K.M. v. J.P.C.

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RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4410-12T2

K.M.,

Plaintiff-Respondent,

v.

J.P.C.,

Defendant-Appellant.

____________________________________

January 29, 2015

 

Submitted November 5, 2014 Decided

Before Judges Fisher and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1772-13.

Winne, Banta, Hetherington, Basralian & Kahn, P.C., attorneys for appellant (Thomas R. McConnell, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order entered against him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm.

The facts were established at a hearing in which only the parties testified. Plaintiff testified the parties had an on-again, off-again dating relationship for three years. Defendant was married to someone else at the time and lived with his wife. Plaintiff broke off the relationship in August 2012, by telling defendant she was not willing to wait for him any longer. She described defendant as on a "downward spiral" at the time. Defendant, a fire-fighter and reservist, had been deployed to Iraq and Afghanistan while they were seeing one another and was being treated for post-traumatic stress disorder, anxiety, depression and alcoholism.

Plaintiff testified the parties had been very close and that she told him when she broke it off she was willing to remain his friend. She testified that defendant, while sad about the break-up, said he understood. Although plaintiff said she refused his requests to meet, the parties talked and remained in contact through texts and email. According to plaintiff, their interactions were civil.

Plaintiff testified that changed in November, when defendant learned she was seeing a superior officer in his fire company. She claimed that afterwards he would telephone or text her professing his love for her and expressing his anger at her seeing his superior. Plaintiff testified this continued for months. She said defendant's escalating anger and recriminations had made her afraid of him, and she had sought the restraining order after a particularly vulgar and offensive barrage of text and voice mail messages over the course of a day in March 2013.

Plaintiff told the judge she knew that "[h]e had been through a lot" but she "understood that and . . . was never afraid of him before this." She claimed, however, "his anger has done nothing but escalate and whatever treatment it is that he says he's been receiving, he's either not following it or it's not working because it's done nothing but escalate, and now I'm concerned to be at my house."

Defendant confirmed he was being treated for post- traumatic stress disorder, anxiety, depression and alcoholism. He acknowledged the text messages and voice mails he sent to plaintiff the day before she sought the restraining order, saying he was ashamed of what he had said, and that he did not mean any of it. He explained he had just days before learned plaintiff was ending their relationship and seeing his lieutenant, and that he was still in love with her and very hurt. After seeing plaintiff's new boyfriend at work, he had gone to a bar, gotten drunk and angry and telephoned plaintiff and said a lot of things he regretted. He told the judge he had no intention of ever contacting plaintiff again.

In response to the judge's questions, defendant expressly confirmed for her that he only learned plaintiff was seeing his lieutenant days before he sent those messages in March. On cross-examination, however, he was forced to admit to several texts he sent plaintiff the prior November acknowledging his awareness of that relationship. Having heard the testimony, including the voice mail messages and texts plaintiff presented, the judge had no difficulty concluding "defendant's behavior toward the plaintiff constituted harassment within the meaning of [N.J.S.A.] 2C:33-4a and c."

The judge rejected defendant's contention that the conduct consisted of only thirty-six minutes of an alcohol-fueled emotional outburst. Instead, she found "defendant has what appears to be an uncontrollable rage about the plaintiff moving on and being in a different relationship," that he could not stop or get under control "until a restraining order was entered." The judge explained that

in some cases, when I think bad behavior takes place in a fairly narrow window of time based on a break up of a relationship even when it's extreme, I don't always enter the restraining orders. This is not a narrow window of time. This is bad behavior, harassing communications, vulgar communications, angry communications, jealous communications that go over a period of months. And the plaintiff is entitled not to have that.

The judge was also "satisfied that the restraining order [was] necessary to protect the plaintiff," stating, "I know that the defendant has every intention of not contacting her, but I also think that it's quite possible that the defendant will find himself under the influence of alcohol again, and I think he'll need the deterrent of the restraining order."

On appeal, defendant claims that the trial court failed to consider the factors set forth in the Act and Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006), or make findings of fact and conclusions of law. He also contends the court "considered testimony not set forth in plaintiff's [temporary restraining order] in determining the existence of the offense of harassment." We reject those arguments.

Our review of a trial court's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Findings by the trial court "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)). Deference is especially appropriate in a case, such as this one, in which the evidence is largely testimonial and involves questions of credibility because the trial court's ability to see and hear the witnesses provides it a better perspective than a reviewing court to judge their veracity. Ibid.

A final restraining order may issue only if the judge finds the parties have a relationship bringing the complained of conduct within the Act, N.J.S.A. 2C:25-19(d); the defendant committed an act designated as domestic violence, N.J.S.A. 2C:25-19(a); and the "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 125-27.

Applying those standards here, we find no basis to upset the factual findings or legal conclusions of the trial court set forth above. Both parties testified at length. The judge had ample opportunity to judge their credibility and obviously found defendant's wanting. He claimed that he had a regrettable but understandable reaction to news that the woman he had been seeing for three years had broken off their relationship to take up with his boss. Plaintiff painted a different picture of a former boyfriend who refused to let go, whose hurt and anger continued to escalate to alarming heights months after learning plaintiff had moved on.

The judgment of the trial court that defendant had committed an act of harassment and a restraining order was necessary to protect plaintiff from further abuse is based on findings of fact adequately supported by the evidence. R. 2:11-3(e)(1)(A). Defendant's claims to the contrary and that the court considered testimony not included in plaintiff's complaint are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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