L.A.V.H., Plaintiff-Respondent, v. R.J.V.H., Defendant-Appellant. FRO on DV where gps placed in vio of agreement
_____________________________
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
APPELLATE DIVISION
Argued April 4, 2011 – Decided August 10, 2011
Before Judges C.L. Miniman and LeWinn.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FV-02-000247-11.
Michael R. Mildner argued the cause for appellant (Lesnevich & Marzano-Lesnevich, LLC, attorneys; Madeline Marzano-Lesnevich, of counsel; Mr. Mildner and Jeffrey B. Hodge on the briefs).
Peter A. Jeffer argued the cause for respondent.
PER CURIAM
Defendant appeals from the August 17, 2010 domestic violence final restraining order (FRO) entered against him in favor of plaintiff, his former wife. We affirm.
We summarize the pertinent evidence from the hearing on plaintiff's FRO application on August 17, 2010. The parties were divorced in July 2009. Around the time of the divorce, plaintiff became involved in a relationship with Matthew DiLeo. When defendant learned of this he installed a GPS tracking device on an automobile that he owned and plaintiff used.
Plaintiff obtained a temporary restraining order (TRO) against defendant immediately following the divorce. She described the circumstances leading to that TRO as follows: when defendant would come to pick up the parties' daughter he would make "comments about who was coming and going from [her] home, things that were in [her] garbage . . . . He knew everything about everything [she] was doing at all times."
In October 2009, the parties entered into a consent order under their matrimonial docket imposing civil restraints; plaintiff then dismissed her TRO. Among the restraints to which defendant consented was the prohibition against his "stalking, following or threatening to harm, stalk or follow . . . [p]laintiff."
DiLeo testified that plaintiff has been his "girlfriend" for about one year. On May 21, 2010, while driving his car DiLeo hit a pothole, heard the sound of something falling off his vehicle and "saw a black box bouncing in the road . . . ." He opened the box and discovered "a battery pack and some sort of transmitting device . . . ." He asked a friend who is a police officer to look at it because he believed it to be a GPS tracking device. Shortly after this incident, DiLeo found a second GPS device attached to the bottom of his car. His friend advised him to file a complaint with the local police department, which he did.
DiLeo stated that plaintiff had been in his vehicle on at least two occasions, and her daughter on one occasion, during May 2010. Plaintiff had also occasionally driven his car prior to May 2010.
Plaintiff testified that she did not file her TRO until July 18, 2010, after learning of the GPS devices found on DiLeo's car, because she first filed "a couple of . . . police reports . . . in regards to [her] safety" but then felt it was in her "best interest to get another restraining order." She testified that she felt threatened by defendant; she believed he had violated their consent order by "us[ing her] . . . boyfriend to stalk and harass [her]." She remains "concerned for [her] safety when [defendant] knows [her] whereabouts at every given time."
In her TRO plaintiff described a prior history of domestic violence, including defendant putting the GPS device on the car she used, telling plaintiff she is "his property"; screaming at her and blocking her exit; and reporting her every action, including what was in her garbage and who was in her home.
Armand Biagini, a licensed private investigator, testified that in January or February 2010, defendant retained his services and paid him a $3000 fee in cash. Biagini was not permitted to testify as to the specific services he performed for defendant. He acknowledged telling defendant that he was familiar with GPS tracking devices.
Plaintiff called defendant to testify as a hostile witness. He testified that he asked Biagini to find out if DiLeo was "living at [his] house."1 He denied, however, that he discussed "the manner in which he would conduct that investigation[.]" He further denied discussing the use of GPS devices on DiLeo's car. Defendant testified that he did not know when Biagini started his investigation or "[h]ow [he was] supposed to investigate . . . ." Defendant gave Biagini no "instructions"; Biagini said "he knew what to do."
Sometime around the end of May, Biagini called defendant to say that "DiLeo was at the house and he lost the tracker." Defendant "thought" Biagini was referring to "a tracking device, unless it was something else." That was the first and only report he received from Biagini. Defendant acknowledged that, prior to the divorce, he put a GPS device on the car plaintiff was then driving. He stated that he hired Biagini because he did not want to harass plaintiff or DiLeo.
At the conclusion of defendant's testimony, he moved to dismiss "based on [the] failure to prove that an act of domestic violence occurred." Defendant also moved to dismiss the stalking charge, claiming that to find that such an act had occurred would require "a very over-broad application of the statute." The judge denied both motions.
Defendant was then questioned by his attorney. He noted that the parties' PSA provided that if plaintiff cohabited with an unrelated male, the marital residence would then be sold, under conditions set forth therein, resulting in defendant receiving sixty-five percent of the net equity in the residence. He suspected plaintiff was cohabiting with DiLeo and hired a private investigator because he "wanted a professional" whose "word . . . would hold up in court . . . ."
Defendant stated that his only purpose in hiring Biagini was to learn if plaintiff was cohabiting with DiLeo. He asked Biagini to "investigate" only DiLeo, not plaintiff.
Defendant stated that when he previously put a GPS tracking device on the car plaintiff was using, the parties were in marriage counseling at the time and he "wanted to trust her and get the trust back, so [he] put the tracking device in and found her with [DiLeo] . . . ." The marriage counselor "suggested" that he remove the GPS device because the parties had to "trust each other," so he removed it.
Regarding plaintiff's claims of prior domestic violence history in her TRO, defendant denied "pick[ing] through her garbage." He described the earlier incident as one in which they were yelling at each other, but he did not "interfere with . . . or threaten" her. He acknowledged telling plaintiff that she was his "property."
