JULIA A. BRIERLEY v. ARTHUR L. BRIERLEY, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3356-04T53356-04T5

JULIA A. BRIERLEY,

Plaintiff-Respondent,

v.

ARTHUR L. BRIERLEY, JR.,

Defendant-Appellant.

________________________________

 

Submitted: January 10, 2006 - Decided February 2, 2006

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Sussex County, FV-19-320-05.

Theresa A. Markam, attorney for appellant.

Julie A. Brierley, respondent, pro se, did not file a brief.

PER CURIAM

Defendant Arthur Brierley appeals from a Final Restraining Order (FRO) entered against him under the Prevention of Domestic Violence Act, N.J.S.A. 2C: 25-17 to -25 (DVA), in favor of his former wife, Julia. The court found, as the predicate offenses, criminal mischief, N.J.S.A., 2C:17-3, and harassment, N.J.S.A. 2C:33-4a. On appeal, defendant contends his conduct on January 3, 2005 involved only a minor altercation over parenting issues and was not sufficiently egregious to justify the issuance of a domestic violence restraining order. We disagree and affirm.

The parties were divorced on December 15, 2004, after having been married for about twenty-two years. Their daughters, Lauren and Erica, were eighteen and eleven at the time, and lived with plaintiff, the custodial parent, in the marital home.

In order to place the January 3, 2005 incident in context, it is necessary to recite the longstanding history of domestic violence that permeated the parties' marriage, as testified to by plaintiff. Plaintiff detailed at length the history of physical violence beginning in November l982, when the parties repeated their wedding vows in a formal ceremony. In the presence of her father, defendant grabbed her by the shoulder, pinned her to the wall, and started screaming and yelling at her, hurting her shoulder and neck. In l983, plaintiff arrived late to defendant's office in Times Square in Manhattan, where they were meeting to attend a friend's party. In anger, defendant again pinned her to the wall, lifted her up, threatened to throw her out the l4th or l7th floor window, and held her there for a few minutes. They then went to the party; she left her coat on to cover the hand prints on her neck. A few years later, plaintiff received a call at work that her mother had died. When she began crying on the commuter train home, defendant slapped her in the face in front of the passengers, leaving a hand print on her cheek, and threatened to hit her again if she did not stop crying.

Plaintiff further testified to defendant's frustration with her sickness and sensitivity to smells during her pregnancies. She recounted how defendant beat her up during both pregnancies, including punching her in the stomach during the fourth month of her pregnancy with Erica. She testified further to an incident on January 30, 2001, during a discussion about health insurance, in which defendant got angry and punched her in the nose with a closed fist. She turned her head to the side to minimize the impact but still sustained a lump on her nose and black and blue marks around her eyes, necessitating medical care. Plaintiff further explained defendant's continual threats of violence:

But then ever since then, anytime anything's come up and there's been any question, he has continuously said oh, I should hit you harder, next time I'll hit you[] harder. And -- and I'll make sure that -- that I hurt you. And -- and, you know, if -- if I want to hurt you, I really can hurt you. Do you know how many times I've heard that since then, about 500.

Plaintiff also testified about control issues and other incidents of mental abuse by defendant.

In January 2003, following a domestic violence cycle spanning two decades, plaintiff left defendant in the marital home and fled to a domestic abuse (DASI) shelter with her teenage and pre-teen daughters, where they remained for three and one-half months. Plaintiff further testified how defendant's abusive conduct toward her continued after the separation and after the divorce. When plaintiff stopped by the marital home with Lauren to pick up her viola in March 2003, defendant stormed out, and began banging and pounding on plaintiff's car door windows, while screaming, yelling and cursing at her. Plaintiff explained that a few days later, on her way to a four-way meeting in her attorney's office,

I saw that my husband was walking ahead of me.

And he turned around and started coming toward the car and of course, I knew he was furious at me and I was afraid [of] him. So I stayed in my car. I locked the car doors. I rolled down the window a little bit and he was like, well I have something to give you and he was like shaking something in the air and I said, well, I don't know what it is, you can give it to me in there or whatever.

And -- I don't know, he started [to] scream -- he screamed again. He started walking away and he took the thing that he had and he threw it on the ground . . . at the car, actually, . . . and walked away. So --

But he could have waited to give it to me in the four way meeting. . . .

Plaintiff further testified that from the court date on December l5, 2004, when the parties were divorced, every time she saw or talked to defendant, the situation escalated. She recounted instance after instance of a pattern of abusive behavior by defendant directed at her, often in the presence of the children, involving accusations, confrontations, "mommy bashing," obscene language, anger and screaming, slamming doors and continued attempts to exercise control over her life.

Defendant asserted a general denial to plaintiff's specific allegations of domestic violence. He responded that some of the items were "far fetched." He denied the allegation of "kicking a pregnant woman," noting that "there would have been an incident [report] . . . if there were any real issues." Defendant acknowledged the parties' relationship had been strained for quite some time, stating, "I'm guilty of being married to a woman I do not like for 20 years" and "our divorce has been going on probably 10 years, but really two." When asked by his attorney if there had been a pattern of behavior on his part like there was on January 3, he responded:

No. I wouldn't say there's been any real violent pattern. There -- there -- we've had a consistent pattern -- or at least -- of making life difficult for one another. Julie revels in making things difficult.

Plaintiff, who was pro se, unsuccessfully sought to cross-examine defendant about his prior conduct, stating: "Somehow you've avoided all things that have gone on in the past." When told she was required to ask defendant a question, not make an editorial comment, plaintiff informed the court she "[couldn't] talk to him."

