STATE OF NEW JERSEY v. BRETT HAAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2772-04T52772-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRETT HAAS,

Defendant-Appellant.

 

Submitted: September 21, 2005 - Decided:

Before Judges Fall and Parker.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket Number FO-13-152-05B.

Kamensky Cohen & Associates, attorneys for appellant (Marc J. Fliedner, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Julia Alonso, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Brett Haas appeals from his conviction in the Family Part on a charge of domestic violence contempt, N.J.S.A. 2C:29-9b, for allegedly violating the provisions of a domestic violence final restraining order (FRO) issued pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We reverse. The following factual and procedural history informs our conclusion.

On August 1, 2003, a FRO was issued against defendant in favor of Bethel Haas, now known as Bethel Reed Borgeson. At that time defendant and Ms. Borgeson were married. One child, Hannah, was born of their marriage. Defendant and Ms. Borgeson were separated and a dissolution action was pending under docket number FM-13-946-02. Residential custody of Hannah was vested with Ms. Borgeson, subject to defendant's alternate weekend parenting time with Hannah on Thursdays from 3:00 p.m., when defendant would pick up the child from Ms. Borgeson's residence in Mahwah, until Sundays at 6:00 p.m., when Ms. Borgeson would pick up Hannah from defendant's residence in Tinton Falls.

The FRO incorporated the custody and parenting-time arrangement set forth in the dissolution action, as modified by requiring that the pick up "shall be curbside immediately adjacent to plaintiff's unit[,]" and further stated that "phone contact is permissible to address parenting issues only." The FRO also restrained defendant from Ms. Borgeson's residence or place of employment; prohibited defendant from having any oral, written, personal or other form of contact or communication with Ms. Borgeson; prohibited him from making or causing anyone else to make harassing communications to Ms. Borgeson; and prohibited defendant from stalking, following, or threatening to harm, stalk or follow Ms. Borgeson.

On July 12, 2004, Ms. Borgeson filed a criminal complaint against defendant, alleging that defendant, on Sunday, July 11, 2004,

within the jurisdiction of this court, did violate the provisions of a final restraining order, specifically by stating "Why don't you go have another martini you drunk, you like them up with a twist and a lemon", to the complainant while talking on cell phones while the complainant was waiting at the defendant's address to pick up her daughter after visitation. This is in violation of NJS 2C:29-9b.

[And] did within the jurisdiction of this court harass the complainant with verbal communication. 2C:33-4a. The violation, due to the specifics on Final Restraining Order, "no communication between parties unless addressing parenting issues."

The complaint was tried non-jury in the Family Part on January 25, 2005, and February 8, 2005. Ms. Borgeson testified that she arrived at defendant's residence in Tinton Falls at 6:00 p.m. to pick up Hannah from her weekend parenting time with defendant. Using her cell phone, she then called defendant on his cell phone to say, "you bring her out, I'm out front." Ms. Borgeson stated that defendant answered his cell phone, telling her that he was stuck in traffic. When she asked defendant what time he would be back to his residence, he replied "I don't know" and hung up.

Ms. Borgeson stated she waited until 6:30 p.m. and then made a second call to defendant's cell phone

and said, Brett, where are you? He kind of chuckled. Why don't you go have another drink, you drunk. I think you want to have a martini. You like them up and straight.

Ms. Borgeson testified that defendant's tone of voice was "menacing and alarming." Ms. Borgeson stated that she

hung up and called the Tinton Falls Police and told them what the dialogue was and told them that there was a restraining order and that I was fearful . . . upon his arrival because of his tone. And the officer came over.

Detective Deborah Tornquist of the Middlesex County Prosecutor's Office, who had been the responding police officer on July 11, 2004, when then employed by the Tinton Falls Police Department, also testified. Detective Tornquist stated that she had been dispatched to defendant's residence at 6:36 p.m. to standby for a child pickup. When she arrived there a few minutes later, she observed plaintiff in a vehicle with her husband waiting for defendant to arrive with the child.

Detective Tornquist further testified that defendant arrived a few minutes later, and the child was exchanged without incident. Detective Tornquist observed that Ms. Borgeson "seemed frustrated and aggravated." Detective Tornquist also explained that on many prior occasions she has been dispatched to that same location to standby for parenting-time exchanges.

