L.A.D. v. A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

L.A.D.,

Plaintiff-Respondent,

v.

A.D.,

Defendant-Appellant.

___________________________________________________

Submitted May 6, 2014 Decided July 30, 2014

Before Judges Messano and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket Nos. FV-12-1481-13; FV-12-1499-13.

Law Office of Edward Fradkin, L.L.C., attorneys for appellant (Mr. Fradkin, of counsel and on the brief).

Respondent L.A.D. has not filed a brief.

PER CURIAM

Defendant A.D. appeals from the final restraining order (FRO) granted to plaintiff L.A.D. pursuant to the Prevention of Domestic Violence Act (the PDVA), N.J.S.A. 2C:25-17 to -35, as well as the order dismissing the previously-entered temporary restraining order (TRO) entered against plaintiff. The record demonstrates that the parties were married in 1998, and had two children, a daughter who was nine at the time of trial, and a son who was seven. In January 2013, plaintiff and the children left the family home and moved in with plaintiff's mother, who resided in the same town.

On February 2, 2013, plaintiff secured a TRO based upon an incident that occurred earlier that day when she and defendant were exchanging physical custody of their son. Plaintiff alleged that defendant committed harassment, N.J.S.A. 2C:33-4, when he seized her cell phone and tried to "snap [it] in half." The complaint noted that defendant had been arrested on January 7 "for domestic violence and simple assault charges when he hit [plaintiff] in the face." Additionally, in the section of the complaint regarding prior incidents of domestic violence, plaintiff indicated that defendant "ha[d] been very abusive during their marriage and was arrested" in January.1

Four days later, defendant secured a TRO against plaintiff regarding the same incident. He alleged that plaintiff committed a terroristic threat, an assault and harassment when she "attacked him and scratched him on the neck . . . ." Defendant also referenced a prior incident of domestic violence that allegedly occurred on January 7, although his complaint stated that no charges were filed.

Plaintiff filed an application for an amended TRO that was granted on February 8, 2013. The amended TRO set forth a litany of verbal and physical abuse plaintiff allegedly suffered at the hands of defendant, commencing in the summer 2012 and continuing through February 2, 2013.

The matter was tried before Family Part Judge Alberto Rivas on March 18. Plaintiff stated that at 9:45 a.m. on February 2, 2013, she drove to the family home to drop her son off for a visit with defendant; the parties' daughter was in the front passenger seat of the vehicle. Unexpectedly and without her permission, defendant climbed into the back seat of the car, leaned across the seat, unzipped plaintiff's purse and removed her cell phone. Defendant exited the vehicle and attempted to snap the phone in half. Both children began to cry. Plaintiff left the car and pleaded with defendant to return her phone.

Defendant returned to his car with the phone and the parties' son. As defendant sat in the driver's seat, plaintiff reached in and grabbed the keys to his car. Defendant tried to block her from doing so while simultaneously trying to hold off his son who was attempting to get his mother's phone away from defendant. Plaintiff admitted that at some point during the incident, she may have accidentally scratched defendant's neck as she was reaching for her phone.

Woodbridge Police Officer Robert Montalvo responded to the 9-1-1 call and met plaintiff at her mother's house. Montalvo testified that plaintiff was "visibly upset . . . she was crying on and off throughout the time [he] was talking to her . . . ." Plaintiff told Montalvo about the incident and stated that she had been assaulted by defendant in the past.

Plaintiff testified that the February 2 incident spurred her to apply for a TRO because she "was afraid," of defendant and because of the "constant harassment," "threats," "yelling and screaming" and "taking [her] stuff." Plaintiff provided detailed testimony regarding the verbal abuse and other physical altercations with defendant that were listed in the amended TRO.

By way of example, on January 7, 2013, plaintiff was in the dining room of the marital home having a conversation on the telephone. Defendant was upstairs complaining in very coarse language about how loudly plaintiff was speaking. When she finished the call and went upstairs to the bedroom, defendant berated her and told her to move out. Defendant began "poking" her and, when her daughter came in the room, plaintiff told her to call 9-1-1. Plaintiff grabbed her own cellular phone and ran out of the bedroom with defendant following. The two began a "tug of war" over the phone, and plaintiff again told her daughter to call 9-1-1. As the two continued to struggle, defendant slapped plaintiff's face, "hard." Plaintiff told the children that they were leaving and instructed them to pack a bag. Defendant blocked the stairs, told plaintiff that she could not take the children, and ordered them to go back upstairs. Plaintiff drove three houses away to a neighbor's house and called the police.

