendant committed a predicate act of domestic violence in violation of the PDVA, specifically harassment. On March 29, 2010, the trial court issued a preliminary restraining order and scheduled the matter for a final hearing on whether a FRO should be issued. The hearing took place on May 5, 2010.

Plaintiff testified that she worked as a floorperson in a casino in Atlantic City. Defendant was a player at the casino. Plaintiff went out with defendant at various times from November 2009 to March 2010. Defendant thereafter would show up at plaintiff's home uninvited and ask her to go out. She refused. Plaintiff said that defendant continually called or sent her text messages, even though she told him not to do so. Between March 18 and March 24, 2010, defendant sent plaintiff 134 text messages.

Plaintiff stated that she told defendant several times to leave her alone. She said she would go to the police if he persisted, but defendant replied that he had "a really high position in the government" and the police would not listen to her. Plaintiff stated that she believed defendant would use his governmental position against her.

Plaintiff further testified that on one occasion, defendant came to her home and asked her to come outside. She told defendant that he could talk to her through the screen door. Defendant stated that he "just want[ed] to be [her] friend." Plaintiff replied that she was scared of him, and she asked defendant to leave her alone. According to plaintiff, defendant started to get mad. Defendant said he would find her, wherever she goes.

On cross-examination, plaintiff was asked about her relationship with defendant. Plaintiff stated that from time to time, she went out with defendant and other friends. She did not want to go out on a date alone with defendant. Plaintiff said that she and defendant were just friends and she was not interested in having a relationship with him.

Plaintiff also stated that she did not hold defendant's hand or "anything else." There was no kissing and no sex. She did not know whether her employer had a policy that precluded a floorperson from dating a player. Plaintiff had not been told of such a policy.

K.J. testified that he worked at the casino where plaintiff is employed. K.J. rented a room in plaintiff's home a couple of days a week, so he would not have to commute to his home in Cherry Hill. K.J. said that he knew defendant because he was a player in the casino.

K.J. also testified that in late March 2010, between nine and eleven o'clock p.m.`, he saw defendant in the driveway of plaintiff's home. K.J. was downstairs in the basement, and he heard plaintiff yelling at defendant. He heard plaintiff tell defendant she was going to call the police. K.J. saw defendant driving away.

S.R. is employed in the casino where plaintiff works. S.R. testified that she and plaintiff are "good friends." S.R. said that she knew of defendant. She stated that plaintiff was upset because defendant kept calling her even though she told him not to do so. S.R. said that plaintiff did not want to be alone because she was concerned about defendant. S.R. was with plaintiff when defendant called, and she heard plaintiff tell defendant to stop calling her.

On cross-examination, S.R. stated that the casino's policy is that floorpersons are not allowed to date players. She testified plaintiff and defendant went out gambling, drinking and eating with other friends but defendant "wanted . . . more than that." S.R. did not believe plaintiff had a dating relationship with defendant. According to S.R., plaintiff had spoken of her relationship with defendant as "[j]ust being friends."

Defendant did not testify at the hearing. He moved to dismiss the complaint on the ground that the PDVA did not apply because he did not have a dating relationship with plaintiff. The trial court denied the motion and determined that the parties had a dating relationship and defendant had committed a predicate act of domestic violence in violation of the PDVA. The court entered a FRO dated May 5, 2010, which, among other things, barred defendant from plaintiff's residence and the hotel and casino where plaintiff is employed.

Defendant appeals and argues that the trial court erred by: (1) finding that a dating relationship existed between the parties; (2) considering exhibits that were never moved into evidence; and (3) barring defendant from the hotel and casino property where plaintiff is employed.

We have carefully considered the record in light of these contentions and the applicable law. We conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following comments.

"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). The trial court's factual findings "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 412 (citing Rova Farms Resort, Inc. v. Investors Ins. co., 65 N.J. 474, 484 (1974)). Furthermore, an appellate court should defer to the findings of the Family Part because of its special jurisdiction and expertise in family matters. Id. at 413.

The PDVA defines the term "domestic violence" to mean "the occurrence of one or more" acts, including harassment, inflicted upon a person protected by the act. N.J.S.A. 2C:25-19(a). The PDVA additionally defines the term "victim of domestic violence" to include "any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship." N.J.S.A. 2C:25-19(d). The term "dating relationship" is not defined in the PDVA.

Where, as here, the court must determine whether the parties had a "dating relationship" the court must view the facts in light of the State's strong public policy against domestic violence. J.S. v. J.F., 410 N.J. Super. 611, 614 (App. Div. 2009) (citing Cesare, supra, 154 N.J. at 400). In resolving that issue, the court may consider the factors identified in Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003). Id. at 613-14. Those factors are:

1. Was there a minimal social interpersonal bonding of the parties over and above a mere casual fraternization?

 

2. How long did the alleged dating activities continue prior to the acts of domestic violence alleged?

 

3. What were the nature and frequency of the parties' interactions?

 

4. What were the parties' ongoing expectations with respect to the relationship, either individually or jointly?

 

5. Did the parties demonstrate an affirmation of their relationship before others by statement or conduct?

 

6. Are there any other reasons unique to the case that support or detract from a finding that a "dating relationship" exists?

 

[Andrews, supra, 363 N.J. Super. at 260].

 

However, none of these factors are determinative, and other factors may merit consideration. J.S., supra, 410 N.J. Super. at 614. This is so because "'[d]ating' is a loose concept undoubtedly defined differently by members of different socio-economic groups and from one generation to the next." Id. at 615-16.

In this case, the trial court considered the Andrews factors and found that parties had engaged in a dating relationship. The court found that, at the very least, there was "minimal social interpersonal bonding" which went beyond "mere casual fraternization." This was evidenced by the fact that the parties went out together gambling and dining on several occasions. The court noted that the dating activity continued "right up to" the alleged acts of harassment.

The court also found that the parties had interacted frequently by text messages and otherwise. In addition, the court found that defendant viewed the relationship more seriously than plaintiff, but the parties had affirmed their relationship by going out together frequently.

We recognize that plaintiff testified that she did not consider defendant her boyfriend. She stated that she never held hands with defendant, never told defendant she liked him, and considered defendant to be just a friend. We also recognize that S.R. testified that she did not believe that the parties were engaged in a dating relationship.

Nevertheless, the evidence established that the parties went out together numerous times and, as the trial court found, the parties engaged in "minimal social interpersonal bonding" that went beyond "mere casual fraternization." In our view, the evidence supports the trial court's determination that the parties had engaged in a dating relationship and, therefore plaintiff was a "victim of domestic violence" as that term is defined in N.J.S.A. 2C:25-19(b).

Defendant additionally argues that the trial court erred by considering certain exhibits that were not formally introduced as evidence. One exhibit was a photograph made of an "instant message" that defendant sent to plaintiff. The other exhibit was a copy of cell phone bills which showed that defendant sent plaintiff 134 text messages.

We note that, despite defendant's claim to the contrary, the court did in fact admit the photograph into evidence. Moreover, the court's findings indicate that it viewed the phone bills as evidence in the case. We do not believe the court abused its discretion by considering this evidence. Even if the court erred by doing so, the error is harmless. Plaintiff's testimony established that defendant made numerous harassing communications by phone and text messages. The exhibits merely corroborated her testimony.

D

efendant additionally argues that the trial court erred by barring him from the hotel and casino where plaintiff is employed. Again, we disagree. It is reasonable to assume that defendant could interact with plaintiff if he entered the hotel or casino where she works. The court noted that defendant did not work at that location and if he wanted to gamble, he could do so elsewhere. We are satisfied that the disputed provision of the FRO is reasonably designed to protect plaintiff from further acts of domestic violence.

Affirmed.