Defendant testified that on July 11 he was with Hannah at his parents' home in Ocean City, and left with Hannah at approximately 3:45 p.m. to return to Tinton Falls for the pick-up by Ms. Borgeson at 6:00 p.m. He explained that the traffic was heavy and he was unable to arrive by that time. Defendant stated that he received a call from Ms. Borgeson at 6:00 p.m. "asking where I was." He replied that he was "stuck in traffic[,]" and would be there "within 20 minutes."

Defendant testified further that at approximately 6:25 p.m. he received a second call from Ms. Borgeson. He stated that "[s]he was kind of annoyed[,]" and again asked "where are you, you're late." When asked what he said in reply, defendant stated:

I said I just got off the exit. I know exactly where I was, right off the exit of 105. I said I'll be there in one minute, I just got off the exit. See you in a minute.

Defendant denied saying anything else to Ms. Borgeson during that conversation.

After considering the testimony, evidence and summations by counsel, the trial judge found that the second telephone conversation occurred "exactly as [Ms. Borgeson] has stated." The judge concluded that the statement made by defendant did not constitute harassment under N.J.S.A. 2C:33-4a because "I don't find that the manner in which [defendant] said it was likely to cause annoyance or alarm to the extent that it would be actionable under that statute." The judge acquitted defendant of the harassment charge.

However, the judge concluded that the State had proven beyond a reasonable doubt that defendant had "violated the no- contact provision of the restraining order in that he engaged in conversation which in reality was forbidden with the exception of communication as to a child-related issue or issues[,]" contrary to the provisions of N.J.S.A. 2C:29-9b.

On sentencing, it was determined that defendant had a prior conviction for domestic violence contempt on February 13, 2004, subjecting him to imposition of a minimum term of not less than thirty days' imprisonment. See N.J.S.A. 2C:25-30. The judge sentenced defendant to a one-year probationary period and a thirty-day term of imprisonment. Applicable minimum mandatory fines and penalties were also imposed. Defendant was also ordered to complete an anger management course.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN ITS USE OF EVIDENCE OF PRIOR BAD ACTS.

POINT II

THE TRIAL COURT ERRED IN ITS ANALYSIS AND FINDING REGARDING THE STATE OF MIND REQUIRED FOR A FINDING OF GUILT ON THE CONTEMPT CHARGE (Not Argued Below).

POINT III

THE STATE FAILED TO PROVE APPELLANT'S GUILT OF CONTEMPT BEYOND A REASONABLE DOUBT.

POINT IV

THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF CONTEMPT GIVEN THE TRIVIAL, NON-ACTIONABLE NATURE OF ALLEGED VIOLATION.

The domestic violence restraining order in this case specifically permitted telephone contact between defendant and Ms. Borgeson "to address parenting issues only." This case illustrates the classic dilemma facing the Family Part where there is a domestic violence restraining order in place prohibiting contact by one party to the victim, yet there is a comprehensive custody and parenting-time arrangement between the parties that seemingly requires some form of communication on the day-to-day issues that inevitably arise when the time of a child is shared between two parents.

The laudable purpose of the Prevention of Domestic Violence Act is "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18; see Cesare v. Cesare, 154 N.J. 394, 399-400 (1998). The Act is comprehensive and authorizes, inter alia, the entry of orders pertaining to the issues of child custody, N.J.S.A. 2C:25-29b(11); parenting time, N.J.S.A. 2C:25-29b(3); and risk assessments to determine whether a particular parenting-time arrangement constitutes a risk of harm to the child, N.J.S.A. 2C:25-29b(3)(a) and -29b(3)(b).

The Act further provides that when considering the terms of a restraining order, the court must consider, inter alia, "[t]he best interests of the victim and any child[,]" N.J.S.A. 2C:25-29a(4), and when "determining custody and parenting time the protection of the victim's safety[,]" N.J.S.A. 2C:25-29a(5). More specifically, courts are statutorily cautioned that "[p]arenting time arrangements shall not compromise any other remedy provided by the court by requiring or encouraging contact between the plaintiff and defendant." N.J.S.A. 2C:25-29b(3).