Officer Brian Vella of the Woodbridge Police Department testified that when he arrived at the scene, plaintiff "appeared extremely distraught . . . ." She reported only that she had had an argument with her husband, but Vella sensed "she was trying to avoid speaking to me." Vella noticed bruising and swelling near plaintiff's lip, and he took photos that were introduced into evidence at trial.

Plaintiff admitted that she did not immediately tell Vella what had happened because she was scared, since defendant "had threatened if [she] ever called the police that . . . he may get arrested but he'd get back out, that it was only gonna [sic] make things worse . . . ." Vella signed a criminal complaint against defendant for "domestic violence, simple assault."

Following that incident, plaintiff and the children left the marital home. Defendant was released on bail and texted plaintiff "in the middle of the night to say . . . they took my guns, thanks for ruining my life . . . ." The next morning, he called and told plaintiff to look outside. She did, and found that he had taken her car. On January 8, defendant withdrew $69,000 from the parties' savings account. On January 11, plaintiff went to defendant's home to pick the children up after visitation. Defendant again told plaintiff that she needed to return home and ordered her to get in "your room." Defendant held out his arms to prevent plaintiff from leaving, moving aside only after the children begged him and plaintiff threatened to call the police. Plaintiff reported this incident to the police but did not seek a restraining order.

Approximately one week later, defendant called plaintiff repeatedly, stating "[y]ou need to get the f- home . . . you're my wife, I'm not gonna allow this . . . ." On February 1, defendant called plaintiff's cell phone twenty-seven times to tell her that she and the children needed to come home. The phone calls continued the next day. Defendant was "very agitated . . . very mad . . . yelling . . . screaming." Plaintiff was fearful and did not report the phone calls to police. Plaintiff was forced to get a new cellular telephone after defendant, who still paid the parties' Verizon bill, changed the password to her account and voicemail.

In his testimony, defendant disputed most of plaintiff's version of the events of February 2. He approached plaintiff's vehicle to help his son exit from the rear seat and noticed the phone sitting in the center console. Defendant told plaintiff that he wanted to look at her phone, and she "went ballistic." Defendant believed he was "entitled" to look through the phone, because he paid the bill, and he was interested in seeing whether plaintiff had spoken with her sister and a neighbor, both of whom he believed were giving plaintiff bad advice about the marriage. Defendant admitted scrolling through the phone but denied attempting to break it in two.

Defendant introduced pictures of scratch and nail marks on his neck which he claimed were caused by plaintiff during the altercation, after which defendant drove himself to the police station. He did not want a restraining order to issue against plaintiff, but he wanted the day's events "noted." He told Officer Montalvo that plaintiff assaulted him and admitted taking her cell phone because he "wanted to look at it." Defendant showed the officer the scratch marks on his neck, but Montalvo declined to issue a summons because he believed defendant was the "initial aggressor."

Defendant denied ever having verbally abused plaintiff, although he admitted having blocked plaintiff's friend's number so that plaintiff could not use the phone to contact her friend. He denied ever having "intentionally assaulted" plaintiff, although he admitted accidentally slapping her in the face during the incident of January 7. Defendant stated there was no truth to the litany of allegations made by plaintiff.

Defendant also called Geraldine McCrobie, who lived across the street from the marital home, as a witness. McCrobie testified that she was not friends with either plaintiff or defendant, and that she had been watching from her window when she saw "[plaintiff] go[] after [defendant], like kind of grabbing at him" and lean into defendant's car. McCrobie admitted, however, that she had not seen what occurred beforehand.

In a thorough oral opinion that followed the testimony, Judge Rivas first addressed defendant's request for an FRO. He noted that defendant never testified he feared plaintiff, and Judge Rivas believed defendant filed the TRO "in retaliation . . . five days after the fact." Judge Rivas concluded defendant had failed to prove any terroristic threat or harassment, and that any contact between plaintiff and defendant was incidental to plaintiff "trying to recapture her phone." Judge Rivas concluded that even if plaintiff committed an assault, no FRO should issue against her. He reasoned that pursuant to Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), there was "no likelihood or real threat that . . . plaintiff [was] likely to engage in any acts of domestic violence." Judge Rivas found that defendant's and McCrobie's testimony lacked credibility. He denied defendant's request for an FRO.

