M.L v. J.J

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3986-09T3

M.L.,

Plaintiff-Respondent,

v.

J.J.,

Defendant-Appellant.

________________________________________________________________

March 9, 2011

Submitted December 14, 2010 - Decided

Before Judges Yannotti and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-1172-10.

Lesnevich & Marzano-Lesnevich, LLC, attorneys for appellant (Madeline Marzano-Lesnevich, of counsel; Jeffrey B. Hodge and Michael R. Mildner, on the briefs).

Bressler, Amery & Ross, P.C., attorneys for respondent (David H. Pikus, of counsel and on the brief).

PER CURIAM

Defendant appeals from the entry of a final restraining order against him based upon the predicate act of harassment. We affirm.

Both parties were employed in the financial industry at the time of the final restraining order hearing. Plaintiff was employed at Merrill Lynch and defendant was self-employed, working from their home. The parties were not married but were involved in a relationship for fifteen years and had three children together. Starting in 2002, their relationship deteriorated to an on and off status but they continued to live in the same house with the children. As of 2008, defendant had moved into the basement. Eventually, they became engaged in a custody battle over the children as part of their separation process. In March 2010, plaintiff filed a domestic violence civil complaint and request for a temporary restraining order, alleging predicate acts of harassment and stalking.

The following facts are undisputed. Defendant hired a private investigator and put a tracking device on plaintiff's car in August 2008. In February 2009, he sent an email to their son's teacher, with a copy to plaintiff, in which he criticized plaintiff's parenting skills and mental stability and attributed their son's behavioral issue to her "mov[ing] out of the house to pursue her relationship with her married supervisor at Merrill Lynch[.]" Defendant told plaintiff that he had contacted the human resources department at her employer to make them aware of her relationship with a supervisor. Defendant also spoke to a reporter from the New York Post. According to the published article, defendant was the source for the following statements: that plaintiff was "having a ruinous affair with a top banking executive," and tying up defendant's assets needed for lawyers in a legal battle with the Securities and Exchange Commission; that defendant "lost touch with [plaintiff] when she left Kidder, but discovered her years later working as a 'lap dancer' at a Long Island City club"; that he paid for her MBA and helped her get a job at the former Donaldson, Lufkin & Jenrette; that she began an ongoing affair with a supervisor soon after joining Merrill Lynch in 2007; that "[plaintiff], who earns $600,000 a year at Merrill's global investment group, endangers their young children with the affair with the banker who . . . recently left Merrill for Barclays"; that "[plaintiff] squandered $225,000 of family assets to lease a $2595-a-month love nest in Battery Park, . . . showered her lover with expensive gifts. . . . [and] picked up tabs for overnight trysts at resorts and casinos[.]"

The parties provided different contexts for this conduct in their testimony at the hearing on plaintiff's application for a final restraining order.

Plaintiff testified that defendant sent her a series of abusive text and email messages and threatened to make her affair public. She testified regarding a text message received in September 2009 in which defendant stated, "As you know, once this is filed before the court, all becomes public information. Families are going to be destroyed, careers ruined." She testified that, defendant specifically threatened to disclose her personal business to people at Merrill Lynch and that she overheard him saying that he should have used the media to a fuller extent to back her into a corner in the custody battle. Plaintiff also testified that she overheard defendant on the phone, telling someone that he should not tell plaintiff that he was tracking her as it could constitute domestic violence. Defendant testified that his purpose in placing the tracking device on plaintiff's car was for the safety of the children. He stated that plaintiff was unable to effectively respond to one child's peanut allergy and that she had left the children in a locked car while she went shopping. However, he admitted using the tracking device when the children were not with plaintiff in her car. Defendant further testified that his purpose in sending the detailed email to their son's second grade teacher was to "try to get the teacher to be patient" with their son, and not to harass plaintiff. Defendant acknowledged that "the issues with the press" began in 2008 and he had discussed this with plaintiff. As for the disclosures to the New York Post reporter, defendant stated that he told the reporter about plaintiff's affair "[b]ecause it was the truth" but admitted that plaintiff's business associates were readers of the New York Post.

