J.M.H v. S.H

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6187-09T2

J.M.H.,

Plaintiff-Respondent,

v.

S.H.,

Defendant-Appellant.

__________________________

February 16, 2012

Submitted January 30, 2012 - Decided

Before Judges Harris and Newman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-0207-11.

Frank C. Babcock, attorney for appellant.

Krumholz Dillon,P.A., attorneysfor respondent (Alan L. Krumholz, on the brief).

PER CURIAM

Defendant S.H. appeals from a final restraining order (FRO) in a domestic violence action. We affirm.

Plaintiff J.M.H. filed a complaint on July 12, 2010, against defendant alleging violation of the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to 35. Plaintiff and defendant were married in 2003 but have been together for approximately thirteen years and have a daughter, born on September 26, 2005. Plaintiff has an older son, age eighteen, who is serving in the United States Army.

A hearing was held on July 22, 2010, following the issuance of a temporary restraining order. At that time, plaintiff testified that defendant's use of alcohol and drugs went back to 1997. Although he promised to change, he did not. Plaintiff also testified that approximately two years before, the parties were on the way home from visiting relatives, when defendant who had been drinking, started arguing from the rear seat of the car and punching the back of the driver's seat while plaintiff was driving. He stopped when she threatened to call the police.

Plaintiff further testified that when she picked up her daughter at the house of defendant's father, where defendant had been babysitting, she learned that the child had been in a bar with defendant. As a result of that incident, plaintiff could no longer permit an unemployed defendant to watch his own daughter, while he remained at home and plaintiff worked. The daughter had to be placed in daycare.

Plaintiff also described an incident in early 2009 when defendant came home drunk and picked up his daughter. Because of his condition, plaintiff attempted to recover the child and was shoved by defendant. Plaintiff's son was there and pushed defendant back, advising him not to lay a hand on his mother.

In June 2010, defendant had attended a Yankees game. He came home drunk and stumbling and was looking to argue with plaintiff. Plaintiff told defendant to leave her alone or she would call the police.

On July 11, 2010, plaintiff brought her daughter to have dinner with her family. When she returned home, defendant was verbally abusive. She retreated with the child to the bedroom. Defendant pursued her but left when she threatened to call the police. He then continued to call her numerous times on her cell phone until the following morning at 2:00 AM. Plaintiff claimed that she was under emotional stress and distressed by reason of defendant's alcohol abuse. While she was not physically harmed, she felt that defendant had verbally harassed her and that she was in need of protection from his continuing verbally harassing conduct.

Defendant also testified and admitted that he drank on occasion but denied he came home drunk. He maintained that plaintiff's description of incidences were "inaccurate, exaggerated and blown out of proportion."

In deciding the case, the trial court recognized that plaintiff had the burden of proof by the preponderance of the evidence standard and found that a predicate act of harassment had been committed under N.J.S.A. 2C:33-4, satisfying the definition of domestic violence under N.J.S.A. 2C:25-19(a)(13). The trial court found that N.J.S.A. 2C:33-4(a) prohibits a person from committing a petty disorderly person offense "if, with purpose to harass another, he or she makes or causes to be made communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language or any other manner likely to cause annoyance or alarm." The trial court considered the prior history between the parties, recognizing that the issues between plaintiff and defendant had been ongoing "for a very long time." As the trial court observed: "I found that for at least the last three to four years, if not longer, plaintiff and defendant had been struggling with issues of alcohol abuse." The court further took into consideration the child in the home who was exposed to the arguments between her parents.

The court also found plaintiff testified credibly. While the court noted that she was not in fear for her physical safety, she had suffered emotional stress and distress occasioned by defendant's alcohol abuse and by his continuing harassing verbal misconduct.

On appeal, defendant raises the following issue for our consideration:

POINT I

THE COURT ERRED IN ISSUING A FINAL RESTRAINING ORDER AS THE FACTS ON THE UNDERLYING CASE DO NOT SUPPORT SUCH A FINDING.

Defendant argues that the facts do not support the issuance of a final restraining order because, in each instance, defendant "stopped" his allegedly harassing conduct after plaintiff asked him to stop. He also pointed out that plaintiff was never in fear for her physical safety. He contends that the apparent marital difficulties which exist do not rise to a level of domestic violence. We disagree.

Our review of the Family Part's fact-finding function is restricted so that "findings by the trial court are binding on appeal when supported by adequate, substantial credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010). Generally, reviewing courts "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted).

Family courts are accorded additional deference for their fact-finding because of their special expertise in such matters. Cesare, supra, 154 N.J. at 413. We will "not second-guess [Family Part judges' factual] findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (citing Cesare, supra, 154 N.J. at 413).

When determining whether to grant an FRO pursuant to the Act, the judge must apply the dual-element test set forth in Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). See also Cesare, supra, 154 N.J. at 402-05. "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:25-19(a) has occurred." Silver, supra, 387 N.J. Super. 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.

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); See also 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 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:25-29(a)(1) and (2)); see also Peranio, supra, 280 N.J. Super. at 54.

We have carefully reviewed the record and the arguments made in the briefs. We see no reason to disturb the factual findings made by Judge Foti. We conclude that the issues presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Unlike the defendant in J.D. v. M.D.F., 207 N.J. 458, 485-86 (2011) who engaged in late night photography outside his spouse's house to gather evidence for a contemplated custody fight, here there is a "course of alarming and annoying conduct" under the Act by defendant which is umbilically tied to his alcohol indulgence. We agree entirely with Judge Foti's assessment that defendant must address his alcohol abuse if he intends to avoid the types of annoying and alarming misconduct that brings him well within the umbrella of the Act.