SUPERIOR COURT OF NEW JERSEY
APPELLATE
DIVISION
A.D.,
v.
TOBIN ETLIS,
_________________________________
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Submitted March 5, 2012 - Decided
Before Judges A. A. RodrÃguez and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery
Division, Family Part, Essex County, Docket No. FV-07-3090-10.
John W. Hartmann, attorney for appellant.
Calcagno & Associates, attorneys for respondent (Craig
A. Borgen, on the brief).
PER CURIAM
Defendant appeals
from a final restraining order (FRO) entered against him pursuant to the
Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to
-35. The primary issue is whether
the FRO was necessary to protect plaintiff. We affirm.
The
parties engaged in a dating relationship that lasted approximately six
months. Thereafter, defendant
belittled, berated, and left crude messages for her. He communicated with plaintiff by calling her in the early
morning hours, using Facebook, sending text messages, leaving voicemails,
making phone calls, and calling her parents' house. Plaintiff contended that defendant's communications
constituted a predicate act of harassment, N.J.S.A. 2C:33-4a, and that
an FRO was necessary because she feared him.
The
judge conducted the FRO hearing and listened to testimony from the parties and the
parties' mothers. The judge found
plaintiff to be a credible witness and stated, "I don't find at all
credible [defendant's] testimony [because] he contradicted himself three or
four times[.]" The judge then
determined that defendant harassed plaintiff and issued the FRO to prevent
future abuse.
On
appeal, defendant argues that the judge erred by concluding that the FRO was
necessary to protect plaintiff because of the geographical distance between the
parties, lack of contact, and lack of actual history of violence between the
parties. Defendant does not
dispute the judge's credibility findings or his conclusion that defendant acted
with the purpose to harass plaintiff.
When determining
whether to grant an FRO pursuant to the Act, the judge must make two
determinations. Silver v.
Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006). "First, the judge must determine
whether the plaintiff has proven, by a preponderance of the credible evidence,
that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a
has occurred." Id. at
125. Second, the judge must
determine whether a restraining order is required to protect the plaintiff from
future acts or threats of violence.
Id. at 126.
Here, the
defendant concedes on appeal that he acted with the purpose to harass. We conclude that the judge properly found
that defendant committed the predicate act of harassment, N.J.S.A.
2C:33-4a. Therefore, we focus on
whether the FRO was necessary.
As
we have recently stated, there must be a finding that "'relief is
necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011)
(quoting N.J.S.A. 2C:25-29(b)); L.M.F. v. J.A.F., 421 N.J.
Super. 523, 536-37 (App. Div. 2011).
It is well-established that commission of one of the predicate acts of
domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own,
"automatically . . . warrant the issuance of a domestic violence
[restraining] order." Corrente
v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v.
Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The determination whether such an order
should be issued must be made "in light of the previous history of
domestic violence between the plaintiff and defendant including previous
threats, harassment[,] and physical abuse and in light of whether immediate
danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248
(citing N.J.S.A. 2C:25-29a(1) and (2)); Peranio, supra,
280 N.J. Super. at 54.
Although this determination "is most often perfunctory and
self-evident, the guiding standard is whether a restraining order is necessary,
upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to
-29a(6), to protect the victim from an immediate danger or to prevent further
abuse." Silver, supra,
387 N.J. Super. at 127.
In
concluding the FRO was necessary to prevent future abuse, the judge stated:
[W]e
have to look at the second prong of the Silver test, the necessity of
the restraining order to protect the victim from danger or to prevent further
abuse. Considering these
communications, particularly involving the parents, I do understand [that] the
defendant has moved on [and is out of state]. But I do think [that] the history is not a good history even
in that short time. So I do think
she needs and is entitled to [the protection of an FRO].
So
what the [c]ourt is going to do now [is] discuss the propensity of further
abuse. I think that's this type of
a case. Particularly in light of
the totally incredible testimony [from defendant] that he sent any of these
messages or said anything that was at all troubling to her, or her
parents. I do think there's a
propensity for future abuse. So
we're going to stop it. It doesn't
mean the parties can't live their lives.
[Defendant] has testified that he has a new life up in New Hampshire or
in the New England area[.] He
should continue all of his work up there.
He's just not going to be able to legally have any contact with
[plaintiff] or her family.
After
their relationship, plaintiff received messages from defendant threatening her
and her parents. Defendant called
plaintiff's parents between midnight and 3:00 a.m., accused her father of being
"a bad parent," and stated that her father "raised a daughter
that has no worth living."
Defendant broke plaintiff's cell phone twice by throwing it on the floor
"because [plaintiff] was talking to someone he didn't like," and
defendant "told [plaintiff that] he had a gun and he had no problem using
it," meaning that "he would kill [her] if he could." We conclude that the judge did not
abuse his discretion by finding that the FRO was necessary to prevent further
abuse, even though defendant may now be a resident of a different state.
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