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Tuesday, April 21, 2009

No TRO if no harassment Balarin v Balarin

No TRO if no harassment





DOCKET NO. A-4191-07T34191-07T3







Submitted December 3, 2008 - Decided

Before Judges Stern and Payne.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Passaic County, Docket No. FV-16-000979-08.

Bastarrika, Guzman & Soto, LLP, attorneys

for appellant (Jose I. Bastarrika, of

counsel and on the brief).

Respondent has not filed a brief.


Defendant, Maria Balarin, appeals from the denial, by order

dated March 28, 2008, of her motion for reconsideration of a Final Restraining Order ("FRO") entered November 26, 2007. Defendant argues that the elements of harassment were not proven, that she was not permitted "to cross examine the plaintiff-respondent," that the trial judge did not "render findings of credibility as to the factual witness," and that the trial judge failed to "inquire as to whether or not [defendant] wished to obtain counsel" before the hearing commenced.

The FRO was entered on November 26, 2007, and the motion for reconsideration was dated (and defendant says was filed on) December 17, 2007, twenty-one days later. As a result of defendant's motion for reconsideration, the Family Part entered an "Amended Final Restraining Order" on March 28, 2008, defendant having prevailed in terms of having "collateral issues" addressed in the FM proceedings. Based on tolling, see R. 2:4-3, we consider the amended FRO as opposed to merely the denial of reconsideration.

Defendant is correct that the record reflects that she received no advice as to the right to counsel before the original FRO proceedings began. She says she would have retained counsel, and the trial judge on the motion for reconsideration acknowledged an attorney could have helped her. But the judge also said that defendant could have asked for counsel and the proceedings could not have been re-done after an FRO was entered. We need not address this issue in light of our disposition.

In the words of defendant's brief, plaintiff's complaint alleged that defendant "made numerous phone calls to [plaintiff], had called him vulgarities, and had appeared at his home with the parties' children" incident to a dispute as to which parent was going to take a son to a doctor's appointment. The finger of one of parties' sons was broken during a prior visitation with plaintiff and the parties disputed how the doctor's appointment was to be handled. Defendant says she couldn't take the son for the appointment and asked plaintiff to do so. The plaintiff testified at the November 26, 2007 hearing about what happened incident to that "request" as follows:

Okay. So at 7:30, my kids call me on that day and asked me to take them to the doctor, on the very same day. I told them to just tell their mother to take them, and that if she needed me to take them to the doctors she has to give me prior notice so that I can make arrangements if I cannot take them. And, so, I just told them that, and we finished the conversation and they call, with her cell phone, about seven more times. This is the home where I live with my fianc�e, my newborn son, and her -- her family.

So, after responding the seven times, every time my kids will talk I will hear her [in] the background telling them what to say until she will start talking to me and cursing me out, and I will hang up the phone.

So, at 10:30 that morning they ran -- the - - the bell rang and my two kids showed up in the front of the house, and I told them that I was going to work, that I was working, because I do work -- I do a little work from the home, and that I couldn't take them to the doctor, but if the issue was the co-payment to tell the mother just to give the doctor my address and I will make the payments for the co-payment if that was what was bothering her.

So I told them to just go back to their mother's car because she was waiting outside the house, my fianc�e's house. They went and stood inside the car. She came out of the car to the driveway and she started screaming on top -- top of her lungs that I was a bad father, that she's going to tell my fianc�e who I'm, you know, who Luis really is, and that they should know, and that I'm a bastard, and -- I mean, this goes on, and on, and on, and on since we got divorced. She's never really -- she continues to harass me for no reason, to the extent, Your Honor, that I don't understand why my kids are waiting outside. They should be in school right now.

Defendant brought the children to testify, but plaintiff successfully asked the trial judge to preclude that because they should not be "involved" in the dispute between their parents.

According to defendant's testimony:

There was no screaming and yelling. My sons are present here today because they were the ones who made the call, and there was four calls, and I have phone records to show that. It was not eight calls made, and my sons made the call to their father, asking if he would please take them to the doctor, and it was because my son broke his thumb on the Sunday, which is also here on this complaint, November 11th, in the presence of his father and his father neglected to take him to the hospital to get x-rays because he felt that this thumb was not broken. It was only when I was called by my son, who is present here today, to tell me, mom, I think I broke my finger and my father won't take me to the hospital, I had to call the Pompton Lakes Police Department, which I have records of the police report that was filed, to send a police officer to his fianc�e's home to ask and send the child to the hospital. And I did not have the fianc�e's address. I went based on the phone number.

Defendant further explained what happened on the day the thumb was broken:

Austin, my 12-year-old son, called me at -- shortly after 3:00 p.m. on my cell phone and said he fell, he was crying, and he thinks he broke his thumb, he heard a snap. And I asked him, my son Austin, to put his father on the phone, asked his father to please take him to the hospital, and he said, he's fine, he's just got some swelling, this will make a man out of him, and hung up the phone on me.

