J.M v. L.W

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1907-11T4

J.M.,

Plaintiff-Respondent,

v.

L.W.,

Defendant-Appellant.

_________________________________________

July 9, 2013

Submitted January 23, 2013 - Decided

Before Judges Waugh and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-1565-12.

Scott T. Schweiger, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant L.W. appeals from a final restraining order (FRO) entered against him by the Family Part under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The trial court's decision was based on a domestic violence complaint filed by plaintiff J.M., alleging harassment, N.J.S.A. 2C:33-4, as the predicate offense for the injunctive relief sought.

On appeal, defendant challenges both the trial judge's findings of a predicate act and the need for a final restraining order. We disagree and affirm.

On December 7, 2011, the trial judge conducted a hearing at which defendant was represented by counsel and J.M. appeared without counsel. The judge asked J.M. to explain the facts leading up to her request for a restraining order. J.M. stated that she and defendant had been in a long term relationship and had lived together for almost three years when defendant terminated their relationship in August 2011. Thereafter the parties discussed getting back together. The judge asked if there were any other prior episodes of pushing or shoving other than those disclosed in her complaint. J.M. responded that there were a couple of occasions during their three year live-in relationship that defendant shoved her. J.M. was not harmed and did not report the incidents to the police.

J.M. then described the incidents that led up to her filing a domestic violence complaint against defendant, and the basis for her request for an FRO. J.M. was trying to avoid defendant because he had learned several days before that J.M. was dating another individual. J.M. had told defendant that if he had anything that was hers, he could leave it at her cousin's house which is located close to his house. On November 25, 2011, defendant surprised J.M. in the parking lot of Target, where she was employed, by showing up and giving her mail that had been delivered to his house. J.M. stated that this was the third time that day that defendant came to her place of work.

The following day, on November 26, 2011, defendant again went to Target. J.M. explained that defendant had text messaged her earlier in the day saying that she had to face him sooner or later because she had mail at his house that she had to retrieve. J.M. first noticed defendant as she was walking in the Target parking lot, she quickly walked and then ran to her car. Defendant called her names, "bitch" and "whore," and said that he "wasn't going to go away that easily." Although defendant touched her, he was unable to detain J.M. from getting into her car and locking her doors. Defendant then banged on J.M.'s car window with his open hand in an attempt to get her attention. During this time J.M. was on the phone trying to contact Target security in an attempt to get someone to come outside. J.M. had previously informed her employer about her situation with defendant, and security said they would intervene if called. After leaving the Target parking lot, and going to a place of business, J.M. called the police to inform them of defendant's actions. She then filed the complaint which resulted in the order now appealed.

Defendant also testified at trial. Defendant stated that on November 26, he went to Target with his brother because his brother wanted to buy a t-shirt. Defendant happened to see J.M. and decided he should stop and try to talk to her. Defendant asked J.M. if they could talk and when J.M. continued towards her car he continued to try and speak with her. When J.M. got into her car, defendant tried to talk to her through her car window. Defendant testified that he told J.M. she was a terrible person. However, defendant denied banging on J.M.'s car window and stating "I'm not going to go away that easily." Defendant further testified that he had not encountered any problems when he had given J.M. her mail, and that she never told him to leave her alone.

The trial judge found J.M.'s testimony to be credible because she "testified in a manner that was very matter of fact" and was able to covey a degree of concern. The judge also noted that J.M.'s concern was more evident during cross-examination than direct examination, when one would expect a witness to pile on the defendant. Additionally, the judge found plaintiff's testimony to be corroborated by events that both preceded and followed the incident. This included the following facts: J.M. had already talked to her employers prior to the incident and informed them she might need protection; J.M. had blocked her phone number from defendant earlier that day; J.M. did not drive away but was on the phone with security in an attempt to get them to come out; and she spoke with several people regarding what she should do prior to notifying the police. The judge then determined that "[i]f the event had occurred in the manner in which the defendant described, . . . the Court does not believe that the other events that she testified to, which I have credited, would have occurred." The trial judge found that the evidence provided the basis for the predicate offense of harassment, and the conduct necessitated the entry of an FRO.

Trial court fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)); Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010). The trial court sees witnesses firsthand and has a "feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (internal quotation marks omitted). We give additional deference to factual findings of the family courts because they have special expertise, ibid., and we do not second-guess the exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

When determining whether to grant an FRO pursuant to the Act, the judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006). "First, the judge must determine 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:25-19(a) has occurred." Id. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.

Here, J.M. alleged that defendant engaged in the predicate act of harassment, which provides in relevant part that

a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm[.]

. . .

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4(a), (c).]

Defendant went to Target to deliver J.M.'s mail even though he knew she wanted the mail delivered to her cousin's house, as the judge found, "to force her to have contact with him." Then on another occasion, defendant alarmed J.M. with his verbal statements and by physically banging on her car window. Here, the judge found the predicate act of harassment, specifically that defendant "with purpose to harass another" engaged in offensive communications in a "manner likely to cause annoyance and alarm." N.J.S.A. 2C:33-4(a) and (c). "A finding of a purpose to harass may be inferred from the evidence presented." State v. Hoffman, 149 N.J. 564, 577 (1997) (citing State v. McDougald, 120 N.J. 523, 566-67 (1990)). A judge may find prohibited conduct from an ambiguous incident based upon the parties' past history of violence. Cesare, supra, 154 N.J. at 402. We see no reason to disturb the judge's finding that defendant's actions constituted a predicate act of harassment.

Next, there must also be a finding that "'relief is necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)); L.M.F. v. J.A.F., 421 N.J. Super. 523, 536 (App. Div. 2011). It is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The determination of whether such an order should be issued must be made "in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment[,] and physical abuse and in light of whether immediate danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29(a)(1) and (2)); Peranio, supra, 280 N.J. Super. at 54. Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127.

Here, the trial judge heard the testimony, listened to and observed the witnesses, and then thoroughly articulated his findings. He found that an FRO was necessary due to J.M.'s concern that defendant would harass her again, as well as defendant's previous conduct and the fact that he stated he would not go away that easily. We will not second-guess a Family Part judge's fact-findings. Hand, supra, 391 N.J. Super. at 111. If adequately supported by the record, we must defer to the findings of the trial judge, who is in a much better position to determine whether the evidence presented proved both the predicate offense and the need for a restraining order. Cesare, supra, 154 N.J. at 413.

Applying the circumscribed review standard here, we accept the trial court's findings, as they are supported by substantial credible evidence in the record. Accordingly, we find no basis to disturb the judge's conclusion in accordance with Silver, supra, 387 N.J. Super. at 125-26, that defendant committed the predicate domestic violence act of harassment and that plaintiff needed the protection of an FRO.

Affirmed.