FRANKIE SANTIAGO v. MERLY CASTRO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2248-06T12248-06T1

FRANKIE SANTIAGO,

Plaintiff-Respondent,

v.

MERLY CASTRO,

Defendant-Appellant.

_____________________________________________

 

Argued October 16, 2007 - Decided

Before Judges Fuentes and Chambers.

On appeal from Superior Court of New Jersey, Chancery Division, Passaic County, FV-16-0762-07.

Erin L. Smith argued the cause for appellant (Northeast New Jersey Legal Services, attorneys; Ms. Smith, on the brief).

Respondent has not filed a brief.

PER CURIAM

In this domestic violence case, defendant appeals from the final restraining order entered against her. She contends a single vague threat under the circumstances here cannot constitute domestic violence under the statute. We agree and reverse.

Plaintiff, Frankie Santiago, and defendant, Merly Castro, had a dating relationship for six years and had one daughter together who was three years old at the time of the hearing. Plaintiff ended the relationship in June, 2006, and compelled defendant to leave his home. Each filed a domestic violence complaint against the other. Specifically, on September 25, 2006, defendant filed a domestic violence complaint against plaintiff. She alleged that he had made harassing and threatening phone calls to her, and she obtained a temporary restraining order against plaintiff. On October 11, 2006, plaintiff filed a domestic violence complaint against defendant. He alleged that she had made terroristic threats to him, and he obtained a temporary restraining order against her.

A hearing was held on both complaints on November 9, 2006, and the court granted both applications, entering restraining orders against both parties. In addition, the trial court addressed support and visitation issues, and those provisions have not been appealed. Further, plaintiff has not appealed from the restraining order entered against him. As a result, this appeal focuses solely on the restraining order entered in favor of plaintiff and against defendant.

The scope of our review is limited. Cesare v. Cesare, 154 N.J. 394, 412 (1998). The trial court's findings are binding upon us provided they are supported by "adequate, substantial, credible evidence." Ibid. "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 394, 484 (1974)).

The Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, sets forth a mechanism whereby victims of domestic violence may obtain domestic violence restraining orders against the wrongdoers, among other relief. N.J.S.A. 2C:25-29. Since plaintiff and defendant formerly resided together, they both are entitled to the protections of the act. N.J.S.A. 2C:25-19(d). In an application for a domestic violence restraining order, a plaintiff must establish by a preponderance of the evidence that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred, and that a domestic violence restraining order is necessary in order to protect the plaintiff from immediate danger or to prevent further abuse. Silver v. Silver, 387 N.J. Super. 112, 125-127 (App. Div. 2006).

Here plaintiff obtained a restraining order against the defendant on the basis that she had threatened him in a telephone call. He testified that on October 10, 2006, he received a call in which defendant said "my boyfriend is going to get you." He testified that he was fearful due to that call. While he stated in a general way that defendant had harassed him after they separated and that she had threatened to make unfounded domestic violence complaints when they were together, the record is devoid of any contention or evidence that defendant had ever physically struck or threatened plaintiff with violence. Indeed, the record indicates instances where plaintiff had struck defendant.

An act of "domestic violence" includes the making of terroristic threats as set forth in N.J.S.A. 2C, 12-3, against a person protected by the act. N.J.S.A. 2C:25-19(a)(3). A terroristic threat is defined as:

a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience. . . .

 
b. A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

[N.J.S.A. 2C:12-3.]

To prove terroristic threats the plaintiff must show that the defendant did in fact threaten plaintiff and intended to do so and that "a reasonable person would have believed the threat." Cesare v. Cesare, supra, 154 N.J. at 402. However, the court must consider the circumstances and background, including the history of abuse between the parties in evaluating whether it was reasonable for the plaintiff to believe the threat. Id. at 403.

In this case, plaintiff testified to only one instance of a threat from defendant, namely that in a telephone conversation she said "my boyfriend is going to get you." This threat is vague. No specific crime is threatened, nor is violence necessarily threatened. The record does not indicate who defendant's boyfriend is or that he is a violent individual. Indeed, defendant had denied having a boyfriend. Nor is there a history of violence or threats of violence by defendant toward plaintiff.

The facts in this case are akin to those confronting the court in Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995). There the husband said to his wife in anger, "I'll bury you" in the context of a relationship where there was no history of domestic violence but rather the parties were in the midst of a divorce. Id. at 49. The court found that the statement did not constitute domestic violence within the meaning of the statute. Id. at 55-56. We recognize that a "one sufficiently egregious action" may constitute domestic violence. Silver v. Silver, supra, 387 N.J. Super. at 128 (citing Cesare v. Cesare, supra, 154 N.J. at 402). However, the statement made by defendant here was general and vague, and in the context of the relationship of the parties, it does not rise to the level of domestic violence.

Reversed.

 
 

 

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6

A-2248-06T1

RECORD IMPOUNDED

November 8, 2007