T.S. v. R.H., JR

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4050-10T3

T.S.,

Plaintiff-Respondent,

v.

R.H., JR.,

Defendant-Appellant.

________________________________________________________________

April 15, 2013

 

Submitted October 22, 2012 - Decided

 

Before Judges Graves and Espinosa.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-0436-11.

 

R.H., Jr., appellant pro se.

 

Respondent T.S. has not filed a brief.

 

PER CURIAM

Defendant appeals from an order that denied his application to vacate a final restraining order entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.

Plaintiff filed a complaint seeking a temporary restraining order (TRO). She alleged that defendant had committed the predicate offenses of criminal mischief, N.J.S.A. 2C:17-3; harassment, N.J.S.A. 2C:33-4; and stalking, N.J.S.A. 2C:12-10(a). The TRO was issued and, on August 26, 2010, a hearing was conducted on plaintiff's application for a final restraining order (FRO).

Plaintiff described defendant as her ex-boyfriend and stated they had been in a relationship for five years and had lived together. She said they broke up in September and October of 2009 and that the last time they were intimate was in May 2009.

Plaintiff testified that, on the evening of August 19, 2010, she went to the third floor of her house where she could see the whole backyard because her dog was barking. She saw defendant jumping over the fence, go around to her porch and unscrew the light, making the yard dark. He then went to the side of her house where there was a second light. It was approximately 12:17 a.m. Plaintiff called the police. Defendant was arrested near her front porch and car for criminal trespass.1 Plaintiff testified that, on the following morning, she saw that the entire length of her car had been "keyed."

Plaintiff also testified that defendant used her personal information to create a Facebook page that purported to be hers. She described a history of problems. Approximately three weeks earlier, defendant called and told her he broke into her shed and took two coolers and beach things that belonged to her. When she questioned him about it, defendant told her he took the items to "make [her] mad." She testified,

[defendant's] been in my yard numerous times. And he sits in a chair and he watches to see who comes in and out of my house. Because he always told me, if he couldn't have me, no one else can and he was going to make my life miserable.

Plaintiff also testified that, in July, defendant threw rocks at her window at about 2:00 a.m.; police found him around the corner from her home. She stated that defendant had hit her and choked her in the past. She also testified that defendant had sexually assaulted her nine-year-old daughter and threatened that he would kill plaintiff if her daughter ever told anybody about the assault. Plaintiff testified she had prior restraining orders against defendant but had dropped them because "[she] was frightened and [they] needed to communicate."

Defendant, who was incarcerated at the time, acknowledged that he and plaintiff "had a rough relationship" and that he was removed from her house because he "was supposed to have touched her daughter[,]" which he denied. Although defendant said the relationship "stopped right there," he claimed they had been "running around, sneaking around with each other the whole time."

Defendant admitted jumping the fence to go into her backyard on the night in question but said that was the way he came to her house because plaintiff was sneaking him into her house. Defendant also admitted getting on a chair and unscrewing the light bulb to turn it off. Defendant said he had been giving plaintiff money and went to her house that evening just to leave $100 for her under the mat. He stated that he left the money but, when questioned by the police after his arrest, did not want to divulge its location. Defendant said he returned to retrieve the money after he was released from police custody two hours later.

Upon further questioning by the judge, plaintiff admitted that she had called defendant to tell him she was pregnant, but denied asking him to come back to her. Plaintiff stated, "he's stalking me. That's why he's always around. That's why he takes pictures everywhere I'm at. He's got pictures of me at work -- down -- everywhere. . . . He stalks me. Everywhere I go, he's there." Plaintiff also refuted defendant's version of events, stating that after he was arrested, he told the police he was at her house to leave money and that the money was in the back somewhere. The police searched him and "looked everywhere, there was no money." Plaintiff said she did not even think there was a mat.

It was undisputed that plaintiff was a person protected under the PDVA. See N.J.S.A. 2C:25-19(d). Therefore, the judge's task here was two-fold:

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:25-19a has occurred. . . . [W]hen determining whether a restraining order should be issued based on an act of assault . . . the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property.

 

. . . .

 

The second inquiry . . . is whether the court should enter a restraining order that provides protection for the victim.

 

[Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006) (internal citations omitted).]

Following the first hearing, the trial judge made the preliminary finding that plaintiff was a protected person under the PDVA. The judge then referred to the dual inquiry required by Silver and proceeded to set forth her findings as to credibility. The versions of events of the relevant evening given by plaintiff and defendant differed sharply. Although there were inconsistencies in plaintiff's testimony, the trial judge found her a more credible witness than defendant. The judge reviewed the demeanor of the parties, noting that the plaintiff had been crying and so upset that the judge asked an advocate to sit with her. The judge said defendant's "story does not add up." She noted that his testimony was inconsistent and at times, implausible.