Defendant claimed that he is aware of what goes on in plaintiff's life because the parties "live in a small community, . . . know each other's friends, and . . . have a child that tells [them] everything." When asked by the judge if he felt that "by causing an investigator to follow . . . [DiLeo] that would upset [plaintiff,]" defendant responded: "Yeah, probably." He acknowledged that Biagini came up with no proof of cohabitation; he also agreed that DiLeo was allowed to "visit" and that plaintiff was entitled to have "a relationship" with another man and that would not constitute cohabitation.
The judge rendered a decision from the bench. She made the following findings: (1) defendant hired a private investigator who installed two GPS tracking devices on DiLeo's car and "defendant was aware of that"; (2) after the divorce, defendant "engage[d] in stalking and harassing behavior [toward] . . . plaintiff; (3) defendant's testimony that he waited five months to hear from Biagini was "difficult to believe"; (4) Biagini's testimony that he discussed tracking devices with defendant was credible, and defendant's denial of such a discussion was not; (5) defendant "sought to continue to keep tabs on his wife and what she was doing"; (6) defendant "attempted to remove himself somewhat . . . by having devices installed on [DiLeo's] car instead of on [plaintiff's] car and by having it done by an investigator rather than by himself"; and (7) defendant's description of the telephone conversation with Biagini, in which the investigator said DiLeo found "the tracker[,]" led the judge to believe that defendant was "aware" that Biagini was "doing the work [defendant] requested him to do through the use of a tracking device."
The judge found that defendant's conduct met the statutory definition of stalking, N.J.S.A. 2C:12-10, but did not constitute harassment under N.J.S.A.2C:33-4, because defendant acted "covertly with the intention of not having . . . plaintiff find out about it." Finally, the judge found that "[i]n light of the history between the parties and . . . specifically [the prior] stalking behavior . . ., the entry of a final restraining order is necessary for the protection of the plaintiff and to prevent . . . defendant from continuing to act in that way." The judge thereupon entered the FRO, which included DiLeo as a protected third party, and stated to defendant: "It's time to leave your ex[-]wife alone, sir."
On appeal, defendant contends that: (1) because his conduct was "directed" at DiLeo and not at plaintiff, the judge erred in finding that he committed the predicate act of stalking to warrant an FRO in plaintiff's favor; (2) plaintiff "failed to demonstrate the requisite fear or emotional distress" required to establish stalking; and (3) the judge erred in determining an FRO was necessary to protect plaintiff from further acts of domestic violence.
Having reviewed these contentions in light of the record and the controlling legal principles, we are satisfied they are without merit. We affirm substantially for the reasons stated by Judge Mary Thurber in her thorough decision rendered from the bench on August 17, 2010, which, we are satisfied, is based on findings that are adequately supported by the evidence. R. 2:11-3(e)(1)(A). We add only the following comments.
Our standard of review in these matters is deferential, in consideration of the particular expertise of Family Part judges. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Particularly where, as here, credibility determinations are critical to the judge's findings, we will not substitute our judgment unless we are convinced the record does not support those determinations. Ibid. Where we review a trial judge's conclusions of law, however, our review is de novo; we owe no deference to such conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
N.J.S.A. 2C:12-10(b) defines "stalking" as "purposely or knowingly engag[ing] in a course of conduct directed at a specific person that would cause a reasonable person to fear for h[er] safety or the safety of a third person or suffer other emotional distress." The definition of "course of conduct" includes "repeatedly maintaining a visual or physical proximity to a person; directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring observing, surveilling . . . a person[.]" N.J.S.A. 2C:12-10(a)(1).
By defendant's own testimony, his intention in hiring Biagini was to determine if plaintiff was "cohabiting" within the meaning of the parties' PSA because he stood to benefit financially if that were the case. Moreover, defendant's own use of a GPS tracking device to stalk plaintiff and learn her whereabouts is undisputed. This fact led the judge to discredit defendant's professed ignorance of the means Biagini used to accomplish the mission for which defendant retained him.
Plaintiff clearly testified that she felt threatened by defendant tracking DiLeo's movements. In light of the parties' prior history, the judge properly found her testimony credible. Defendant himself acknowledged, in response to a question from the judge, that "causing an investigator to follow . . . DiLeo" would "probably" be upsetting to plaintiff.
We are satisfied that defendant's conduct constituted the predicate act of stalking, N.J.S.A. 2C:25-19(a). Through a "third part[y]" and by use of a GPS tracking "device" defendant "follow[ed], monitor[ed] . . . [and] surveill[ed]" DiLeo, N.J.S.A. 2C:12-10(a)(1), for the purpose of learning information about plaintiff's private life. As such, although the GPS device was on DiLeo's car, defendant's "conduct" was clearly "directed at" plaintiff. N.J.S.A. 2C:12-10(b). As noted, plaintiff testified that this conduct caused her to "fear for h[er] safety" and to "suffer . . . emotional distress." Ibid.
The judge's reasons for finding that defendant's conduct did not constitute harassment lend further support to the basis for her determination that he did commit stalking. Because defendant acted "covertly" and did not want plaintiff to "find out about it[,]" the judge determined that defendant did not have a purpose to annoy or alarm plaintiff, N.J.S.A. 2C:33-4(a). The very nature of that "covert[]" and secretive conduct, however, is consistent with the offense of stalking.
Defendant's last point is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say, the judge specifically found that defendant's history of using GPS devices, whether directly or indirectly, to keep track of plaintiff's personal life, necessitated an FRO to protect her from such conduct in the future. As the judge told defendant, it is time for him to "leave [plaintiff] alone." We are satisfied that the judge adequately complied with the two-pronged test set forth in Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006).
A
1 Pursuant to the property settlement agreement (PSA) incorporated in the parties' divorce judgment, plaintiff is permitted to reside in the marital residence until the parties' child graduates from high school, and defendant agreed to pay the mortgage until the house is sold, in lieu of alimony.
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