Turning to plaintiff's complaint, the judge found that defendant was "obsessed" with plaintiff's phone, "which has been an indicator of his attempt to exercise control." He noted defendant's belief that he possessed a "unilateral right" to examine plaintiff's phone simply because he paid for it. The judge found plaintiff's testimony to be credible.

Judge Rivas noted that he was required to consider the events of February 2 "through the prism of what has taken place in the past . . . ." He referenced the "physical violence" that occurred in January, when defendant slapped plaintiff's face during an argument. The judge believed plaintiff's account of all the events that preceded her leaving the home in January, finding defendant's "statements of get out of my house, I'm in charge, I'm in control, I pay for things, all classic, classic behavior of a batterer."

Judge Rivas determined that plaintiff had proven harassment under subsection (a), based upon "the [twenty-seven] phone calls" defendant made to plaintiff on February 1 that were intended "to cause annoyance or alarm." He reached a similar conclusion with respect to defendant's seizure of plaintiff's cell phone on February 2. The judge entered a FRO in favor of plaintiff, and this appeal followed.

Defendant contends that the entry of an FRO against him was improper because plaintiff was not fearful of him, and the evidence demonstrated only "domestic contretemps" between two spouses who were embroiled in ongoing divorce litigation. Although not contained in a specific point heading or sub-heading, defendant also contends that the evidence did not support a finding of harassment under subsection (c) because plaintiff did not allege a "course of alarming conduct or . . . repeatedly committed acts" in her complaint. N.J.S.A. 2C:33-4(c). Defendant also argues that the judge erred in dismissing the TRO against plaintiff because her actions amounted to an assault and the issuance of an FRO was appropriate.

We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Rivas. We add only the following.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

In Silver, we set forth the analytic framework a trial judge must apply when deciding if an FRO should issue:

First, the judge must determine whether the plaintiff has proven . . . that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred . . . . In performing that function, . . . [the] acts claimed by a plaintiff to be domestic violence [must] be evaluated in light of the previous history of violence between the parties. Stated differently, when determining whether a restraining order should be issued . . . 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, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim . . . . [T]he Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence restraining order.

[Silver, supra, 387 N.J. Super. at 125-127

(citations omitted).]

Initially, we reject defendant's claim that plaintiff was not in fear, and therefore, an order of protection was unnecessary. Plaintiff's testimony, which Judge Rivas found credible, demonstrated her fear of defendant. The argument lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

"Harassment" is one of the predicate offenses supporting the issuance of a protective order under the PDVA. N.J.S.A. 2C:25-19a(13). A person commits "harassment" if

[W]ith 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.]

Judge Rivas found a violation of subsection (a) based upon the more than two dozen annoying and alarming phone calls defendant made on February 1, an allegation that was specifically set forth in plaintiff's amended TRO. He also implicitly found that plaintiff sustained her burden of proof regarding subsection (c), in that the February 2 phone incident was the culmination of a course of alarming and annoying conduct.

"Integral to a finding of harassment under N.J.S.A. 2C:33-4(c) is the establishment of the purpose to harass, along with a course of alarming conduct or repeated acts intended to alarm or seriously annoy another[.]" Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995) (citations omitted). As the Supreme Court explained in State v. Hoffman, 149 N.J. 564, 580 (1997), "[t]he purpose of subsection (c) is to reach conduct not covered by subsections (a) and (b)."

Defendant argues that his conduct on February 2 was nothing more than "ordinary domestic contretemps," and the issuance of an FRO was unwarranted. Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995). However, Judge Rivas did not confine his analysis of the substantial, credible evidence to only what occurred on February 2. He considered the prior course of almost continual verbal and physical abuse that commenced months earlier. This was clearly appropriate, since defendant was on notice through the amended TRO that these events would be part of the proofs, and he never objected at trial. See H.E.S. v. J.C.S., 175 N.J. 309, 324-25 (2003) (requiring notice in proceedings under the PDVA of specific acts of alleged domestic violence). More importantly, Judge Rivas specifically found that the evidence taken as a whole demonstrated defendant's conduct was the very definition of domestic violence, i.e., "a pattern of abusive and controlling behavior which injures its victim." Corrente, supra, 281 N.J. Super. at 246.

Lastly, defendant's contention that Judge Rivas should have issued an FRO in his favor because plaintiff assaulted him lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). The judge explained that even if plaintiff assaulted defendant when she trying to recapture her phone, defendant had no fear of plaintiff or the likelihood of future domestic violence. Therefore, an FRO was inappropriate.

1 This portion of the complaint listed the date of defendant's prior arrest as January 17.