M.J.R. v. R.J.R., SR.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.J.R.,

Plaintiff-Respondent,

v.

R.J.R., SR.1,

Defendant-Appellant.

_________________________________

June 26, 2015

Submitted February 3, 2015 Decided

Before Judges Koblitz and Higbee.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-0109-14.

Emery Z. Toth, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant R.J.R., Sr. appeals from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A.2C:25-17 to -35, by Judge Marquis D. Jones, Jr., on August 15, 2013. Defendant argues his due process rights were violated because the FRO was granted in part because he violated civil restraints that were imposed without his input. He also claims that plaintiff did not prove the predicate act of harassment, N.J.S.A. 2C:33-4. Finally, he argues that Judge Jones did not sufficiently articulate his findings. We reject these arguments and affirm.

Plaintiff and defendant were involved in divorce proceedings. Plaintiff applied for a temporary restraining order (TRO), and then an FRO, which was denied by the family court in January 2013.2 The following day, a judge other than Judge Jones held a management conference in the divorce proceeding; the judge was concerned about escalating problems and future confrontations between the parties. The transcript of that conference reflects that the judge believed defense counsel was aware of the conference, and would be available by telephone. Counsel could not, however, be reached by phone.

Out of concern for the parties' safety and welfare, the judge entered civil restraints under the matrimonial docket number, giving plaintiff sole and exclusive use and possession of the marital home.3 The restraints also prevented defendant from having any communication or contact with plaintiff, except through counsel. The judge's order was immediately faxed to defense counsel, who then moved for reconsideration. At oral argument on the reconsideration motion, the judge advised defendant in person that the restraints remained in effect.

Despite the civil restraining order, plaintiff believed defendant was still coming to the marital property. At times, she smelled the odor of cigarette smoke lingering in the garage; defendant was a smoker, and plaintiff had stopped smoking over a year before these events. Plaintiff also noticed objects moved from places where she had put them. She believed defendant did these things to let her know he was there, and still in control. She testified that these actions frightened her.

On several occasions, plaintiff found typed notes addressed to her, which she believed had been left by defendant. Thereafter, in June 2013, plaintiff's brother installed surveillance cameras around the residence. The cameras would continuously record for one week, flagging periods where movement was detected. The video would then re-record over the prior week's recording.

On July 10, 2013, plaintiff found what she described as a "creepy" letter in her mailbox. A review of the surveillance video showed defendant arriving in his pick-up truck at the marital residence, while plaintiff was at work. The video also showed defendant approach plaintiff's mailbox close enough, and for a long enough time, to put something in it. The picture was grainy because plaintiff copied it from the video to her phone and the video had been recorded over by the surveillance equipment. Nevertheless, defendant and his truck were recognizable.

On July 15, 2013, at approximately 6:30 a.m., plaintiff awoke to find a cushion leaning against her sliding glass door where it had not been the night before. She also noticed a garbage can in her yard had been disturbed. Plaintiff's review of the July 15, 2013 surveillance revealed defendant moving around in the yard of the home at 2:00 a.m. in the morning.

Thereafter, on July 16, 2013, plaintiff obtained a domestic violence TRO for harassment and stalking. She obtained an amended TRO on July 19, 2013, adding criminal trespass. Hearings were held on August 13, 2013 and August 15, 2013, where plaintiff, plaintiff's brother, and defendant testified. The surveillance videos were also played for the court.

Plaintiff's brother described how and why he installed the cameras, and how they worked. He also described two prior instances where he had seen defendant physically shove and hold plaintiff roughly against a wall. Judge Jones found this witness to be reasonable and credible.

Plaintiff set forth the events as described above. In addition, plaintiff described the past history of violence in her long relationship with defendant. She revealed that she was verbally abused almost every day of her relationship with defendant. She described how he called her by an obscene name as well as calling her an idiot, fat, and a loser. She also explained how defendant told her he would "fucking kill her" on numerous occasions.

Plaintiff described how defendant threw a beer in her face, threw a cup of coffee on her, broke lamps, and put holes in the walls of their home on other occasions. Defendant hit her on numerous occasions, causing her bruises. Plaintiff had not filed domestic violence complaints or called the police in the past because she was afraid, and because he would apologize, explaining that if she filed a complaint he would lose his job or it would destroy his business. Defendant had been a state trooper during part of their relationship, and then was involved in a restaurant business.

