PHILOMENA COLOMBO v. GARY COLOMBO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1231-05T11231-05T1

PHILOMENA COLOMBO,

Plaintiff-Respondent,

v.

GARY COLOMBO,

Defendant-Appellant.

_______________________________________

 

Submitted September 12, 2006 - Decided October 19, 2006

Before Judges Lisa and Grall.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen

County, FV-02-823-05.

Evan F. Nappen, attorney for appellant (Richard V. Gilbert, on the brief).

Rachel D. Kaplan, attorney for respondent.

PER CURIAM

Defendant Gary Colombo appeals from a final restraining order entered on a complaint filed by plaintiff Philomena Colombo pursuant to the Prevention of the Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Because the judge's factual findings are supported by "adequate, substantial, credible evidence," we affirm. See Cesare v. Cesare, 154 N.J. 394, 412 (1998).

Nearly one year before plaintiff filed this complaint, she and defendant separated after twenty years of marriage and he filed a complaint for divorce. Subsequently, plaintiff filed a complaint under PDVA, which she dismissed when civil restraints were included in an order entered in the action for dissolution of the marriage. Plaintiff filed this complaint on September 29, 2004. She alleged that defendant had committed acts constituting terroristic threats and harassment on September 22 and 27, 2004.

The Colombos have three children. Their seventeen-year-old son testified about his encounter with his father on September 22, 2004. At approximately 11:30 p.m., the boy drove his mother's car into the parking lot of a local convenience store. As he and his friend left the car and walked toward the store, he noticed his father standing beside his truck. The father and son did not speak. The boy went inside, made a purchase and returned to find several police officers near his mother's car. He used his cell phone to call her. Defendant, who is employed as an officer of the Bergen County Sheriff's Department, stood nearby while the officers spoke to his son. After questioning him about his permission to use the car, the officers allowed the boy to leave. Plaintiff was upset about the incident, but she took no action.

Plaintiff testified about her encounter with defendant on September 27, 2004. At approximately 11:10 p.m., she was driving on a narrow street near her home. Because parked cars left insufficient room for two-way traffic, she pulled to the side of the road to allow an oncoming vehicle to pass. Defendant was the driver. He stopped his truck and rolled down the window. He asked plaintiff, in vulgar terms, whether their son and his friend had been frightened by their encounter with the police in the parking lot of the convenience store. He criticized plaintiff for protecting their children too much and questioned her about what she would do if he took one of them off the planet. He further inquired as to what she would do when all of their children were dead or she was dead. He warned that he was a "mean" person who could get it done. He then raised his hand and gestured as if it were a gun that he was firing. Although his face had been twisted with anger, he suddenly calmed down, made another gesture with his hand and drove away.

Plaintiff assumed defendant was on the way to work his midnight shift and took no action that night. Because the courthouse was closed due to flooding the next day, she did not file this domestic violence complaint until the next day.

Plaintiff testified about defendant's conduct prior to their separation. He had backed her against a wall, placed his hands on either side of her so that she could not move and yelled in her face. He also pinned her in a chair by placing a hand on each of its arms.

Plaintiff also described her efforts to protect the children from what she viewed as excessive physical discipline and psychological abuse that defendant inflicted upon them. According to plaintiff, defendant told their eldest son he would not make it through army training and would likely be shot in the back on a battlefield. On another occasion, after he had been drinking, defendant became enraged when their eighteen-year-old daughter left the house after midnight. Although defendant went to bed, he later got up, took his gun from a safe and went downstairs. She called the police. When they arrived, defendant was writing a note to his daughter. His gun was nearby.

Defendant also testified. He admitted that he had called the police when he saw his son drive into the parking lot of the convenience store on September 22, 2004. He explained that he was concerned about the manner in which the boy was driving the car that still bore his PBA license plates.

Defendant denied all other allegations. In support of his claim that he did not even see plaintiff on the night of September 27, 2004, he presented witnesses who gave general testimony about his work schedule and ordinary departure and arrival times.

The judge credited plaintiff's testimony and rejected defendant's denial of the incident on September 27 and the prior incident involving his daughter. He found that defendant committed an act of harassment when he "pulled up next to the plaintiff, rolled down his window, cursed at her, made a gesture with his . . . hand as if it were a gun, all to harass plaintiff." On that basis, he entered a final restraining order.

Defendant presents the following issues on appeal:

I. THE COURT BELOW ERRED IN FINDING THAT

THE APPELLANT'S CONDUCT CONSTITUTED

"HARASSMENT."

a. The lower [c]ourt's finding regarding the appellant's alleged expression was an unconstitutionally overbroad interpretation of "harassment."

b. The [c]ourt below erred in finding that the appellant's alleged conduct rose to the level of "harassment."

c. The lower [c]ourt's finding offends public policy.

II. THE COURT BELOW ERRED BY NOT MEETING

THE PREPONDERANCE OF THE EVIDENCE

STANDARD.

Our review of the record in light of the issues raised convinces us that the judge's legal conclusions are consistent with controlling legal principles and that the evidence was adequate to support a finding of harassment by a preponderance of the evidence. R. 2:11-3(e)(1)(A). The judge properly considered the historical evidence of defendant's conduct toward his family and concluded that defendant acted with the purpose to harass and alarm when he stopped his wife on the street late at night and delivered an implied threat to kill, which was accompanied with a gesture illustrating a method of attack. See A.R. v. M.R., 351 N.J. Super. 512, 520 (App. Div. 2002) (discussing the relevance of the history of the parties' relationship). It is clear that the judge found and described a course of alarming conduct in which defendant engaged with the purpose to harass and alarm his wife. N.J.S.A. 2C:33-4c; see State v. J.T., 294 N.J. Super. 540, 545 (1996) (discussing the meaning of the phrase "course of conduct"). Where the evidence is adequate to support a finding of the essential elements of harassment, it is improper for this court to reverse on the ground that the judge did not express those findings with explicit reference to the statute. See Cesare, supra, 154 N.J. at 413-14. Defendant cannot seriously contend that the conduct the judge found amounts to protected speech, mere domestic contretemps or communication equivalent to name-calling. See State v. Hoffman, 149 N.J. 564, 580-83 (1997) (distinguishing speech and conduct); State v. L.C., 283 N.J. Super. 441, 448-51 (App. Div. 1995) (name-calling), certif. denied, 143 N.J. 325 (1996); Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995) (contretemps). Accordingly, we afford this decision of the judge of the Family Part the deference it is due. Cesare, supra, 154 N.J. at 412.

Affirmed.

 

Plaintiff testified about the first complaint and "civil restraining" order. The parties did not include either in the appendix submitted on the appeal.

(continued)

(continued)

7

A-1231-05T1

RECORD IMPOUNDED

October 19, 2006