The trial court found plaintiff to be credible and discredited defendant's account, finding some of his explanations to be "incredulous." Although the court found insufficient evidence to support a finding of stalking, the court concluded that plaintiff had demonstrated, by a preponderance of the evidence, that defendant committed the predicate act of harassment, and further found adequate grounds for the entry of a final restraining order against defendant. In this appeal, defendant challenges the court's findings of harassment and its conclusion that a final restraining order was necessary.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court[,]" N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104. The factual findings of the family court here are amply supported by the credible evidence in the record.

In considering a domestic violence complaint, the trial court must address two inquiries: The first question is "whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). The acts complained of must "be evaluated in light of the previous history of violence between the parties[,]" Cesare, supra, 154 N.J. at 402, considering "the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property." Silver, supra, 387 N.J. Super. at 126 (citing N.J.S.A. 2C:25-29a(1) and (2)).

The commission of an enumerated predicate act of domestic violence does not dispose of the question whether a domestic violence restraining order should be entered. Id. at 126-27. Instead, the court must make a second inquiry, "whether the court should enter a restraining order that provides protection for the victim." Id. at 126.

The trial court reviewed the evidence in detail and made specific findings on the credibility of the parties. Specifically, the court found plaintiff to be credible and found that defendant's testimony regarding his purpose was not worthy of belief. Although the court found the evidence insufficient to support a finding that the predicate act of stalking had been committed, the court found defendant's stated reason for putting the tracking device on plaintiff's car to be "incredulous."

In reviewing the parties' prior history, the court noted defendant's threats about making their personal affairs public, his stated regret that he had not used the media to a greater extent to gain an advantage over plaintiff in the custody battle, and specific threats to expose her affair to the human resources department at Merill Lynch. Addressing the email to their child's teacher, the court explicitly rejected defendant's stated reason for the email. The court found it "extremely incredible" that defendant would believe information regarding plaintiff's affair with a married supervisor, and the information and detail provided, would be necessary to address the legitimate needs regarding their son. The court stated:

Some of the details this Court would glean were clearly intended to embarrass. [Plaintiff was] copied on the email. To annoy her. Whether or not it's to intimidate relative to a custody battle, this is back in February of '09, but clearly I would find a purpose to annoy. [I] could not glean any other purpose in setting forth that type of detail.

The court noted the texts and emails in which defendant continually threatened to go public with information that culminated in the New York Post article in which defendant is quoted. The article coincidentally was published one day after a court hearing. The court observed:

And what he had been threatening all along, to go public in an article . . . happens to be published . . . on February 24th. He's in Court February 23rd. There happens to be a Court reporter. And what does the article do? It discloses that which was private . . . personal and otherwise embarrassing to [plaintiff], scandalous, and perhaps intimidating in the context of I'm going public if you continue with this custody matter. Those are threats that [plaintiff] had indicated had been uttered in the interim between the e-mails and this filing.

We accord substantial deference to such credibility findings, made based upon the trial court's opportunity to observe the witnesses and their demeanor. Cesare, supra, 154 N.J. at 412.

In addition, the court found the email to the teacher to be "indicative of the mentality in disclosing this information" and that, coupled with the on-going surveillance that plaintiff felt was an invasion of privacy, the disclosure to the New York Post, and the history of emails, texts, and threats, the evidence cumulatively established a purpose to alarm, annoy, or intimidate. We agree. Defendant threatened and then embarked upon a pattern of divulging private and personally embarrassing information to plaintiff's child's teacher, to her employer and, finally, to the wider public. The testimony included statements by him regarding ruining careers and that linked his conduct to a desire to essentially blackmail her in the custody battle. His purpose to alarm, annoy, and intimidate her was evident. See N.J.S.A. 2C:33-4(c); State v. Hoffman, 149 N.J 564, 580 (1997).

Having found the predicate act of harassment was proven, the court proceeded to review the six factors set forth in N.J.S.A. 2C:25-28, and concluded that a final restraining order was appropriate. We are satisfied that the court's conclusions regarding the finding of harassment and the appropriateness of a final restraining order here are amply supported by the credible evidence.

A