R.D. V. T.H. A-0005-10T4 June 14, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0005-10T4

R.D., Plaintiff-Respondent, v. T.H., Defendant-Appellant.

Submitted April 12, 2011 - Decided June 14, 2011

Before Judges Payne and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-000106-11.

Richard R. Mazzei, attorney for appellant.

Secare, Ryan & Hensel, attorneys for respondent (Guy P. Ryan, on the brief).

PER CURIAM

Defendant T.H. appeals from a domestic violence final restraining order (FRO) based upon harassment, entered against him and in favor of plaintiff R.D., his former girlfriend. For the reasons that follow, we affirm.

The record reveals that on July 9, 2010, defendant filed a complaint for domestic violence, alleging that plaintiff had attempted to hit him with her truck. On July 13, 2010, plaintiff filed a complaint for domestic violence against defendant concerning the same incident.

Plaintiff, who delivers mail for the U.S. Postal Service, alleged that while she was driving the mail truck on July 9, 2010, defendant stepped directly in front of her truck, pointing to a piece of paper in his hand. Further, the complaint alleged that on July 8, 2010, defendant blocked her vehicle when she was exiting a street. When she drove around him, he screamed at her. Additionally, plaintiff’s complaint alleged that on July 7, 2010, while she was delivering the mail, defendant followed her around the neighborhood. When she came away from a home where she had left mail, he was parked in the middle of the street, and he screamed at her. In the complaint plaintiff stated that she just wanted defendant to leave her alone so that they could both get on with their lives.

In addition, plaintiff alleged a prior history of domestic violence. She asserted that defendant always seemed to be wherever she was delivering the mail. She certified that in the past he had threatened to slit her throat and to kill her and any one she was dating. Plaintiff claimed that at various times defendant had verbally abused her, hit her, pinched her, and thrown things at her. She also asserted in the complaint that defendant had sent a letter to her work place accusing her of tampering with the mail.

At the trial of both domestic violence complaints on August 3, 2010, defendant informed the trial court judge that he wanted to dismiss his complaint against plaintiff. Defendant testified that he had never been in fear of plaintiff, but he filed for a restraining order because he felt that the police pressured him to do so. After questioning defendant as to his understanding of the consequences of dismissing the complaint, the judge determined defendant's decision was voluntary and permitted the dismissal.

Defendant also testified that he was not going to contest plaintiff’s complaint and that he wanted to "plead guilty." He acknowledged that he had read plaintiff’s complaint and it was "one hundred per cent correct." Defendant, who worked as a truck driver for a municipal public works department, explained that during the July 9, 2010, incident he had intentionally blocked the road with his truck to get plaintiff’s attention. He admitted that he had been following plaintiff around without her permission while she was working. He averred that he did not want to hurt her, but he wanted to be friends. He did not recall making threats to plaintiff but he believed her statements that he did. He acknowledged that, when he was angry, he might have threatened to kill plaintiff and anyone she was dating, but he never meant to hurt her.

After defendant’s testimony, plaintiff testified. She stated that for about four years she and defendant had been in a relationship, which ended in April 2010. They had been living together until he moved out as a result of a temporary restraining order plaintiff obtained in May 2010.

In reference to the incident on July 9, 2010, plaintiff related that she had been driving on a dead end dirt road delivering mail. Defendant, who was on the road in his work truck, jumped out of his vehicle, waving a piece of paper. She drove around him, then called her boss as she had been instructed to do. Plaintiff stated that she had made the post office management aware of the problems she had been having with defendant. Plaintiff asserted that defendant’s behavior was an ongoing problem, which made her afraid. She felt like he was "stalking" her as she had seen him following her almost every day.

Plaintiff also testified about prior domestic violence. She gave as examples incidents that occurred in April and May 2010. When plaintiff broke up with defendant and asked him to move out of the apartment, defendant yelled, screamed, and threw things. Additionally, in June 2010, defendant wrote a letter to her postmaster, which plaintiff contended was an attempt to get her fired. After hearing plaintiff’s testimony, defendant agreed with it completely, stating: "Everything she said is true." He also apologized to plaintiff and her family.

The trial judge found that defendant had admitted the material allegations in the complaint, including following plaintiff without permission, contacting her employer to get her fired, threatening to kill her, and yelling and throwing things in anger. The judge found that the uncontested evidence proved that defendant had engaged in a course of annoying and alarming conduct that constituted harassment under N.J.S.A. 2C:33-4(c). Noting that, despite defendant's present contrite attitude, his actions were a matter of concern, the judge issued the FRO. This appeal followed.

Defendant makes the following contentions for our consideration:

I. The Trial Court erred in considering any evidence of alleged domestic violence prior to the Order of dismissal of June 14, 2010, as any such evidence is barred by Double Jeopardy underU.S.C.A. Const. (sic) amend. V.

II. The Trial Court erred in considering any evidence of alleged domestic violence prior to the Order of dismissal of June 14, 2010, as any such evidence is barred by Double Jeopardy under N.J. Const. Art. I, ¶ 11.

III. The Trial Court erred in considering any evidence of alleged domestic violence prior to the Order of dismissal of June 14, 2010, as any such evidence is barred under N.J.S.A. 2C:1-9.

