STEPHANIE BAILEY v. DOUGLAS J. PSHICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4090-04T24090-04T2

STEPHANIE BAILEY,

Plaintiff-Respondent,

v.

DOUGLAS J. PSHICK,

Defendant-Appellant.

_________________________________________________

 

Argued January 10, 2006 - Decided January 30, 2006

Before Judges Payne and Sabatino.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Morris County, FV-14-927-05.

Michael J. Milewski argued the cause for

appellant.

Pamela A. Dougherty argued the cause for

respondent.

PER CURIAM

Defendant Douglas Pshick appeals from the entry of a final restraining order against him arising out of his harassment of his former girlfriend, plaintiff Stephanie Bailey.

On appeal, he raises the following arguments:

Point 1

Issuance of a Final Domestic Order has serious impact on the life of the defendant, therefore facts must be presented to show a serious crime in order to support a domestic violence claim.

Point 2

The courts have held that the plaintiff must show immediate danger and previous history of violence to support a domestic violence complaint.

Point 3

Evidence does not support the fact that the harassment statute was violated and therefore the domestic violence complaint must be denied.

Point 4

There is no evidence of purpose to harass the plaintiff by the defendant in this case and therefore harassment and domestic violence cannot be found.

Point 5

The plaintiff's conduct constitutes a better than normal reaction to the ending of a three year relationship and therefore cannot be found to be domestic violence.

We affirm.

I.

Testimony by Bailey at the bench trial of this matter disclosed that, following an approximately three-year on-and-off-again relationship with Pshick, Bailey severed her ties with him and apparently commenced an intimate relationship with a different male, Keith Groco.

During the evening of February 25, 2005, Pshick left a telephone message on Bailey's phone stating "he was sorry for a lot of things that had happened and that he wouldn't bother [Bailey] any more." When asked to describe her expectations following the receipt of that call, Bailey testified: "I had hoped that meant that phone calls would stop; that I wouldn't have to - I wouldn't be afraid of him driving by late at night."

Bailey confirmed that by February 25, the dating relationship was over and had been terminated for a period of two months. She testified:

Over the last couple of months, I have told Doug 100 times, 100 different ways that I did not want to resume our relationship, I didn't want to see him any more. I even told him that I didn't love him anymore.

Although on previous occasions, Bailey and Pshick had reconciled, Bailey stated that

[t]his was different. We had set a time to stop seeing each other. And I stuck with that time. He did not. And when he did pursue me, I did tell him I was clear that I didn't want to be with him anymore.

Nonetheless, with knowledge (according to Bailey) that Bailey had a new boyfriend, on the morning of Saturday, February 26, at approximately 8:30, Pshick appeared, uninvited, on Bailey's front doorstep and rang the door bell, having driven there from his home in Rockaway, located approximately twenty-five minutes away. When Bailey failed to respond, Pshick walked down the driveway, crossed the street, got into his van, and drove away.

Several hours later, while Bailey and Groco were in the kitchen where Bailey was making breakfast, Pshick reappeared. Bailey testified:

Keith said that there - he told me that there was someone on my front porch again. I looked through the living room, and I did see Doug's head through the top window of the door, which really startled me. I looked back, and he wasn't there. The next thing I knew, he was on my back deck at the glass doors.

Bailey then testified that Pshick "yanked open the screen door, and he had his hand on the handle, and he asked to be let in." Pshick's demeanor was described by Bailey as "upset" and "angry." Although Bailey conceded that Pshick uttered no threats, she stated: "When he's agitated like that, he - I - I'm on my guard. I'm frightened." After Pshick had "demanded" to be let in, Bailey testified that she asked him to go away. However, Pshick stayed at the door. At that point, Bailey "turned into the living room to get my phone, and [she] called the police." Even after that, according to Bailey, Pshick remained.

Although initially denying that Pshick had previously caused bodily injury to her or property damage, Bailey later testified that on a prior occasion Pshick had committed physical violence directed at her, and that on another occasion, Pshick had punched one of the interior doors of Bailey's house, splitting it. Bailey testified also to a prior occasion the previous December when the police had been called after Pshick had showed up at Bailey's house at 10:00 p.m., after being asked not to come. Pshick had additionally shown up at Bailey's house in January. Bailey testified that although she had then seen Pshick at a bar in early February, at that time they had talked about the fact that Bailey did not wish to reconcile.

Groco, who testified as a witness at the proceedings, essentially confirmed Bailey's version of the events on February 26, describing Pshick as making a "commotion" when he came to Bailey's front door and further describing Bailey as being upset as the result of Pshick's presence. Groco also testified that, while at the back door, Pshick implicitly threatened him by demanding that he "step outside." Additionally, Groco said that after Pshick became aware that Bailey was going to call the police, Pshick stated: "Go ahead and call the police. They may give me a restraining order, but I'll be back." Pshick had left the premises by the time of the police's arrival, and was "pulling his van out of the driveway."

Pshick, who also testified at the hearing, admitted that he had called Bailey "a couple of times," and he stated that he was trying to get back together with her when he appeared on February 26. Pshick described his meeting with Bailey at the bar earlier in February as more friendly than did Bailey, and stated that it had been occasioned by his offer to return photos to her, which he did not do. However, he stated that he did not believe as a result of that meeting that the two had reconciled.

