D.G. v. W.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2395-11T4

D.G.,

Plaintiff-Respondent,

v.

W.G.,

Defendant-Appellant.

___________________________

March 14, 2013

Submitted March 5, 2013 - Decided

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-0822-12.

Raff & Mason, P.A., attorneys for appellant (Paul N. Weeks, of counsel and on the brief).

D.G., respondent pro se.

PER CURIAM

Defendant W.G. appeals from a November 29, 2011 final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act (PVDA), N.J.S.A. 2C:25-17 to -35. The FRO arose from a complaint filed by defendant's former wife, D.G. For the reasons that follow, we affirm.

The parties were divorced in December 2010. They had two children, then ages seventeen and nineteen years old. On September 29, 2011, D.G. applied for and obtained a temporary restraining order. Her application alleged that on September 26, 2011, defendant drove back and forth past her house six times, then parked his car and walked back and forth past her house, watching her through a window. She alleged that defendant then telephoned her, asked her "if she was packing," and stated that "he could find her wherever she went." The complaint also alleged an extensive history of domestic violence, including stalking and physical violence.

The FRO hearing was held on November 29, 2011. The trial judge specifically advised both parties of their right to obtain counsel and offered them an adjournment for that purpose. However, both sides indicated that they wished to proceed pro se. At the hearing, plaintiff testified that at about 7:30 p.m. on September 26, 2011, she saw defendant drive past her house. After driving "six times back and forth," he "parked the car" on the street in a location where "he [could] see what's going on in the kitchen" of her house. Defendant then telephoned plaintiff from outside the house, stating that "whenever you move . . . I'll find you." She told him to stop "harassing" her and called the police, but defendant left before they arrived.

In answer to the judge's question, plaintiff explained that while defendant was driving past her house, he tried to get her attention by slowing down and looking at the house. She also explained that after defendant parked his car, he walked back and forth in front of her house before he telephoned and threatened to "track" her. On cross-examination, she further testified that defendant stated, "I'll follow you. . . . I'll find you anywhere."

Plaintiff also testified that, at the end of November 2010, shortly before their divorce, defendant started following her to her job. She did not see him following her, but two weeks later, he admitted it: "he told me that he knows where I go and he presented the whole list of the dates, where I went. . . . When I arrived . . . to the place and when I left."

Plaintiff testified that during two additional episodes occurring in the same November time frame, defendant grabbed her by the throat and threw hot tea at her. She reported the choking incident to the police. However, she did not file for a restraining order because the parties had a scheduled divorce mediation and she thought applying for restraints would delay that process. She also testified that, during the marriage, defendant forced her to have sexual relations against her will. Plaintiff confirmed that, based on the prior incidents of domestic violence, and the incident on September 26, 2011, she was presently in fear for her life, health and well-being. In his testimony, defendant stated that he frequently drove to the house where plaintiff lived, for the purpose of picking up their seventeen-year-old son and taking him out for a meal. He also admitted that on September 26, he drove to the house and parked. However, he claimed the visit occurred in the context of a dispute over the division of marital property. He testified that he thought plaintiff was moving some of that property out of the home and he wanted to catch her. According to defendant, he had a camera with him and "was hoping to take the picture of [plaintiff and her sister] putting the stuff . . . in [plaintiff's] SUV." He testified that when he telephoned her from outside the house, he told plaintiff, "I know what you're doing. You're removing the property from the house that belongs to both of us."

The judge placed his oral opinion on the record on November 29, 2011. He found that, despite defendant's claim that he was merely trying to exercise self-help in a property dispute, defendant in fact parked outside plaintiff's house and telephoned her for the purpose of "alarm[ing] . . . plaintiff and [he] succeeded in doing so." He also found, under Silver v. Silver, 387 N.J. Super. 112, 126-28 (App. Div. 2006), that it was necessary to enter the FRO because the parties "have ongoing issues that [they] cannot resolve." In the FRO itself, the judge further noted his conclusion that "[t]he FRO is required to protect the plaintiff."

On the record, the judge cautioned defendant that if he had disputes with plaintiff over property, he should file a motion with the court, instead of coming to the house and threatening her. The judge also told defendant that he was not permitted to enter upon plaintiff's property. If he wanted to visit with their younger son, he should telephone the son, ask the son to alert plaintiff that defendant would be stopping by for that purpose, and arrange for the son to meet him at the curb.

On this appeal, our review of the trial judge's decision is limited. We are bound by his factual findings, so long as they are supported by sufficient credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We owe particular deference to the judge's credibility determinations and to his special expertise in handling matrimonial disputes. Id. at 413; see also J.D. v. M.D.F., 207 N.J. 458, 482 (2011). We respect the judge's "feel" for the dynamics of the parties' relationship, because he had the opportunity to see and hear their testimony. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). After reviewing the record in light of those standards, we find no basis to disturb the judge's decision.

In his appeal, defendant contends that his conduct was part of an ongoing dispute over marital property and did not rise to the level of harassment. He argues that the September 26 incident was a mere "domestic contretemps" that did not warrant the entry of the FRO. Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995). We cannot agree.

Defendant's current "spin" on the facts is consistent with his hearing testimony, but the trial judge did not credit defendant's version of the September 26 incident. Instead, the judge found that defendant's conduct on that date was undertaken for the improper purpose of alarming plaintiff and that she was alarmed.

Although he did not specifically so state, we infer that the judge also credited plaintiff's testimony concerning the prior acts of domestic violence. Defendant did not rebut plaintiff's testimony that he previously followed her to her job and then confronted her with lists of her activities, to let her know he had her under surveillance. See Pazienza v. Camarata, 381 N.J. Super. 173, 183-84 (App. Div. 2005). He also did not deny her allegations that he previously grabbed her by the throat and threw hot tea at her.

Harassment is one of the predicate acts for a finding of domestic violence. See N.J.S.A. 2C:25-19a(13). Harassment occurs when "with purpose to harass another," a defendant "[m]akes . . . a communication or communications" in a "manner likely to cause annoyance or alarm," N.J.S.A. 2C:33-4a, or "[e]ngages in any other course of alarming conduct . . . with purpose to alarm or seriously annoy" the victim. N.J.S.A. 2C:33-4c.

The record amply supports a finding that defendant's entire course of conduct on September 26 was undertaken for the purpose of alarming or seriously annoying plaintiff, and he succeeded in doing so. N.J.S.A. 2C:33-4c. Moreover, viewed in context, defendant's phone call to plaintiff, telling her that he would find her wherever she went, was a "communication" made for the purpose of harassment and was made in a "manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4a.

We find no error in the judge's decision to enter the FRO. The parties had ongoing conflicts over property and visitation issues, and therefore would likely have future interactions. Defendant had a history of domestic violence, and plaintiff reasonably feared additional episodes. We agree with the trial judge that a FRO was necessary to prevent defendant from engaging in future harassment. See N.J.S.A. 2C:25-29b; J.D., supra, 207 N.J. at 476.

Affirmed.