I had to call again. I repeated the call about three times. He answered the phone, what the f-- do you want, and finally, just -- he hung up the phone on me numerous times, which is a pattern, and I ended up calling the Pompton Lakes Police Department, giving them the number where my son called me from, and asking for them to please check on my son because I got -- I received a call from my 12-year-old son who stated he believed he broke his finger and the father refused to take him to the hospital.

Now, I also have hospital records and the police report.

Plaintiff further explained that the son had "a very low tolerance of pain," ice was applied, and the son was asked to call his mother. He said defendant refused to give him "the insurance information," but he took the child to the hospital where x-rays revealed the finger was broken. However, defendant insisted that plaintiff didn't arrive at the hospital until 7:10 p.m., almost four hours after her calls and over one hour after the police visit. Defendant also testified plaintiff was home the next morning and could have taken their son to the hand specialist.

The trial judge ruled:

The Court: All Right. Let me tell you how -- simple this is to me. I find I have jurisdiction over this matter.

I find that you committed the predicate offense of harassment by instructing your boys to call him four times and by then going to his house. I find that you were harassing him and I'm going to enter a final order. You are not to contact him any further. You are not to instruct anyone else to contact him. He can -- he can make separate arrangements for -- for visitation or for communication with the children, but you're all finished with this type of conduct. That was totally, totally harassment.

Ms. Balarin: My sons are here, Your Honor, and you can ask them personally.

The Court: They couldn't -- you just admitted to me enough for me to sustain the case. I don't need another witness. You harassed him. You told them to call him four times, and when he made --

Ms. Balarin: I didn't tell my son to call four times.

The Court: Excuse me. Excuse me. Wait in the back of the courtroom for a copy of the order. You're permanently restrained from contacting him.

Defendant subsequently retained counsel. At the motion for reconsideration hearing on February 14, 2008, defendant's counsel stated he did not receive the transcript of the trial, which he had ordered, although he suggested defendant couldn't afford an expedited copy. The judge said he would read the transcript when it arrived before deciding the application and whether to grant a new trial.

On March 28, 2008, further colloquy was conducted on the motion for reconsideration after the judge had reviewed the original transcript. The judge then ruled:

she would have had better representation if she had a attorney here, is -- I mean there's no way you can doubt that. There's -- I've seen very few instances in my entire career where a person is better off going to court without an attorney than with an attorney.

But this is an important matter. The -- the defendant knows that. The plaintiff knows that. People come in here every day of the week, and if I were to go back and interfere with a judgment of the Court because someone said they were too nervous to tell the Court that they wanted to get counsel and wanted a chance where they could get counsel, nothing would be final.

And really it's only for that reason, as far as the -- the case is concerned, the circumstances of the case are concerned, you know, there might be an -- an impact on credibility. There might be a lot of impacts with a counsel, but that's not for me to decide now.

It's too bad that, especially with such a good attorney, she -- she wasn't represented that day, but I'm not going to reconsider and -- and make this into anything but what it is. It's a permanent order, based upon the fact that she didn't exercise her right to have counsel.

Plaintiff did not file a response to the appeal and does not defend the FRO before us. We acknowledge that we are bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1988). This is especially true when questions of credibility are involved. Id. at 412. We also acknowledge that "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we must accord special deference to the fact finding of the Family Part. Id. at 413.

However, the Family Part's legal conclusions are subject to our plenary review, Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007), and we must determine if plaintiff proved "by a preponderance of the credible evidence" that defendant violated a statute incorporated into N.J.S.A. 2C:25-19. See Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). Moreover, even if the predicate act is proven, the FRO can issue only if necessary "to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. See also N.J.S.A. 2C:25-29(a), (b); Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995).

In this case, the record does not demonstrate that harassment occurred within the meaning of the statute. See N.J.S.A. 2C:33-4. Certainly the defendant's words do not suffice. See N.J.S.A. 2C:33-4(a); State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). Moreover, particularly in the absence of proof of a history of domestic violence, the circumstances do not suggest a purpose to harass. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. Castagna, 387 N.J. Super. 598, 605-07 (App. Div.), certif. denied, 188 N.J. 577 (2006); State v. B.H., 290 N.J. Super. 588, 597 (App. Div. 1996), aff'd in part and rev'd in part, 149 N.J. 564 (1997). In any event, given the absence of proof of a pattern or history of improper conduct and the fact that the incident was a reaction to the son's injury, the FRO was not necessary to protect plaintiff. Silver, supra, 387 N.J. Super. at 127-28.

Accordingly, the judgment is reversed and the FRO shall be vacated. The parties may address any relevant issues to the Family Part incident to any FM proceedings therein.



February 17, 2009