Plaintiff also described an incident that occurred in 2011 when she had been driving a car with defendant as a passenger. On that occasion, defendant's verbal attack was so vicious that she stopped the car, began to shake, and had what she described as "a breakdown." She had to be removed from the car and taken by ambulance to the hospital. She testified that at the hospital, defendant tightly grasped her wrist and continued his verbal abuse. In fact, defendant testified that after the FRO was denied by the family court judge in January, plaintiff practically went into a "seizure" which defendant described as similar to plaintiff's condition on the day of the car incident.

Plaintiff also testified that on the evening that the FRO was denied and the night before the civil restraints were entered, defendant came to the home, even though he had not been staying there on a regular basis. On that night, plaintiff hid from defendant, but she heard him talking on his phone to the police, saying "whatever happens to Mrs. [R.] it wasn't me I didn't do it[,]" which was very frightening to plaintiff.

During defendant's testimony, he attempted to explain why, in the middle of the night, he was outside the home where his wife was sleeping. Judge Jones found defendant's explanation to be completely incredible. The judge also found defendant's denial of prior abuse to lack credibility.

At the completion of the August 15, 2013 hearing, Judge Jones issued the FRO that is the subject of this appeal, and orally placed the reasons for his decision on the record. It is from that decision that defendant appeals, arguing that the judge's reliance on the civil restraints, which had been entered in January 2013, violated his due process rights because the order was entered ex parte. This argument lacks merit; defendant had an opportunity to appear before the divorce judge and argue on the motion for reconsideration that the restraints were unnecessary.

As to the significance of a violation of an order imposing civil restraints at an FRO hearing, this has recently been addressed in N.B. v. S.K., 435 N.J. Super. 298 (App. Div. 2014). Judge Clarkson S. Fisher, Jr., explained that the violation of civil restraints does not constitute an act of domestic violence

In examining that question, the trial judge relied on the absence of legal authority to support a ruling that a violation of a matrimonial order can constitute an act of domestic violence. To be sure, the judge was correct on that specific point because the Legislature defined "domestic violence" only by referring to a series of criminal statutes. See N.J.S.A. 2C:25-19(a). We agree that a domestic violence action cannot be sustained absent proof of one of those specifically enumerated acts. Although the PDVA is to be liberally construed because it is remedial in nature, Cesare v. Cesare, 154 N.J. 394, 400 (1998), and although the Legislature has expressed the PDVA's intent 'to assure the victims of domestic violence the maximum protection from abuse the law can provide,' N.J.S.A.2C:25-18, our courts are not free to expand the meaning of domestic violence beyond the contours so clearly delineated by the Legislature.

[Id. at 305.]

Here, however, just as in S.K., plaintiff did not rely on the violation of the restraints as the predicate act of domestic violence. Instead, plaintiff relied on the predicate acts of harassment, stalking, and criminal trespass.

The entry and violation of civil restraints is part of the totality of the circumstances, along with the past history of domestic violence, that a judge should consider when making a decision on an application for an FRO. As Judge Fisher opined in S.K., supra

[C]ourts must consider the totality of the circumstances to determine whether the harassment statute has been violated. . . . Whether conduct rises to the level of harassment or not is fact-sensitive[,] [and] [t]he smallest additional fact or the slightest alteration in context, particularly if based on a history between the parties, may make a considerable difference in the application of the PDVA.

[Id. at 307 (citations and quotation marks omitted).]

In this case, there was substantial credible evidence to support Judge Jones' decision to enter an FRO against defendant based on the predicate act of harassment.4 The judge clearly set forth on the record the facts that supported his finding of harassment, engaging in any course of "alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy" plaintiff, N.J.S.A. 2C:33-4(c), and the need for an FRO, Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). We affirm the entry of the order of Judge Jones for substantially the same reasons he set forth on the record.

Affirmed.

1 Initials are used to protect the privacy of the parties.

2 It appears that plaintiff's complaint at that time concerned a tracking device placed on her car, but she could not prove that defendant placed it there.

3 Although both parties owned the home, defendant would come and go, and plaintiff testified that defendant rarely stayed overnight at the marital home.

4 There is no need, therefore, for us to address the question of whether there was evidence to support a finding of a predicate act of criminal trespass or stalking.