Opinion
DOCKET NO. A-1642-10T3
07-23-2012
Y.J.-V., Plaintiff-Appellant, v. CM., Defendant-Respondent.
Y.J.-V., appellant pro se. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Kennedy.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-000604-11.
Y.J.-V., appellant pro se.
Respondent has not filed a brief. PER CURIAM
Plaintiff, Y.J.-V., appeals the Family Part's order dated October 13, 2010, denying his application for a Final Restraining Order ("FRO") against defendant, C.M., under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The court entered the order after considering the evidence adduced in a hearing at which both parties testified. We affirm.
The parties are the unmarried co-parents of a son, who is now six years old. They reside in separate dwellings and have a stormy relationship. In the past, defendant has obtained restraining orders against plaintiff. Plaintiff has intermittently been in jail.
Plaintiff obtained a temporary restraining order against defendant on October 5, 2010, based upon an allegation that she had harassed him through electronic messages. Eight days later, the case proceeded to trial. Both parties were self-represented.
In support of his harassment claims, plaintiff moved two exhibits, P-1 and P-2, into evidence at trial. The exhibits consisted of two groups of various electronic messages that defendant had sent plaintiff six months earlier in April 2010. In the first group of messages, P-1, defendant stated to plaintiff, in pertinent part:
I followed you all last night. It's crazy the things you do your first day being single. It didn't take you long to move on. Where [is] the money you took from me? But then you got 300 [sic] from your brother and $50 from me. . . . When I get money you owe me a car back.In the second batch of messages, P-2, defendant commented on plaintiff's relationship with other women, stating that "You got . . . the nerve to be taking two chicks in Elizabeth, be in Elizabeth. Everything's okay."
Plaintiff contended that these communications from defendant, which she did not deny making, comprised harassment under N.J.S.A. 2C:33-4. He alleged that he was in fear of defendant and that an FRO was necessary to prevent or discourage her from engaging in further harassment.
The trial judge denied plaintiff's request for an FRO. The judge noted that the acts complained of had occurred in April 2010, but plaintiff had not come to court seeking restraints until October 2010. The judge found that plaintiff failed to submit evidence of "any recent threats that would constitute an act of harassment that would entitle [plaintiff] to a[n] [FRO] at this time." Thus, the judge denied plaintiff's application for final restraints and dissolved the temporary restraints.
On appeal, plaintiff claims (1) the judge improperly denied relief based on predicate acts of harassment, along with other allegations of stalking and false imprisonment; (2) the judge failed to admit items into evidence; and (3) he is entitled to relief due to events which occurred after the hearing. Defendant has not filed a responding brief. Plaintiff's arguments are without merit.
We need not consider the materials outside the record included in plaintiff's appendix, some of which post-date the hearing. These items were not part of the evidence presented at the hearing and are not proper for our consideration. See R. 2:5-4; see also Darakjian v. Hanna, 366 N.J. Super. 238, 246 (App. Div. 2004).
Our scope of review is limited. As an appellate court, "[w]e are bound by the findings of the [trial] court that are supported by adequate, substantial, and credible evidence." L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011). "This deferential standard is even more appropriate when the evidence is largely testimonial and involves questions of credibility." Ibid. (internal quotation marks omitted). We also recognize that Family Part judges have "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Thus, we will only overturn the trial court where its decision is wholly incompatible with the proofs presented. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
Here, the trial judge reasonably concluded from the proofs that plaintiff had not proven the necessary legal elements of harassment. The electronic communications were not extremely disruptive or made in sufficiently offensive or coarse language. It also is not evident that defendant sent the messages with a criminal purpose to alarm or seriously annoy plaintiff. See L.M.F., supra, 421 N.J. Super. at 533-36 (holding that eighteen text messages sent by the defendant to the plaintiff did not comprise harassment because there was no evidence presented that the defendant ever intended to harass the plaintiff). Instead, the communications fall into the category of "ordinary domestic contretemps" between these feuding co-parents. Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995).
Plaintiff argues that defendant's transmission of these messages at a time when she had a restraining order against him must entitle him to a reciprocal FRO. Not so. The restraints procured by defendant would not prevent defendant, the putative victim, from initiating contact with him. If anything, plaintiff might be able to use the communications in a separate proceeding against defendant, by arguing that the restraints issued against him no longer are needed and should be dissolved. Cf. Carfagno v. Carfagno, 288 N.J. Super. 424, 436-39 (Ch. Div. 1995).
The significant lapse of time between the April 2010 messages and the October 2010 filing for an FRO also reflects the wisdom of the judge's denial. In particular, the substantial gap in time suggests that defendant was really not in immediate fear of defendant and that restraints are therefore unnecessary. See Silver v. Silver, 387 N.J. Super. 112, 126-28 (App. Div. 2006) (noting that "the guiding standard" in deciding whether to grant restraints is whether such restraints are "necessary"); accord J.D. v. M.D.F., 207 N.J. 458, 488 (2011).
Although plaintiff was in jail from some point in July 2010 through October 1, 2010, that incarceration does not account for plaintiff's failure to seek relief from the court in the approximately three-month interval between April 2010 and July 2010.
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The FRO hearing was conducted in a fair manner. The judge was not obligated to allow plaintiff to reopen the record with additional proofs after each side had rested. Plaintiff was given ample opportunity to present his case-in-chief.
All other points raised by plaintiff lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION