M.J.P. v. J.P.

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NOT FOR PUBLICATION WITHOUT THE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.P.,

Plaintiff-Respondent,

v.

J.P.,

Defendant-Appellant.

___________________________________

Submitted June2, 2015 Decided July28, 2015

Before Judges Koblitz and Higbee.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-0841-14.

Fein, Such, Kahn & Shepard, P.C., attorneys for appellant (Brian W. Kincaid, on the brief).

Dennigan Cahill Smith, LLC, attorneys for respondent (Michelle A. Newton, on the brief).

PER CURIAM

Defendant, J.P., appeals from a final restraining order (FRO) under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, entered against him on February 12, 2014, on behalf of plaintiff, M.J.P. We affirm substantially for the reasons stated by Judge Peter E. Warshaw. We add the following.

On January 30, 2014, plaintiff sought and obtained a temporary restraining order (TRO) against defendant, based on allegations of harassment, N.J.S.A. 2C:33-4(c), and stalking, N.J.S.A. 2C:12-10. The TRO prohibited defendant from having any contact with plaintiff, being present at plaintiff's places of employment or residence, and possessing any weapons.

On February 6 and 12, 2014, Judge Warshaw held a hearing on the domestic violence allegations. Judge Warshaw found defendant had committed both of the predicate acts, and thereby committed domestic violence. On February 12, 2014, Judge Warshaw entered an FRO, containing the same restrictions outlined in the TRO. The FRO, however, included some carefully defined and limited contact provisions to facilitate transfer of the parties' child. Defendant now appeals from the FRO.

The record reveals the following. The parties had one son from their marriage. On December 27, 2012, plaintiff filed for divorce from defendant. With the matrimonial action ongoing, and plaintiff remaining in the marital home, the parties entered into a consent order on January 6, 2014. Under the terms of that order, plaintiff was to move out of the home, into "a separate residence no later than February 1, 2014."

On January 26, 2014, plaintiff was in the process of moving out of the marital home. While driving out of the neighborhood with her seven-year-old son in the car,1 plaintiff passed defendant on the road. According to plaintiff, defendant turned his vehicle around and pursued her. At a traffic light, defendant exited his vehicle, approached plaintiff, and attempted to open the locked car door; defendant was yelling during this altercation. Plaintiff testified that defendant pointed his finger at her, knocked on the window, and appeared to be enraged. When plaintiff drove away, defendant again began to follow her.

During the chase, both parties called the police. The responding officers pulled over plaintiff and defendant separately, and sent them to their respective residences. Defendant admits that the police officer told him his son would call that night before going to bed, and that he should be patient and wait for his call. Despite that sound advice, defendant repeatedly called and texted plaintiff that evening, before she was able settle into her new apartment. Judge Warshaw found that defendant's need to have things happen how and when he wanted them, combined with his inability to leave plaintiff alone, was a pattern of behavior that would not stop if a TRO was not entered.

In addition, the testimony at trial revealed a history of incidents where defendant harassed plaintiff. The testimony also revealed incidents involving prior acts of physical violence. In response, defendant denied any intent to harass plaintiff and claimed he was concerned about his son and did not know plaintiff was moving that weekend.

At the conclusion of trial, Judge Warshaw resolved all issues of credibility in favor of plaintiff, finding that defendant's conduct constituted harassment. The judge found that defendant's escalating pattern of unwelcomed contact equated to serious annoyance under N.J.S.A. 2C:33-4(c).

Findings by the judge who heard the testimony are binding on appeal when supported by adequate, substantial, and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). The need to give proper deference to factual findings is nowhere more apparent than in family law matters. As stated by the Supreme Court, "[M]atrimonial courts possess special expertise in the field of domestic relations . . . [and] [b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We will not disturb factual findings unless "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Rova Farms, supra, 65 N.J. at 484 (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1964)). In this instance, the credibility and factual findings of Judge Warshaw are well supported by the record.

Enacted to protect victims of domestic violence and afford family court judges broad discretion in furnishing remedies, the PDVA incorporates certain criminal offenses, including harassment as defined in N.J.S.A. 2C:33-4(c), the violation of which may constitute domestic violence. A person is guilty of harassment if "with the purpose to harass another, he . . . [e]ngages in any . . . course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." Ibid. "Serious annoyance" is interpreted to mean "to weary, worry, trouble, or offend." State v. Hoffman, 149 N.J. 564, 581 (1997). Here, plaintiff testified that defendant's actions were very upsetting and she was afraid for her safety.

Defendant argues that Judge Warshaw erred because there was insufficient proof that he intended to harass plaintiff. Defendant's reliance on Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995) is inapposite. There we stated that arguments involving family finances, combined with threats of drastic financial measures and termination of the plaintiff's phone service, did not satisfy the standard under the PDVA in the absence of past violence in the relationship. Id. at 250. The conduct in Corrente is not comparable to defendant's conduct in this case, where there was evidence of past frightening actions by defendant directed at plaintiff.

If a predicate offense is proven, the court must then assess "'whether a restraining order is necessary, upon an evaluation of the fact[or]s set forth in N.J.S.A. 2C:25-29(a)(1) to -(6), to protect the victim from an immediate danger or to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006)). Thus, the plaintiff in a domestic violence complaint must prove not only that the defendant committed one of the enumerated acts of domestic violence, but also that an FRO is necessary for the plaintiff's protection.

The facts of the present case demonstrate ample proof of an intent to harass, as well as the other requisite elements of harassment. Importantly, the facts here support Judge Warshaw's finding that the FRO was needed to prevent future abuse.2

Defendant also argues on appeal that Judge Warshaw erred in making two evidentiary rulings. Defendant first argues that plaintiff was allowed to testify, over an objection, about a phone call she overheard between defendant and the parties' son. While plaintiff was testifying, she was asked why she believed defendant knew she was moving out on Sunday, January 26, 2014. Plaintiff recalled that she heard their son telling defendant he and plaintiff went to get moving boxes on Friday. Plaintiff continued that she also heard her son tell defendant that movers had been to the house moving things out on Saturday. Defendant argues that plaintiff's testimony was hearsay and inadmissible.

Judge Warshaw correctly ruled it was not hearsay. The testimony was not offered to prove the truth of what was said, but to explain why plaintiff believed her husband knew she was moving that weekend. The fact that plaintiff heard her son relay this information to defendant, regardless of whether it was true, was admissible evidence to show her understanding of what information defendant had been given. Later, defendant confirmed that his son told him plaintiff was packing up her things on Saturday.

Finally, defendant argues it was error for Judge Warshaw to allow, on cross-examination of defendant, the recording of his January 26, 2014, 911 call.3 Defendant argued at trial, and again on appeal, that the 911 recording was inadmissible because no police official authenticated the recording. We find that this contention lacks merit. The tape was authenticated by defendant himself, who acknowledged it was his voice. Defendant also acknowledged the content of the recording matched what he told police.

We note that only a portion of the 911 recording was played on cross-examination. Defense counsel was then allowed to play the entire recording on redirect, over the objection of plaintiff's counsel. Suffice it to say, the judge did not err in his admission of either piece of evidence. We affirm substantially for the reasons set forth in Judge Warshaw's comprehensive oral decision placed on the record on February 12, 2014.

Affirmed.

1 Defendant would have had custody of his son that night, according to the original parenting agreement. The consent order, however, gave plaintiff custody of the child on that day when she moved.

2 Judge Warshaw focused on harassment in his decision, but found defendant had also committed the act of stalking. As only one predicate act is required to find domestic violence, we will not address whether defendant's conduct also constituted stalking.

3 Defendant told the police on the recording that his wife was moving out over the weekend, contrary to his previous testimony that he was not aware she was moving that weekend.