JURETHA NEAL v. MELVIN NEAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1161-04T11161-04T1

JURETHA NEAL,

Plaintiff-Respondent,

v.

MELVIN NEAL,

Defendant-Appellant.

________________________________

 

Submitted September 28, 2005 - Decided

Before Judges Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Somerset County, Docket No. FV-18-451-05.

Toby Solomon, attorney for appellant

(Ms. Solomon, of counsel; Kathleen

Morehouse and Ms. Solomon, on the brief).

Respondent Juretha Neal did not file a

brief.

PER CURIAM

Defendant Melvin Neal appeals from a final restraining order (FRO) entered by the Family Part pursuant to the Prevention of Domestic Violence Act. N.J.S.A. 2C:25-1 to -35. Defendant argues that the trial court erred when it found that he had harassed his wife on the date specified in her complaint. After reviewing the record, we agree with defendant's position and reverse.

The parties were married at the time the court entered the FRO. Plaintiff alleged harassment as the predicate offense supporting her domestic violence complaint. Her testimony before the trial on this issue, however, does not support a finding that defendant committed this offense.

We start our recitation of the salient facts by noting that on the evening in question, it was defendant who first sought police assistance concerning a marital dispute. According to plaintiff, on September 16, 2004, at approximately 10:00 p.m., she and defendant were arguing about the state of their finances. This argument led defendant to telephone the police. Plaintiff characterized defendant's demeanor at this point as "ranting" and "raving."

According to plaintiff, the responding officers were remarkably unsympathetic, telling defendant that "they had more important things to do than to keep coming out to our house, discussing our domestic matters." Assuming the responding police officers actually uttered these statements, they ordinarily would reflect an unacceptable insensitivity to the plight of a possible victim of domestic violence. It is, of course, completely irrelevant that the person seeking assistance is a man, and the alleged aggressor is a woman. As the Act itself makes clear, "[i]t is the intent of the Legislature to stress that the primary duty of a law enforcement officer when responding to a domestic violence call is to enforce the laws allegedly violated and to protect the victim." N.J.S.A. 2C:25-18.

Without losing sight of these vitally important public policy concerns, when we consider this alleged police "response" in the context of recent episodes involving these same litigants, the statements, if they were in fact made, may not have been indicative of police indifference to the serious problem of domestic violence, but rather an expression of reasonable frustration, prompted by the parties' irresponsible misuse of limited law enforcement resources. This requires further elucidation.

Eleven days before the incident that gave rise to this appeal, plaintiff and defendant had an argument about their finances. Plaintiff gave the following description of what transpired that day:

On November I mean on September the 5th, when [defendant] got in my face and said that he would burn the house down before I got it, that he would smash both cars before I got it, and that he would stop working in order to make sure I got nothing from him.

Q. Did you call the police on that occasion?

A. Yes, I did.

Q. Did the police arrive?

A. Yes, they did, because he was throwing stuff around. He took the phone out of my hand. I was trying to dial 911. He disconnected that, and he disconnected the VCR from the TV and I got scared.

So I went downstairs and I dialed 911 from the kitchen phone, and the police came out, and they talked to us separately, and he agreed that we could stay, you know, in the house together. He would stay downstairs, and I would stay upstairs. (Emphasis added.)

According to defendant, "three cop cars and a [police] motorcycle" responded to this 9-1-1 emergency call. Despite plaintiff's account of defendant's out-of-control, threatening behavior, no one was arrested and neither party filed a domestic violence complaint in connection with this incident.

On September 8, 2004, three days after the above-described incident, defendant obtained a domestic violence temporary restraining order (TRO) against plaintiff, alleging that while he was searching for their joint tax records, plaintiff "jumped on [him] . . . [while he] was bent over." In the brief scuffle that ensued, plaintiff "scratched" defendant's elbow with her "ring or finger nails."

