C.P. v. N.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

C.P.,

Plaintiff-Respondent,

v.

N.P.,

Defendant-Appellant.

______________________________

December 14, 2016

Submitted November 7, 2016 Decided

Before Judges Sabatino and Currier.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1937-15.

Wernik & Salvatore, attorneys for appellant (Robin T. Wernik and David Salvatore, of counsel and on the briefs).

Albert P. Mollo, attorney for respondent.

PER CURIAM

Defendant N.P. (Nathan)1 appeals from a final restraining order (FRO) entered against him. After a review of the record and arguments in light of the applicable legal principles, we affirm.

Plaintiff C.P. (Carol) filed for and obtained a temporary restraining order (TRO) on the grounds of harassment and terroristic threats. Nathan subsequently filed for and obtained a TRO on the same grounds. The parties were involved in contentious divorce proceedings; Carol had left the marital home several months prior to the events that gave rise to her application for the TRO.

At the trial, Carol testified that on May 3, 2015, Nathan had called her twenty times. She stated that Nathan was upset with her speaking to his business partners. He specifically told her she would never "see a piece of the business" as she would be "dead" before the divorce was over. Nathan also told Carol that "he has a person to do it." As a result of these statements, Carol asserted she felt threatened and scared. Carol also testified to two prior incidents of domestic violence; one incident involved Nathan shooting a gun multiple times inside the house while she and the children were present.

Nathan denied ever threatening Carol or making the alleged statement about harming her. In support of his application for an FRO, he testified that Carol had appeared at the marital home one day and told him that she was working with "Russians" in her new job and if she "give[s] them the word they'll cut you into 1,000 pieces." Although Nathan perceived this as a threat, he did not apply for a TRO for three weeks.

In an oral decision on June 18, 2015, the judge assessed the parties' testimony and found Carol to be more credible. He noted that she had moved out of the house three months earlier and therefore, did not seek to benefit from a fabrication of these statements. After finding Carol had satisfied her proofs as to the predicate act of harassment, the judge concluded that these events and the past history between the parties necessitated the entry of an FRO. In addressing the FRO sought by Nathan, the judge determined that Nathan's statements were not credible and that he was not in fear of his wife. His request for an FRO was denied, and he has not appealed that denial.

On appeal, Nathan argues that the trial judge erred in the entry of the FRO against him as there was no determination made of Nathan's intent to harass his wife. We disagree.

Before entering an FRO, a trial judge must find, by a preponderance of the evidence, that a defendant engaged in conduct that would fit the definition of one or more criminal statutes, including harassment as defined by N.J.S.A. 2C:33-4. See Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). A defendant is guilty of the petty disorderly persons offense of harassment if, "with purpose to harass another, he . . . [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." H.E.S. v. J.C.S., 175 N.J. 309, 326 (2003). The statute requires a finding of a purpose to harass.

Although the Family Part judge did not explicitly make a finding of Nathan's intent, the Supreme Court has permitted "the finding of a purpose to harass" to "be inferred from the evidence presented and from common sense and experience." Id. at 327. Here, the judge found that Nathan had a conversation with Carol that left her annoyed and alarmed. These are sufficient findings from which to infer a determination of Nathan's intent to harass his wife. We are thus satisfied that the trial judge's factual findings as to the predicate act of harassment are fully supported by the record.

We are also satisfied that the judge had a sufficient basis to conclude that an FRO was appropriate and necessary in this case. Given the particular expertise of family part judges, it is not our place to second-guess an exercise of discretion to enter an FRO when supported by "adequate, substantial, credible evidence," as was this decision. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

We find the remainder of Nathan's arguments, including his claim that the court applied a "double standard" in evaluating the parties' credibility, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.