Here, the court entering the August 1, 2003 FRO elected to effectuate the purpose and parameters of the Act by incorporating the terms of the custody and parenting-time arrangement existent in the parties' matrimonial action, modified by a curbside pick-up and drop-off condition to the exercise of parenting time by defendant, and granted permission for the parties to have telephone contact to address parenting-time issues only.

Where, as here, there is a history of volatility in the relationship between parents, permitting any contact is problematical because the scope of the limiting words "parenting-time issues" is left open to the vagaries of parental interpretation. Here, for example, both telephone calls initiated by Ms. Borgeson on July 11 certainly were made to address a "parenting-time" issue, more specifically, why defendant was late for the appointed 6:00 p.m. exchange of the child, and when would he be arriving at the point of that exchange. The record amply demonstrates that, as Detective Tornquist noted, Ms. Borgeson was understandably frustrated and aggravated by defendant's failure to meet for the exchange at the appointed time.

The trial judge found that during the telephonic discussion between defendant and Ms. Borgeson concerning defendant's tardiness and arrival time, defendant "kind of chuckled[,]" and stated "[w]hy don't you go have another drink, you drunk. I think you want to have a martini. You like them up and straight." The judge also found, however, that this statement did not constitute harassment, as defined by N.J.S.A. 2C:33-4a. Rather, the judge concluded that this statement violated the no-contact provision of the FRO. In the context of this case, we disagree.

The purpose and content of the subject call related to a parenting-time issue. Although defendant's reply to Ms. Borgeson's second telephonic inquiry on the same topic was clearly sarcastic in nature and certainly inappropriate particularly in the presence of the child in light of the trial court's conclusion that it did not constitute harassment, we cannot find that this conduct constituted an evidential basis for concluding that defendant "knowingly" violated the provisions of the FRO, contrary to N.J.S.A. 2C:29-9b. See State v. Finamore, 338 N.J. Super. 130, 138-39, n. 2 (App. Div. 2001) (finding that the evidence did not support a finding beyond a reasonable doubt that the defendant violated the domestic violence restraining order where, although "annoyed, frustrated and impatient, . . . neither [defendant's] tone nor the content of his remarks could be considered threatening or abusive").

In State v. Wilmouth, 302 N.J. Super. 20 (App. Div. 1997), the domestic violence restraining order did not permit communication between the defendant and the victim respecting parenting-time issues. Id. at 22. While the victim was at the defendant's home to pick up their child from a parenting-time session, the defendant saw that a police officer, who had been called by the victim, was present to witness the exchange. Ibid. The defendant, who "was obviously upset and angry when he saw the officer[,]" then "addressed [the victim], asking her in what she described as a hostile manner and in a gruff voice, 'Am I going to get to see [the child] tomorrow?'" Ibid. We noted that the victim had regularly initiated communications with the defendant concerning parenting-time issues, ibid., and that "[i]t cannot conceivably, under the circumstances here, be regarded as constituting quasi-criminal conduct subjecting defendant to the whole panoply of penalties imposable for such conduct." Id. at 23. In so concluding, we stated:

While we disagree that the contempt adjudication was appropriate, we are in full agreement that this was a trivial, non-actionable event, and we are of the further view that the prosecutor, as a matter of prosecutorial discretion, clearly had the right, had he chosen to exercise it, not to prosecute this matter. There are too many substantial and significant domestic violence matters requiring the urgent attention of the court system to squander judicial and prosecutorial resources on patently unmeritorious litigation which, moreover, unfairly subjects people to criminal penalties. The Domestic Violence Act affords critically needed protections in appropriate situations. It was not intended to regulate and adjudicate every loss of temper, angry word, or quarrel between persons connected by a familial relationship. . . .

[Wilmouth, supra, 302 N.J. Super. at 23.]

Here, there was specific permission for parental telephonic contact on parenting-time issues. The contact at issue was a second call by Ms. Borgeson and, obviously, concerned a parenting-time issue. We cannot conclude that defendant's sarcastic comment made when discussing that parenting-time issue constituted the basis for a knowing violation of the domestic violence restraining order in the absence of a finding that such comment constituted harassment.

The judgment of conviction is reversed.

 

Bethel Haas remarried on June 27, 2004.

(continued)

(continued)

12

A-2772-04T5

RECORD IMPOUNDED

October 21, 2005