State v. Wilmouth

• Decision Date: 09 June 1997
• Citation: 302 N.J.Super. 20,694 A.2d 584
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. William C. WILMOUTH, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 20

302 N.J.Super. 20

694 A.2d 584

STATE of New Jersey, Plaintiff-Respondent, v. William C. WILMOUTH, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued May 28, 1997.

Decided June 9, 1997.

Allen Hantman, Denville, for defendant-appellant (Morris and Hantman, attorneys; Mr. Hantman, on the brief).

Thomas E. Bracken, Assistant Prosecutor, for plaintiff-respondent (Dennis O'Leary, Sussex County Prosecutor, attorney; Mr. Bracken, on the brief).

Before Judges PRESSLER, STERN and WECKER.

PER CURIAM.

Defendant William C. Wilmouth appeals from a judgment of conviction finding him guilty of the disorderly persons offense of violation of a domestic violence restraining order, N.J.S.A. 2C:29-9b, and imposing a penalty of one year of probation, a fine of $250, and VCCB and SSCP penalties totalling $125. We reverse and remand for entry of an order vacating the judgment.

Defendant and D.A. are the unmarried parents of a baby girl. A final restraining order, based on defendant's adjudicated harassment of D.A., was entered against defendant on September 7, 1995, under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 et seq. The order, among its other terms, prohibited defendant "from having any (oral, written, personal or other) form of contact or communication with" D.A. D.A. was granted custody of the child subject to defendant's right of "liberal and reasonable" visitation. The order stipulated that visitation was to be arranged between D.A. and defendant's mother and that D.A. would bring the child to and pick the child up from D.A.'s mother's home. It is, however, undisputed that following the entry of the order, the visitation arrangements were made directly between D.A. and defendant by telephone. Since he did not have her telephone number, it was she who called him to fix not only the time of the visitation but also to fix the place of drop-off and pick-up which apparently was not always at defendant's mother's home but, for D.A.'s convenience, occasionally at restaurants or other public places. As of December 2, 1995, however, the restraining order had not been amended for the purpose of expressly providing for direct communication between D.A. and defendant regarding visitation or, indeed, any other matter concerning the welfare of the child.

On December 2, 1995, defendant had the child with him at his parents' home. D.A. went there to pick her up at about 6 p.m. accompanied by a friend and by a local police officer whose presence she had requested to witness the exchange. Upon their arrival, defendant's father carried the baby out and defendant followed, carrying the car seat, the diaper bag, and other paraphernalia. Defendant was obviously upset and angry when he saw the officer. He addressed D.A., asking her in what she described as a hostile manner and in a gruff voice, "Am I going to get to see her tomorrow?" The police officer then suggested to defendant that defendant speak to him. Defendant said, according to the officer, "I've got nothing to say to you," and went back into the house. That was the entire incident, and the contempt order was based on defendant asking D.A., in the presence of a police officer, her friend and his father, if he would see his daughter the following day.

We do not regard the question defendant asked of D.A. as constituting a contempt of the restraining order, which, we were told at oral argument, was thereafter amended to permit communication between defendan...