Two days after plaintiff was served with this TRO, she obtained her own TRO against defendant. According to plaintiff, the facts supporting her complaint arose out of the same September 8, 2004, incident. She alleged that her husband, while searching for their joint tax records, "went to [her] room," demanding that she give him their tax returns. He then, according to plaintiff, "dumped bills out on the floor while yelling at [her]." He also "dumped" the contents of her purse, went through her wallet, and "left [the] contents on the table." Both parties dismissed their respective complaints, and vacated the accompanying TROs on September 16, 2004.

As to the incident of alleged harassment in this case, plaintiff testified that immediately after the police left, defendant "came back to the door and he told [her] that, do you know I could do more -- I could do more harm -- more -- whatever. But it was threatening to me, and it made it seem like he was going to do something." (Emphasis added.) Despite these alleged feelings of foreboding, plaintiff did not call the police or attempt to leave the house. In fact, she remained in the house with defendant that entire night. She did not file a domestic violence complaint against defendant alleging harassment, until the following day. Defendant denied making any threatening statements.

As she is entitled to do, the trial judge found plaintiff's testimony more credible than defendant's. The judge found that, on September 16, 2004, defendant said to plaintiff: "I can do worse." Reviewing these words in the context of the parties' volatile history, the judge engaged in the following analysis:

That brings me to the definition of harassment. Harassment occurs when with the purpose to harass another, that is annoy or alarm another, one makes or causes to be made a communication in any manner likely to cause annoyance or alarm.

Well, threatening to burn down the house and smash the car is certainly calculated to cause alarm, to intimidate, and thereby control.

So I do find that the plaintiff has made out by a preponderance of the evidence a cause of action for domestic violence -- for a final restraining order under the Domestic Violence Act on the basis of harassment.

We will begin our analysis by emphasizing that the term "domestic violence" is a term of art, "describing a pattern of abuse or controlling behavior which is injurious to the victim."

Tribuzio v. Roder, 356 N.J. Super. 590, 595 (App. Div. 2003). The intent and focus of the Legislature in enacting the Prevention of Domestic Violence Act was to address serious abuse between individuals protected under the Act. Corrente v. Corrente, 281 N.J. Super. 243, 247 (App. Div. 1995). However, one sufficiently egregious action may constitute domestic violence, even in the absence of a history of abuse between the parties. Cesare v. Cesare, 154 N.J. 394, 402 (1998).

We are satisfied that defendant's conduct here did not constitute an act of harassment. N.J.S.A. 2C:33-4 defines harassment as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

In order to prove the offense of harassment there must be sufficient evidence to support a finding of a "purpose to harass." E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990).

Plaintiff's description of the conduct that formed the basis for the issuance of the restraints was limited to an ambiguous phrase, uttered in the emotionally charged atmosphere created by the breakup of their marriage. In our view, the fact that plaintiff took no immediate action following defendant's statements of September 5, 2004, coupled with the parties' history of utilizing the remedies afforded by the Domestic Violence Act as expressions of their anger toward each other, rather than legal shields against violence, undermine the trial court's conclusion that defendant's words of September 16, 2004, (I could do more harm), divine meaning from the September 5, 2004 statements, thereby meeting the statutory elements of harassment.

In short, there is no evidential support to attribute to defendant's words the kind of sinister connotation found by the trial court.

 
We have cautioned trial judges and plaintiffs alike that to invoke the Domestic Violence Act under these kinds of circumstances, trivializes "the plight of true victims of domestic violence and misuse[s] the legislative vehicle which was developed to protect them." Corrente v. Corrente, supra, 281 N.J. Super. at 250. Conversely, we have also noted that domestic violence restraining orders have serious consequences to a defendant, and therefore should not be entered without an adequate factual basis. Chernesky v. Fedorczyk, 346 N.J. Super. 34, 41 (App. Div. 2001).

Reversed.

(continued)

(continued)

8

A-1161-04T1

RECORD IMPOUNDED

November 23, 2005