Pshick testified further that on February 26, when he went to the front door the second time but received no answer, he heard the stereo on "loud" so he assumed somebody was home. He then went to Bailey's back door, and after looking in, he "was very, very upset because [he] saw Stephanie and Keith in their pajamas, so it didn't take me long to put two and two together." He denied knowing that Bailey had a new boyfriend.

Pshick stated that he had approached the back door two times on the morning of February 26. Although he agreed that he had tried to open the door, he testified that he did not bang on it, nor did he threaten Bailey either verbally or physically. Pshick claimed that he had left on his own, without being forced to do so.

With respect to the telephone message of February 25, the following exchange occurred between Pshick and Bailey's attorney:

Q And you heard the testimony earlier that on February 25th, the day before the - Friday night - that Ms. Bailey had received a voice message from you saying, in effect, "I'm sorry. I won't bother you anymore." Did you make that call?

A Yes.

Q And did you say that on the message?

A That I don't recall.

Q But you have no reason to think that you did not say that.

A Yes.

Q And notwithstanding a message that says, I won't bother you anymore and I'm sorry, you - you got up early Saturday morning and drove to her home in Morristown. Is that correct?

A Yes.

Following the testimonial hearing in the matter, the trial court, crediting Bailey's and Groco's testimony, found Pshick's actions to constitute harassment and entered a final restraining order against him pursuant to N.J.S.A. 2C:25-19a(13) and 2C:25-29.

II.

The essence of Pshick's argument on appeal is that the evidence fails to support a claim of harassment or the intent to harass sufficient to support the entry of a final restraining order pursuant to N.J.S.A. 2C:33-4 (harassment), 2C:25-19a(13) (domestic violence) and 2C:25-29 (final restraining order). We disagree, finding the court's determination that the conduct constituted harassment sufficient to warrant final restraints to have been supported by adequate credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co of Am., 65 N.J. 474, 483-84 (1974); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998).

In reaching this conclusion, we find that Pshick's failure to refute evidence of his admission that he had been bothering Bailey and assurance that he would stop doing so, contained in the telephone message of February 25, together with his conduct in then ringing Bailey's doorbell at an inconvenient hour on Saturday morning, thereafter returning to her house and attempting to enter, threatening Groco, and stating that regardless of the entry of a restraining order, he would be back, constituted purposeful harassment sufficient to meet the elements of N.J.S.A. 2C:33-4a and c; State v. Reyes, 172 N.J. 154, 165 (2002); State v. J.T., 294 N.J. Super. 540, 544-45 (App. Div 1996).

We further find that Pshick's conduct was sufficient to warrant the entry of a final restraining order. In that regard, the statute requires that a court's consideration encompass factors such as any previous history of domestic violence between the parties, including any threats, harassment and physical abuse, and the existence of any immediate danger to person or property. N.J.S.A. 2C:25-29a(1) and (2). "Although a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis." Cesare, supra, 154 N.J. at 402.

In the present case, there is an admitted history of harassment and alarming conduct that Pshick claimed would stop, but did not. Although that harassment did not, with rare exception, include violence or threats of violence, contrary to Pshick's position on appeal, evidence of violence is not required. If it were, harassment could not form the basis for the entry of a final restraining order, yet it can. N.J.S.A. 2C:25-19a(13); Cesare, supra, 154 N.J. at 402 (basing action upon terroristic threats and harassment); id. at 404-05 (discussing harassment component); id. at 408 (noting that the incident leading to the issuance of a temporary restraining order did not involve use of physical violence, a weapon or threats); see also Peterson v. Peterson, 374 N.J. Super. 116 (App. Div 2005) (recognizing harassment as a basis for entry of a final restraining order). It is the "entire relationship between the parties" that must be considered in making a determination whether a final restraining order should be entered. Cesare, supra, 154 N.J. at 405.

In this case, the trial court did not find that Pshick's conduct constituted merely that of a disappointed suitor seeking reconciliation, as in Sweeney v. Honachefsky, 313 N.J. Super. 443, 448 (App. Div. 1998). The court stated: "I find that [Pshick] knew that [Bailey] was seeing somebody, and he became annoyed." At that point, according to the court. Pshick "step[ped] over the line," by going from the front to the back of Bailey's home, trying to get in, and thereby purposefully causing Bailey alarm.

As the court found:

[W]hen we look at the totality of the circumstances here, [Pshick's conduct] would be considered harassment; that his conduct was such that it was - his communications, by his physical actions and his words would, certainly, cause annoyance, upset and - and alarm to the plaintiff.

This conduct, when combined with a history of a prior refusal to leave the premises requiring police intervention, the court found, constituted a sufficient basis for the entry of a final restraining order. We find no ground for disturbing that conclusion, particularly when Pshick's unrebutted "bothering" of Bailey, evidence of Bailey's evident alarm and Pshick's threats to continue his conduct are considered.

We recognize the serious consequences attendant upon the entry of a domestic violence restraining order. Peterson, supra, 374 N.J. Super. at 124. However, the present case lacks the due process difficulties of Peterson. Here, ample opportunity was given to the parties for examination and cross-examination of witnesses, which occurred in an appropriate fashion; the court made the necessary credibility determinations and findings of fact; and its conclusions were supported by the evidence. This is an instance in which the court found entry of a final restraining order was justified as a means to protect Bailey from further harassment and alarm. We find no manifest denial of justice to have occurred as a result.

 
The order of the court is affirmed.

(continued)

(continued)

11

A-4090-04T2

RECORD IMPOUNDED

January 30, 2006