RUTH S. LURIE v. DAVID M. LURIE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1391-05T31391-05T3

RUTH S. LURIE,

Plaintiff-Respondent,

vs.

DAVID M. LURIE,

Defendant-Appellant.

__________________________________

 

Argued: September 13, 2006 - Decided September 27, 2006

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Passaic County, Docket No. FV-16-469-06.

Ralph J. Padovano argued the cause for appellant (Beattie Padovano, attorneys; Mr. Padovano, of counsel; Jennifer Bretz and

Lawrence A. Calli, on the brief).

Patricia Speake Martin argued the cause for respondent (Arons & Solomon, attorneys; Ms. Speake Martin, of counsel and on the brief).

PER CURIAM

Defendant David M. Lurie appeals from a final restraining order granted in favor of plaintiff Ruth S. Lurie in accordance with the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm in part and remand for reconsideration of the provision governing defendant's access to the parties' daughter.

On August 19, 2005, plaintiff appeared at Wayne Police Headquarters to request a temporary restraining order pursuant to the PDVA. In her complaint she alleged that her husband "harassed her today and that he assaulted her on or about 7/31/05 in their home by pushing her against a kitchen counter, pushing his fists against her face, causing her to be in fear of her safety." The complaint alleged that the actions of defendant constituted assault and harassment. The complaint also asserted that there had been many prior domestic violence incidents "including prior assault[s] over 2 years ago never reported to [police]." The municipal court judge issued a temporary restraining order on that date.

On August 26, 2005, defendant sought and obtained a temporary restraining order against plaintiff. Thereafter, on August 30, 2005, plaintiff filed an amended complaint that alleged that the abusive behavior had occurred since 1988. On August 31, 2005, a judge entered an order that allowed the complaint to be amended but confined the complaint to behavior that occurred on or after May 21, 2002.

The hearing on plaintiff's application for a final restraining order commenced on September 21, 2005, and consumed four days. Plaintiff testified that the parties were married on August 15, 1976. Three children were born of the marriage. The oldest son was born in 1983 and was emancipated at the time of the hearing. The middle child was born in 1986 and was at the time of the hearing enrolled in college. The youngest child was nine years old at the time of the hearing and resided with both parents. By August 2005, the parties had commenced discussions about a marital separation.

Plaintiff testified that on August 18, 2005, the day before she filed her complaint, defendant threatened her with "dire consequences" if she threw out any of his possessions. She stated that she interpreted the remark as a threat of physical harm. She also testified that on July 31 defendant backed her into a kitchen counter while raising his fist toward her face and screaming at her. Plaintiff related that defendant pushed her back with his chest and his face was so close to her that she could feel his spittle on her face. Defendant's rage was precipitated by plaintiff's refusal to join defendant for a birthday dinner at his parents' home.

Plaintiff also testified about previous unreported incidents of domestic violence including threats of death, physical assaults, harassment and sexual assault. She also testified that defendant repeatedly referred to her by derogatory names. She related one incident when defendant choked her and one of their sons had to intervene.

Judge de la Carrera dismissed defendant's complaint and found that plaintiff had sustained her burden of proof that defendant had committed an act of domestic violence, namely harassment. The judge found plaintiff credible and that her testimony of prior incidents led him to believe that the incident of July 31 in the kitchen was an act of domestic violence, specifically harassment. He stated as follows:

The incident on July 31st in the Court's view certainly -- and combined with August 18th [the dire consequences incident] certainly given the past history reasonably caused the plaintiff, this is not some mere subjective assessment of her feelings, but I -- I think that she was reasonably justified in -- in feeling fearful that the past physical violence in addition to the mental abuse was in danger of making a comeback and made -- made one in terms of the offensive touching on July 31st.

Judge de la Carrera noted that notes made by defendant corroborated much of plaintiff's testimony, particularly regarding the outbursts of rage by defendant. He also found that plaintiff's testimony of the July 31 incident was "quite persuasive." He proceeded to find that "[plaintiff] established by a preponderance of the evidence that there was harassment in the form of an offensive touching when he pushed her backward toward a kitchen counter until they reached a counter by pushing her chest to chest and with his fists in her face pressed against her cheeks."

Consequently, the judge entered a final restraining order on September 27, 2005, that prohibited defendant from committing any future acts of domestic violence against plaintiff, excluded him from the marital home, granted temporary custody of the youngest child to plaintiff and barred visitation with the child until further order of the court.

On appeal, defendant argues that the findings of fact do not support a finding that he harassed or assaulted plaintiff, and that the trial judge erred by considering evidence of acts not recited in the complaint or the amended complaint and for periods beyond the time specified in the order allowing the amended complaint. Defendant also argues that the trial judge erred in barring parenting time with the youngest child, and that the trial judge erred in denying his application for counsel fees.

Defendant argues that the findings of fact are not supported by the evidence. Our review of such a contention is limited. We examine the record to determine whether the findings are supported by sufficient credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We do not reweigh the evidence; we do not substitute our evaluation of the evidence. Roe v. Roe, 253 N.J. Super. 418, 431 (App. Div. 1992). We also give particular deference to the findings of the family court judge in recognition of the particular expertise of the judge and the opportunity for the judge to observe the various witnesses and to assess their credibility. Cesare, supra, 154 N.J. at 413; Peterson v. Peterson, 374 N.J. Super. 116, 121 (App. Div. 2005). Once we determine that the findings of fact are supported by sufficient credible evidence, our task is complete.