The court addressed defendant directly and provided the following findings regarding the predicate acts alleged:

There is no doubt in the Court's mind whatsoever that you committed this criminal mischief on her vehicle. And extensive, quite frankly, with it being all over the vehicle. Here she has a car. She's got -- she's hard working. She's got her family. She's trying to make a life. And what do you do? You take the car that she has and you just scratch it beyond belief. The scratches are unbelievable.

 

And I appreciated her, what I found, credible testimony. There were a couple scratches on it. But it appears to me that the car is being well taken care of. And now what do you do? Take something nice, something that happens to be outside, something you can get to, and you've just got to scratch it up. And the kicker is, it's not in one panel. It's all over the car. It's just really mean, really mean.

 

So, I am very satisfied that you trespassed on property that you were absolutely not welcome on. . . . I am satisfied that you committed criminal mischief against her property. I'm also satisfied that you had no business turning her security system off. That's disabling what is giving her a comfort level.

 

I am also satisfied that she is being stalked by you, because she's terrorized at this point. . . .

 

Now, having said all that, that is more than ample evidence -- and, again, if nothing's true, . . . you told me yourself you went back to the house when you were not free to do so. So there's no question in the Court's mind that you have a predicate act; that the Court is satisfied as to her testimony with regard to prior acts; that at least on one occasion you put your hands on her throat; that you have assaulted her in the past, choked her; that you've threatened to kill her in the past.

 

The judge found the following regarding the need for a final restraining order:

Anyway, so the Court is more than satisfied that the plaintiff has met her burden . . . that there is a predicate act, that there's a prior history; and, without a doubt, in light of the fact that even after being arrested . . . the defendant goes right back to the house. Where does he go? Right back.

 

So there's no doubt in the Court's mind that the plaintiff is in imminent danger and needs further -- protection from further abuse.

The trial judge stated she was satisfied defendant had committed criminal mischief and had stalked plaintiff.2 A final restraining order was entered.

Defendant made a motion for a new trial, arguing that he had been hampered in presenting a defense due to his incarceration. The motion was granted and further testimony was taken on December 6, 2011, and January 31, 2012.

The thrust of the defense was that plaintiff and defendant had continued their relationship in secret after defendant was removed from her home and even after there was an allegation that he had sexually assaulted her daughter, and that plaintiff had been untruthful in stating otherwise. Defendant presented photographs to support his contention that plaintiff and he continued to see each other after their break-up.

Plaintiff conceded that defendant had been in her house at least twice and that she had wanted to keep their relationship a secret because she wanted to keep him separate from her children. She told him, "Let's just take it slow, start back as friends and see if we can build it back up." However, plaintiff testified, "he doesn't stop." If she did not answer her phone, "he'd freak out" and even if she was out with her children, "he would have a fit." She said he followed her to work and followed her home from work.

Once again, defendant admitted going to plaintiff's house on the evening in question, jumping the fence and unscrewing the light bulb. Defendant testified that when the police arrived, he was walking down the driveway to leave. He stated that plaintiff had texted him earlier in the evening to come. However, he also testified that, when the police arrived, plaintiff came out of her house and said, "He just won't stop coming back here."

Officer Charles Grays of the Asbury Park Police Department testified that he was dispatched to plaintiff's home and found defendant on the side of the house. Plaintiff told him that defendant was not supposed to be on the property and that she did not want him there. Plaintiff also told him that there had been a prior incident. Grays testified that, at defendant's request, he examined defendant's cell phone and saw a number of text messages from plaintiff in which she invited defendant to come to her house. Although he did not see any text from the evening of August 19, 2010 that invited defendant to plaintiff's house, he later agreed to dismiss the trespass charge against defendant as a result of the text messages. Grays confirmed that defendant told him he was at plaintiff's house to give her money. He also testified that, when defendant was released that night, he "strongly advised him[,] do not return to that residence or you will be arrested again." Defendant told Grays, "Officer[,] I will not return."

Defendant also called Dennis Blake, a retired Asbury Park police officer. Blake testified that plaintiff's ex-boyfriend, who had passed away, was one of his best friends and at his request, he looked out for plaintiff. Defendant elicited testimony from Blake that plaintiff had alleged defendant had keyed her vehicle in March 2010. However, Blake testified that plaintiff also accused defendant of keying her vehicle in August 2010. At that time, she said there were more markings on her car and showed Blake that it had been keyed "from the driver's side all the way around to the passenger's side."

Defendant's sister, Gail,3 testified that plaintiff told her in March 2010 that defendant had come to plaintiff's house, knocked out the security system, broke into her house and keyed her car. Gail also stated that plaintiff told her defendant was stalking her. A few days afterward, Gail observed defendant with plaintiff, getting out of her truck. She questioned why they would be together after plaintiff alleged defendant had touched her daughter and stated he was stalking and harassing her. Gail considered their relationship "an unhealthy situation[.]"

