CHRISTINA SALAMANCA v. ASHRAF ABOUELNIL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5124-04T15124-04T1

CHRISTINA SALAMANCA,

Plaintiff-Respondent,

v.

ASHRAF ABOUELNIL,

Defendant-Appellant.

_____________________________

 

Submitted December 20, 2005 - Decided February 9, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Essex County, FV-07-2097-05.

Garrubbo and Capece, attorneys for

respondent (Frederick A. D'Arcangelo,

on the brief).

Respondent Salamanca did not file a brief.

PER CURIAM

After a bench trial, Judge Hayden entered a Final Restraining Order pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The Order was based on a finding that defendant had harassed plaintiff by making phone calls to her at her workplace after notification that the calls were not welcome. On appeal, defendant claims that, even if accepted, the testimony of plaintiff did not establish the elements of harassment, N.J.S.A. 2C:33-4(a), and that the Final Restraining Order was, therefore, entered improperly. We disagree and affirm.

The parties were involved in a dating relationship for several months in the summer of 2004. At some time in September or October of that year, plaintiff decided to terminate the relationship and told defendant that his advances were no longer welcome. Nevertheless, plaintiff testified, defendant continued to contact her and to drive by her place of employment.

She testified further that she received numerous calls after she had directed defendant not to speak with her. Specifically, on January 2, 2005, she received three phone calls from defendant at her place of employment, where she was charged with receiving incoming calls. In each case, she hung up once she realized that defendant had placed the call. Defendant admitted making three calls to plaintiff at her work on January 2 and 3, 2005. He admitted that on each occasion, plaintiff hung up but denied that she had told him not to call.

The trial court found the plaintiff's testimony credible. Specifically, the court reviewed the evidence and made the following findings:

The defendant here said that they had a dating relationship, that there was no problem when he was in prison. They had a dating relationship, they saw each other and spoke to each other over the telephone.

And only some time around Christmas, after they had wished each other happy Christmas, sometime after that, the -- plaintiff told him that she didn't want to see him. And that, shortly thereafter, . . . she hung up on him a few times and then he stopped calling.

The plaintiff says that she let him know

. . . in September or October that she . . . didn't want to see him, that she didn't want to date him. And then she testified that not until sometime in December, . . . he began making calls, he would come by her work, and . . . she start[ed] to become very alarmed by his behavior.

And then she testified to numerous calls that were . . . blocked, numerous ones that were -- came from other numbers.

And she also testified that she gave him specific notice that she did not want to hear from him, that she wanted him to stop and that she was going to the police. She gave him that notice on the 18th or 19th of December.

And then after that, she received numerous phone calls to her -- after that time. And that these phone calls caused alarm and annoyance and put her in fear.

I have to make a credibility determination because the facts are so contradictory. After having an opportunity to observe the witnesses and consider the evidence, as well as consider the demeanor of both parties, I find the plaintiff's testimony to be more credible than the defendant's testimony.

Therefore, I find that the plaintiff -- after telling someone in the fall that she did not want to see him, received, beginning in December, numerous phone calls, two visits, including one where she told him that he must leave her alone or she will go to the police.

And then even after that, there [were] several phone contacts at her work. And I find that these phone calls were harassment. In that I find that these, after having knowledge that contact would harass, that he made phone calls in a manner that was causing alarm or annoyance.

Therefore, I find that the plaintiff had demonstrated that the defendant committed the act of harassment, which is an act of domestic violence.

Those findings, made by a Family Part judge, are entitled to special deference. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Because they are supported by adequate, substantial, and credible evidence, they may not be disturbed on appeal.

Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

We also believe the judge's conclusion that this action constituted domestic violence was appropriate. Harassment, N.J.S.A. 2C:33-4, is an act of domestic violence. N.J.S.A. 2C:25-19(a)(13). A communication made "at extremely inconvenient hours . . . or in any other manner likely to cause annoyance or alarm; . . ." constitutes harassment. N.J.S.A. 2C:33-4(a). We are well satisfied that communications to an unwilling recipient, while she is at work and after she has given notice that the communications are unwelcome, are made at extremely inconvenient hours. They interfere with plaintiff's ability to fulfill her employment responsibilities and constitute an invasion of plaintiff's expectation of privacy. See State v. Hoffman, 149 N.J. 564, 583 (1997). We agree with the judge's implied determination that the placement of those calls, under the circumstances presented here, cannot be attributed to any intent other than to cause annoyance. id. at 577.

We do not take this case to be similar to Bresocnik v. Gallegos, 367 N.J. Super. 178 (App. Div. 2004). That case involved a restraining order issued after one communication delivered to plaintiff's workplace without any prior notice that communications would be unwelcome. We reversed, finding that the record would not support a conclusion that the communicator intended to harass his ex-wife.

Here there was prior notice to defendant that plaintiff did not want his calls and, despite that notice, defendant continued his unwelcome communications. Defendant's behavior, as found by the trial judge on sufficient credible evidence, adequately supports a finding of domestic violence by harassment. See Pazienza v. Camarata, 381 N.J. Super. 173 (App. Div. 2005).

 
Affirmed.

(continued)

(continued)

6

A-5124-04T1

RECORD IMPOUNDED

February 9, 2006