To be sure, domestic violence is a term of art and is defined as "a pattern of abusive and controlling behavior injurious to its victims." Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995). Thus, the trial court and this court must determine whether the actions of defendant constitute an act of domestic violence or simply bad behavior. Compare Peranio, supra, 280 N.J. Super. at 56 (holding that husband's statement during a divorce proceeding that he was going to "bury" his wife, although "objectively alarming," did not constitute harassment) with Cesare, supra, 154 N.J. at 414 (holding that husband's statement "I do have a choice" constituted harassment in the context of the parties' relationship).

The PDVA does not create any new offenses. Rather, it designates specific offenses contained in the Code of Criminal Justice as acts of domestic violence in order to grant victims of domestic abuse full access to the legal system. Peranio, supra, 280 N.J. Super. at 54. Here, plaintiff alleged and Judge de la Carrera found that defendant's actions on July 31, 2005, constituted harassment. Harassment is a designated act of domestic violence. N.J.S.A. 2C:25-19. In order to establish harassment as an act of domestic violence, plaintiff was required to prove by the preponderance of the evidence that defendant committed acts prohibited by N.J.S.A. 2C:33-4. Thus, plaintiff was required to prove that

with the purpose to harass another, [defendant]:

(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.

[N.J.S.A. 2C:33-4(a) to (c).]

A person accused of domestic violence must act with a purpose to harass, Murray v. Murray, 267 N.J. Super. 406, 410 (App. Div. 1993), and this purpose is defined as a "conscious object to engage in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-2b(1); State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989). To determine whether the elements of harassment have been satisfied, the trial judge must examine the totality of the circumstances, including a past history of reported or unreported domestic violence. State v. Hoffman, 149 N.J. 564, 585 (1997).

Here, Judge de la Carrera found that plaintiff was credible, while defendant lacked credibility. He found that there was a long history of unreported acts of domestic violence, including acts of physical abuse, verbal threats and mental abuse. As to the acts of July 31, the judge found that defendant's behavior was meant to intimidate plaintiff, and given that past history of verbal and physical abuse, was designed to alarm her and to convey a threat of physical violence. The continuous nature of defendant's behavior, as demonstrated by plaintiff's testimony and corroborated by defendant's journal, allowed the judge to conclude that defendant acted with the purpose to harass his wife. See State v. Fin. Am. Corp., 182 N.J. Super. 33, 36 (App. Div. 1981) (holding that constant dunning telephone calls to the plaintiff's place of employment allowed the factfinder to deduce a purpose to harass).

Defendant's reliance on J.N.S. v. D.B.S., 302 N.J. Super. 525 (App. Div. 1997) is misplaced. In J.N.S., this court held that a short history of trivial annoyances, such as blocking the plaintiff's driveway for no longer than seven minutes, various insults and obscenities hailed at the plaintiff, and one instance of kicking over a garbage can were insufficient to establish either a past history of domestic violence or to allow the inference that any or all of the acts should be considered an act of domestic violence. Id. at 531. By contrast, in this case the trial judge accepted as credible plaintiff's recitation of a long history of physical and verbal abuse. The protracted nature of defendant's intimidating behavior, as evidenced by his journal, clearly distinguishes this appeal from the limited acts of bad behavior recited in J.N.S.

Defendant's contention that the trial judge found that he had assaulted plaintiff is without merit. The oral opinion demonstrates that the trial judge did not find that defendant assaulted his wife. Furthermore, the record also demonstrates that the final restraining order is limited to the acts of July 31 and August 18, both of which are outlined in the complaint filed by plaintiff. Although Judge de la Carrera referred to evidence of prior acts of domestic violence, those acts served only to place defendant's recent conduct in context. Defendant was notified on September 21, 2005, the first of the three days of trial, of the documents that plaintiff would seek to introduce in support of her application for a final restraining order. Notably, the documents were entries from defendant's journal that documented his relationship with plaintiff over several years. Furthermore, defendant was on notice as of August 31, 2005, that plaintiff would be able to refer to incidents between May 12, 2002 and August 18, 2005, virtually a month before the commencement of the trial.

We do, however, remand for further consideration of the portion of the final restraining order that prohibits any contact between defendant and his daughter. Unless a supplemental order has been entered in the context of this proceeding or the matrimonial proceeding, full consideration must be given promptly to the issue of defendant's access to his daughter.

Finally, given our disposition of this appeal, defendant's contention that he should have been awarded counsel fees because plaintiff initiated a proceeding under the PDVA in bad faith is without merit.

Affirmed.

 

While this appeal was pending, the trial judge issued an opinion granting counsel fees to plaintiff. We have not been provided with an order memorializing this opinion. Actually, it was not until the opinion was submitted on May 25, 2006, that it became apparent that this appeal was interlocutory pursuant to Rule 2:2-3. See Pressler, Current N.J. Court Rules, comment 2.2.1 on R. 2:2-3 (2007). Indeed, without entry of an order regarding the counsel fee award, a notice of appeal is premature under Rule 2:2-3. See Pressler, supra, comment 2.2.2 on R. 2:2-3. Because the matter has been fully briefed and our concern regarding the order barring defendant's access to his daughter, we grant leave to appeal nunc pro tunc.

(continued)

(continued)

11

A-1391-05T3

RECORD IMPOUNDED

 

September 27, 2006