David Williams, who described himself as a "[r]eally close friend" of defendant, helped defendant move out of plaintiff's house. He testified that plaintiff and defendant were "together" after that and after the allegation was made regarding plaintiff's daughter.

Defendant's daughter testified that she and plaintiff did not get along. She also testified that she drove defendant to plaintiff's house twice and then picked him up in the early morning. She did not like how plaintiff treated her father.

Defendant's uncle lived with defendant and his parents in an apartment in Neptune in the summer of 2010. He testified that plaintiff had been at the apartment with defendant and stayed all night one night.

Defendant's mother, Christine, testified that two weeks prior to the incident in question, plaintiff told her she had given her Mazda to defendant as a gift. On cross-examination, she agreed that plaintiff had called her in the middle of the night and asked her to come get defendant because he was throwing rocks at her window. Christine got ready to leave but, before she left the house, she discovered that defendant was in her house. She also admitted that plaintiff asked her to come get defendant on another occasion because defendant was beating her. Christine admitted she saw marks on plaintiff and stated, "he's starting to act like his dad."

Plaintiff presented no additional witnesses. The court declined to accept written statements from her employer and daughter.

In her oral opinion, the judge incorporated her findings from the prior hearing and stated she was "satisfied that [] plaintiff [had] proven her case for her final restraining order[.]" The judge acknowledged that the testimony was murky regarding when the parties' relationship ended but found that plaintiff "was done" after it was alleged that defendant had assaulted her daughter. The judge found that, after that point, any time plaintiff engaged in a discussion with defendant, "she was more putting him off and didn't know how to handle it and was growing more and more fearful of his constant interaction and wanted it to -- needed it to stop."

The judge stated she was "satisfied that [plaintiff's car] was keyed[,]" noting that Blake, a witness called by defendant, corroborated plaintiff with regard to the prior condition of the car and as to how extensive the scratches were, all around the car, after the incident. The judge also noted Blake's testimony that plaintiff had said she was having problems with defendant, was tired of phone calls from defendant, and that she told him right away that she believed defendant was responsible for keying her car. The judge said the nature and extent of the damage to the car reflected a level of anger toward plaintiff and that she was "absolutely satisfied [defendant] did it."

The judge commented on the testimony from Gail, defendant's sister, that plaintiff's complaint of stalking conflicted with her observations of the parties out to dinner and at a hotel, incidents that plaintiff denied. The judge found plaintiff's version more credible but also found that her stalking complaint was corroborated by Gail's testimony.

The judge also referred to the testimony of Officer Grays that plaintiff had complained, "He just won't stop coming back here."

The judge stated,

I am satisfied that the plaintiff needs protection and the protection of a final restraining order, because without it the defendant keeps on coming.

 

And I am satisfied that, if I had no other testimony with regard to the car being keyed or anything like that or the prior -- or concerns, any kind of concerns, it can boil down simply to the fact that a credible witness, the plaintiff, testified to this Court that she was done with this relationship. She wanted it over.

 

The Court is satisfied that she did, based on her now beliefs that the defendant possibly sexually molested her minor daughter. To what extent, I don't know. I didn't get into any of it. I don't have a clue if it was something inappropriate, easily said, or to the far extreme the other way. I have no idea.

 

All that is concerning to the Court, though, is that in [plaintiff's] state of mind is something happened to her baby and that was the line in the sand and that [] was it.

As to the night in question, the judge said, "that night[,] he shows up, parks behind the house, leaps the fence. He's unwelcome. He's unexpected. He goes to the back [and turns off the light.]" The court rejected defendant's explanation that he was there to leave $100 under the mat and later returned to retrieve the money.

Once again, the judge did not state explicitly what predicate act(s) she found plaintiff had proven by a preponderance of the evidence. An order was entered on March 3, 2011, denying defendant's "application to deny a final restraining order" and stating that the FRO previously granted remained in full force and effect.

In his appeal, defendant argues that the court erred because he had shown "beyond reasonable doubt" that plaintiff's testimony was not credible regarding their secret, ongoing relationship and her allegations of fear and danger.

