SIDNEY RAMOS v. MICHAEL CEASER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0863-04T2863-04T2

SINDY RAMOS,

Plaintiff-Respondent,

v.

MICHAEL CEASER,

Defendant-Appellant.

_________________________________

 

Submitted September 12, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part, Essex

County, Docket No. FV-07-1021-05.

Peter A. Turco, attorney for appellant (Kevin E.

Glory, on the brief).

No brief filed on behalf of respondent.

PER CURIAM

This is a domestic violence case. Defendant, Michael Caeser, appeals from the entry of a final restraining order against him as a result of two telephone calls between him and plaintiff, Sindy Ramos, over a five day period from August 27, 2004, to September 2, 2004, during which defendant allegedly used coarse and offensive language. He contends there was insufficient evidence to support the trial court's determination that he harassed plaintiff, who has not defended this appeal. Defendant's contention has merit, and we now reverse the restraining order entered against him.

Some background is in order. Defendant's son is the father of plaintiff's two daughters and defendant is their grandfather. Plaintiff lived with defendant, his wife, and their son for about seven or eight months in 2003. Plaintiff eventually moved out of the house, but she remained friendly with both defendant and his wife, who were separated by then. In fact, plaintiff continued to visit with both defendant and his estranged wife, separately, to allow them to see their grandchildren.

On August 26, 2004, plaintiff visited defendant at his jewelry store in Montclair and had a conversation, in part, about defendant's estranged wife. Later, when visiting defendant's wife, plaintiff mentioned her conversation with defendant. Apparently upset that defendant might be trying to interfere in her personal life, the wife expressed her displeasure to defendant who then called plaintiff to complain. According to plaintiff, defendant was "very angry", "irate", and "cursing up a storm." When he continued "yelling and screaming," plaintiff hung up, but not before defendant said "just stay away from me and we won't have that problem." Although defendant made no threats, plaintiff was nevertheless "nervous and scared" because of defendant's size - 340 pounds - and "especially with the past that [she] had with his son."

That same day, she wrote defendant's son a letter, threatening not to allow him to see his children because of the incident. When defendant learned of this communication, he called plaintiff on September 2, 2004, and asked "how can you threaten my son like this." According to plaintiff, defendant began cursing at her again and was even more irate than during the earlier telephone conversation. She said she feared for her safety although there were no prior conflicts or incidents of violence between the two.

Defendant does not dispute that he initiated the two telephone calls and that he told plaintiff to "stay away" from him, but, in all other respects, his account of the conversations differs from plaintiff's. He denied cursing at her and, instead, insisted that he simply called to discuss the situation, to ask plaintiff why she lied to his wife and why she wrote the letter to his son.

On these facts, the judge concluded defendant had committed acts of harassment prohibited under the Prevention of Domestic Violence Act. N.J.S.A. 2C:25-19(a)(13). Specifically, the judge found:

That means I believe that on two separate occasions, that within a one-week period, the defendant contacted the victim by telephone, and used abusive, offensive, and coarse language in communicating with her.

. . . .

I find that based on the testimony

. . . I can infer an intent to harass by calling someone up and -- using extremely offensive language. And I also find that --as I find the intent was to harass -- I find that the acts themselves were capable of being extremely annoying or offensive.

I find that this is particularly so taking the history between the parties, and I'm not in any way saying that there wasn't good feelings between the parties, or that the defendant has not helped the plaintiff. But rather that the fear that is generated, and the harassment element that is generated, is by the potential for violence that this type of harassment brings about, given the difference in size between the parties, and the feeling that the -- the potential that the rage could be acted upon.

In our view, the record provides no support for such a determination.

The judge found defendant guilty of harassment as defined by N.J.S.A. 2C:33-4(a), conduct constituting domestic violence pursuant to N.J.S.A. 2C:25-19(a)(13). In relevant part, N.J.S.A. 2C:33-4(a) defines the petty disorderly offense of harassment as making "a communication . . . in offensively coarse language, or any other manner likely to cause annoyance or alarm" if the communication was made "with purpose to harass another . . . ." An essential element of harassment is that there be a purpose to harass in making the offensive communication. State v. Hoffman, 149 N.J. 564, 576 (1997). Absent proof of such purpose, a communication that might otherwise be characterized as offensive, coarse, or annoying does not constitute harassment. D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994).

We do not quarrel with the judge's credibility assessment respecting the offending telephone calls. That was clearly a matter within her discretion. Our difficulty is with the finding that these two communications constituted acts of domestic violence. We simply note at the outset that not every annoying and offensive communication can constitute an act of domestic violence. People in a family or a family-like relationship inevitably quarrel and say annoying, upsetting, or offensive things to each other. That is a fact of life, and the Legislature obviously did not intend to subject every harsh, unwanted, vulgar, profane, or nasty word to the remedial scope of the Domestic Violence Act. Domestic violence is not a trivial matter, and the fulfillment of the Act's objectives demands that it not be trivialized. See, e.g., J.F. v. B.K., 308 N.J. Super. 387, 391 (App. Div. 1998); J.N.S. v. D.B.S., 302 N.J. Super. 525, 527 (App. Div. 1997). See also L.D. v. W.D., 327 N.J. Super. 1 (App. Div. 1999). The critical issue is one of context, that is, whether defendant, in making the phone calls, acted with a purpose to harass, and whether plaintiff reasonably believed that her health, safety, and well-being were at risk as a result of the offensive communications.

Here, defendant did indeed twice communicate with plaintiff about her communications with his wife and son, but we find nothing in the record to support a determination by a preponderance of the evidence that defendant's purpose was to harass. On the contrary, even by plaintiff's own admission, defendant's purpose was to warn plaintiff to stay away from him because of what he perceived to be the nature and substance of her communications with his wife, whom he was in the process of divorcing, and his son, whom plaintiff threatened with the loss of visitation. Although the tone of defendant's conversations may have upset plaintiff emotionally, it did not justify an inference of a purpose to harass, and, therefore, the communications in issue did not constitute domestic violence. See E.K. v. G.K., 241 N.J. Super. 567, 570-71 (App. Div. 1990).

Nor was it reasonable for plaintiff to feel threatened thereby. Other than defendant's size and plaintiff's prior relationship with defendant's son, it is unclear what facts the judge found and relied upon in reaching her conclusion. Under the circumstances, however, where plaintiff concedes that defendant never threatened her and there were no prior incidents of conflict or violence between the two, the disparity in their respective sizes and plaintiff's course of conduct with another individual are clearly insufficient to justify a finding of domestic violence and the entry of a restraining order. Indeed, as to the latter, there were no findings whatsoever concerning the character and quality of the relationship between plaintiff and defendant's son. Likewise, despite allegations, the record is silent with respect to what had previously in fact happened between those two that led plaintiff to believe that defendant, who himself neither threatened nor ever harmed her, really meant to do her harm at some future time.

Here, at most, the parties' course of activity was one of mutual annoyance, not domestic violence. See State v. L.C., 283 N.J. Super. 441, 450-51 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996); Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995).

 
The final restraining order is accordingly reversed. The matter is remanded for entry of an order vacating the restraints.

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7

A-0863-04T2

RECORD IMPOUNDED

September 20, 2005