DENNIS DEEVY v. CHRISTINA GIANNOTTI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0113-05T30113-05T3

DENNIS DEEVY,

Plaintiff-Respondent,

v.

CHRISTINA GIANNOTTI,

Defendant-Appellant.

 

Submitted May 24, 2006 - Decided June 12, 2006

Before Judges Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FV-12-2065-05.

Central Jersey Legal Services, Inc., attorneys for appellant (Rachel E. Partyka, of counsel and on the brief).

Respondent did not file a brief.

PER CURIAM

Defendant Christina Giannotti appeals from a May 25, 2005 final restraining order issued under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We reverse.

Defendant and plaintiff, Dennis Deevy, were in the midst of a dating relationship when on April 5, 2005, she was packing her belongings preparing to leave plaintiff's home, where she had been living with her two children since approximately July 2004. After an argument ensued between the parties, defendant went into the bathroom, grabbed a bottle of K-Y Jelly, and, after arguing with plaintiff about a missing bag of condoms, she squirted the K-Y Jelly on plaintiff's bed. As she walked away, plaintiff kicked her and broke her arm. The parties filed complaints for restraining orders against each other.

The Family Part judge entered restraining orders against both parties. The judge found defendant committed harassment pursuant to N.J.S.A. 2C:33-4c. The statute says:

Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:

. . .

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

[N.J.S.A. 2C:33-4c.]

In arriving at his decision finding defendant guilty of harassment, the judge reasoned as follows:

Now, the next issue is whether or not that act would constitute harassment. Well, Subsection C of the harassment statute, 2C:33-4 provides that a person that's guilty of harassment engages in any course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy such a person. This case law seems to suggest that the conduct has to be repeated in nature.

But in and of itself, would obtaining this KY Jelly and spreading it on the bed during the course of this argument, particularly with someone who I think that Ms. Giannotti would know, for a lack of a better term, was a very neat person, kept a very clean house? Whether or not that was done as a course of conduct that would cause serious annoyance or alarm. I think that is harassment. I think that she did that because she was angry, and she did it to piss him off basically, to get under his skin. And I think that that . . . transcends, I think, what would be just domestic contretemps and was done for a purpose to seriously annoy him.

So I think that with regard to harassment, and only harassment, Mr. Deevy has proven his case.

The judge subsequently denied defendant's motion for reconsideration.

To warrant the issuance of a domestic violence restraining order based on a violation of N.J.S.A. 2C:33-4c, a plaintiff must establish a

purpose to harass, D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994); E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990), along with a course of alarming conduct or repeated acts intended to alarm or seriously annoy another, Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988).

[Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995).]

Here, while it is arguable that defendant squirted the K-Y Jelly with a purpose to harass plaintiff, she did not engage in a course of alarming conduct or repeated acts; her conduct was neither alarming nor serious. Simply because she was angry and tried to get under his skin does not mean that her conduct was sufficiently serious to qualify as harassment for the issuance of a restraining order.

 
Reversed.

Plaintiff has not appealed from the final restraining order against him.

(continued)

(continued)

4

A-0113-05T3

RECORD IMPOUNDED

June 12, 2006