"In our review of a trial court's order entered following trial in a domestic violence matter, we grant substantial deference to the trial court's findings of fact and the legal conclusions based upon those findings." D.N. v. K.M., ____ N.J. Super. ____, _____ (App. Div. 2013) (slip. op. at 4-5); Cesare v. Cesare, 154 N.J. 394, 413 (1998). Our deference arises from a recognition of the "family courts' special jurisdiction and expertise in family matters," N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010), and the ability of Family Part judges "to assess evidence of domestic violence and determine whether a restraining order is necessary." D.N., supra, slip. op. at 5. We also pay substantial deference to the credibility determinations made by the trial judge. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009); State v. Barone, 147 N.J. 599, 615 (1997). 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." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

As noted, plaintiff alleged three different predicate acts in her application for a restraining order, criminal mischief, N.J.S.A. 2C:17-3; harassment, N.J.S.A. 2C:33-4; and stalking, N.J.S.A. 2C:12-10(b). Pursuant to Silver, the trial judge was required: first, to determine whether plaintiff had proven a predicate act by a preponderance of the evidence, and second, to determine whether a final restraining order was required to protect plaintiff. Silver, supra, 387 N.J. Super. at 125-27. Although the trial judge described in detail her assessment of the various witnesses' credibility and stated that plaintiff had "proven [her] case," and needed an order of protection, she did not identify the predicate act(s) she found were proven at the close of the second hearing. Because the judge incorporated the findings made at the prior hearing, we will review the order that is the subject of this appeal as an FRO based upon the predicate acts of criminal mischief and stalking.

N.J.S.A. 2C:12-10(b) provides:

A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.

 

N.J.S.A. 2C:12-10(a)(1) provides in pertinent part that a person has engaged in a "course of conduct" by, on two or more occasions,

maintaining a visual or physical proximity to a person; . . . following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person's property; [or] repeatedly committing harassment against a person . . . .

 

Plaintiff testified that defendant had been in her yard numerous times and that he sits in a chair and watches to see who comes in and out. She stated that his stated purpose for doing so was that he was going to make her life miserable because if he could not have her, no one else could. She testified that defendant followed her to and from work and that if she did not immediately respond to his telephone call, he would "freak out." Defendant's sister testified that plaintiff had complained to her that defendant had been stalking her. Even defendant testified that, when the police arrived on the night of August 19, plaintiff told them, "he just won't stop coming back here." This evidence was sufficient to establish the requisite course of conduct under the stalking statute.

In addition, the nature of defendant's conduct had to be such "that would cause a reasonable person to fear for his safety . . . or suffer other emotional distress." N.J.S.A. 2C:12-10(b). "Emotional distress" is defined as "significant mental suffering or distress." N.J.S.A. 2C:12-10(a)(3). The statute defines "[c]ause a reasonable person to fear" as "to cause fear which a reasonable victim, similarly situated, would have under the circumstances." N.J.S.A. 2C:12-10(a)(4).

The persistent and pervasive nature of defendant's conduct -- at plaintiff's home and workplace and even occurring in the middle of the night -- offered plaintiff no respite. Plaintiff testified that she dropped prior restraining orders against defendant in part because she was afraid. The trial judge, who had the opportunity to observe plaintiff as she testified, commented more than once on the emotional impact defendant's conduct had on her. The judge described plaintiff as "crying and upset" and "physically distraught." The judge stated that plaintiff's condition was such that she asked an advocate to sit next to her during the hearing. She also described plaintiff as "terrorized." This evidence was sufficient to establish that defendant's conduct "would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress." Giving appropriate deference to the trial judge's credibility findings, we conclude that plaintiff proved the predicate act of stalking by a preponderance of the evidence.

N.J.S.A. 2C:17-3(a) provides in pertinent part that "a person is guilty of criminal mischief if he: (1) [p]urposely or knowingly damages tangible property of another . . . or (2) [p]urposely, knowingly or recklessly tampers with tangible property of another so as to endanger person or property . . . ." It was undisputed that plaintiff's car bore extensive scratches. The trial judge called the scratches "unbelievable" and found that the extent of the damage revealed it was inflicted in anger. Based in part upon her credibility findings, the judge found that defendant had "keyed" plaintiff's car. This finding was further supported by plaintiff's testimony that she noticed her car was "keyed" on the morning after defendant's midnight visit to her home. There was, therefore, proof by a preponderance of the evidence that defendant committed the predicate act of criminal mischief.

We are further satisfied that the trial judge's conclusion that an FRO was necessary "to protect [plaintiff] from an immediate danger or to prevent further abuse" was amply supported by the record. Silver, supra, 387 N.J. Super. at 127. Because the evidence supported the issuance of an FRO based upon the predicate acts of stalking and criminal mischief, we conclude that the trial judge did not err in denying defendant's motion to vacate the FRO.

Affirmed.

1 The charge was later dismissed in municipal court.

2 The judge also found that defendant had trespassed upon plaintiff's property but because criminal trespass was not a predicate act alleged by plaintiff in her application for a TRO, it could not be the basis for the entry of an FRO. See I.J. v. I.S., 328 N.J. Super. 166, 178-79 (Ch. Div. 1999) (citing J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998)). ("A restraining order is limited to the facts contained in the domestic violence complaint. It is a violation of due process to issue a restraining order based on acts of domestic violence not mentioned in the complaint.") The judge did not make any finding as to whether plaintiff had proven the predicate act of harassment.

3 We omit the parties' last names to protect the confidentiality of T.S.'s child.