IV. Under the principle of Res Judicata, the Trial Court erred iN considering any evidence of alleged domestic violence which had been decided in earlier proceedings.

V. Under the principle of Collateral Estoppel, the Trial Court erred in considering any evidence of allegeD domestic violence which had been decided adversely to the Respondent in prior proceedings.

VI. The Appellant's Due Process rights were violated by the Trial Court considering alleged acts of domestic violence not alleged in the Complaint.

VII. The Trial Court's findings that the Appellant committed an act of Domestic Violence is contrary to the weight of the evidence.

Our standard of review in domestic violence matters is exceedingly circumscribed. In particular, we must defer to the trial judge's factual findings unless they are shown to be not reasonably supported by the record and thus "'clearly mistaken'" or so "'wide of the mark'" as to result in a denial of justice. N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J 88, 104 (2008) (quoting N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J 596, 605 (2007)); see also C.M.F. v. R.G.F., 418 N.J. Super 396, 401 (App. Div. 2011). We must accord considerable weight to the trial judge's findings of credibility, given that the judge is in a unique position to evaluate the demeanor of the parties and the other witnesses. See Cesare v. Cesare, 154 N.J. 394, 412 (1998);Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J 474, 484 (1974). As the Supreme Court has emphasized, we owe special deference to the expertise of the Family Part in making often difficult judgments about the lives of families and children. SeeE.P., supra, 196 N.J. at 104; Cesare, supra, 154 N.J. at 413.

In adopting the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33, the Legislature declared that "domestic violence is a serious crime against society" because "there are thousands of persons . . . who are regularly beaten, tortured and in some cases even killed by their spouses and cohabitants." N.J.S.A. 2C:25-18. The Legislature intended the Act to "'assure the victims of domestic violence the maximum protection from abuse the law can provide.'" Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995) (quoting N.J.S.A. 2C:25-18). The term "victim of domestic violence" refers to persons protected by the Act and includes a person who had a dating relationship, as here. N.J.S.A. 2C:25-19(d).

"Domestic violence" means the occurrence of one or more of the fourteen specific criminal acts inflicted upon a person protected by the Act. N.J.S.A. 2C:25-19(a). However, the commission of one or more of the fourteen enumerated acts does not automatically require the issuance of an FRO. The court must consider other factors including the prior history of domestic violence between the parties and the existence of immediate danger. N.J.S.A. 2C:25-29(a).

One of the specified criminal acts is "harassment" in violation of N.J.S.A. 2C:33-4. See N.J.S.A. 2C:25-19(a)(13). Harassment is defined in the Criminal Code to encompass conduct in which a defendant, "with purpose to harass another":

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;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

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.]

Here, we agree that the proofs found credible by the trial judge adequately established that defendant engaged in a course of conduct designed to alarm or seriously annoy plaintiff under N.J.S.A. 2C:33-4(c). In addition to a finding of a course of annoying or alarming conduct, there also must be a finding that defendant acted with a purpose to harass. State v. Duncan, 376 N.J. Super. 253, 261 (App. Div. 2005). Even without a direct statement of the intent of the course of conduct, a purpose to harass another may be inferred "'from the evidence presented'" and from "'common sense and experience.'" Id. at 262 (quotingState v. Hoffman, 149 N.J. 564. 577 (1997)). The actions alleged by plaintiff and acknowledged by defendant included following plaintiff without her permission while she was working, blocking her in the street, yelling at her, threatening her, and writing a damaging letter to her employer. While defendant said he just wanted to be friends, common sense dictates the conclusion that defendant engaged in this course of conduct with the intent to harass plaintiff.

We have reviewed defendant’s arguments, none of which were raised at trial. We find no merit in defendant’s arguments, which do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following.

We must reject defendant's double jeopardy claims as inapplicable to this civil matter. The Double Jeopardy Clause of theFifth Amendment to the United States Constitution protects against a second prosecution for the same offense after a conviction or an acquittal, and also prohibits multiple punishments for the same offense. State v. Widmaier, 157 N.J. 475, 489-90 (1999). A complaint brought under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33, is a civil action separate and distinct from a criminal action. State v. Brown, 394 N.J. Super. 492, 504 (App. Div. 2007). At the hearings on the prior restraining orders, there were neither prosecutions nor acquittals.

Further, we are also not persuaded by defendant's arguments concerning collateral estoppel and res judicata. These arguments are inapplicable in this case, where, although a prior restraining order was dismissed, a new restraining order was sought involving additional allegations. As we held in T.M. v. J.C., 348 N.J. Super 101, 106 (App. Div.), certif. denied, 175 N.J. 78 (2002), "an individual act previously rejected as insufficient to constitute domestic violence may take on a greater significance because the [prior] act is later repeated in a manner that may amount to a course of conduct prohibited by [the Act]." Thus, a prior act found not to constitute domestic violence may be considered along with new conduct to determine whether a plaintiff has established domestic violence on the basis of a subsequent complaint. Ibid. This is especially true here where defendant admitted that all the prior acts pled in the complaint and testified about by plaintiff were true.

Applying the circumscribed review standard here, we affirm the trial court's findings, as they are supported by substantial credible evidence in the record.

Affirmed.