The incident that served as the basis for the complaint occurred at about 6:30 p.m. on January 3, 2005. Defendant had just brought Lauren, a college freshman who was a microbiology major, back from a "shadowing" session with several doctors. Defendant entered the former marital home and followed Lauren into the kitchen, where plaintiff was seated. Lauren announced she was planning to shadow the doctors two more days that week. Plaintiff expressed her concern about what Lauren needed to accomplish before she and her boyfriend drove back to college in Michigan that weekend. Defendant became irate because he felt plaintiff was interfering with his plans to take Lauren to the shadowing sessions.

Plaintiff testified in explicit detail how defendant began cursing, screaming and yelling at her in front of their daughters, to the point where plaintiff asked him to leave and the girls were crying and "started yelling at him to please leave and go." Plaintiff threatened to call the police, and defendant made a comment that it was his house, too, and he was entitled to remain. Lauren was able to steer her father out of the kitchen and escort him to the front door. According to plaintiff, while the girls were trying to get him out the door, "[h]e was swinging his arms and screaming and yelling . . . and ranting and raving." Defendant walked out and slammed the front door, but returned two seconds later. Defendant entered the hallway, screaming and yelling obscenities. He pushed Lauren aside, picked up Erica's backpack that was filled with books, and in anger threw it towards Erica, where it slid across the floor and landed at her feet. Defendant then started screaming about his boats, an unresolved issue of personal property between the parties. He walked towards plaintiff, grabbed a stained glass star that was hanging from the ceiling, and threw it to the floor causing several pieces to break off. Defendant had bought the star the past November for Erica to give plaintiff as a birthday present. During this incident, defendant kicked the Christmas tree stand and continued yelling, "girls, look at your [mother]-- you know, she's a fucking bitch, she's a selfish bitch, you know, everything, you know, she ruins everything, you know."

Plaintiff testified that the girls were screaming and crying and were very upset. She again requested that defendant leave, to no avail. She explained that she did not even get up from the chair because she "learned a long time ago that - - that you don't get in his face." Plaintiff testified she was alarmed by defendant's shouting and considered his conduct that evening to be threatening. Defendant did not leave the house until plaintiff arose from the chair to call the police.

Lauren testified telephonically by speaker phone on the record that she and her mother had a brief conversation about shadowing and her obligations before she returned to college. In response to questioning by the court, she recounted that her father then

like flipped out. Like he was really, really angry and he voiced that he didn't think it was fair that I had this opportunity and that she wasn't letting me take it. He just got really, really angry. And then he started bringing out past things. . . .

. . . .

A. Well, he got like -- he-- first of all, he came closer to her and he started screaming really loudly. And he had a really scary look on his face. It was like an I'm going to kill you look. And he was kind of waving his fists a little bit and my sister and I had both asked him to just stop and leave, because like it's kind of scary when he gets that angry, And --

Q. [court]. So you've -- you've seen him that way before?

A. Yes, I have.

Q. And you can tell that this was a period of anger for him?

A. Oh, yes, definitely.

Lauren corroborated her mother's version of the events, including defendant's escalating anger, screaming, obscene name-calling and disrespect towards plaintiff, shaking of his fists, refusal to leave after repeatedly being asked by plaintiff and the two girls, storming back into the kitchen, and grabbing the hanging Victorian glass star and throwing it "full force into the ground" so a piece became embedded in the linoleum and other pieces broke off. Lauren's recollection of the timing of the events differed slightly from plaintiff, as she testified that defendant then threw Erica's backpack, plaintiff stood up and threatened to call the police, and defendant left. Lauren confirmed that Erica was "really upset at the whole incident." Lauren testified that she had "been afraid of [defendant] on numerous occasions," which she discussed with counselors while she was in the domestic violence shelter. Lauren further testified that she was "upset at the reaction that followed, that there was screaming, and honestly my father really scared me. . . [It] should have been something between me and my mother."

Defendant admitted he came to the house on January 3, angry at plaintiff for her negative attitude at Christmas, several outstanding property division issues, and longstanding disagreements on parenting issues. He admitted his intention in walking into the house "was to scold my wife in front of my children . . . Scold her to let my children see that I objected to the way my wife has been behaving. . . That she, my wife, was stepping across the line," and to put her in her place. Defendant admitted he was angry at plaintiff for interfering with his plans to take Lauren for another shadowing session, and was loud and yelled and cursed at her in front of their children. Defendant also admitted he purposely took the stained glass star, "which [he] knew she treasured," and "spiked [it] -- at [his] feet" as "kind of an old testament thing . . . an eye for an eye" in retaliation for a boat he treasured that she had given away.

At the commencement of the trial, defendant had moved to dismiss the complaint because the only offense checked off was "criminal mischief," to which defendant had argued the property destroyed was marital property. The court sua sponte amended the complaint to include harassment as an alternative violation by defendant. Defendant does not dispute on appeal the court's finding, following trial, that the star was a gift to plaintiff, and was thus not marital property. The court found defendant's intentional spiking of the glass star to the floor that broke off pieces of it, satisfied the elements of the predicate offense of criminal mischief, i.e. "purposely or knowingly damaging tangible property of another." N.J.S.A. 2C:17-3. The court alternatively found defendant committed the offense of harassment under N.J.S.A. 2C:33-4a, in that calling plaintiff such obscenities as "fucking bitch" in front of the parties' daughters under the circumstances constituted a "communication in offensively coarse language." Moreover, defendant's refusal to leave the house when repeatedly requested to do so "annoyed" her. The court further found a clear intention to harass based on defendant's own testimony of his plans to scold plaintiff, berate her and teach her a lesson.

On appeal, defendant contends his behavior on January 3 was insufficient to justify the issuance of an FRO on either harassment or criminal mischief grounds "in light of the [DVA's] legislative intent, the lack of finding of a history of domestic violence, and the case law involving similar situations." Defendant characterizes this incident as an argument as to how plaintiff was behaving toward the children, especially her interfering with an activity that defendant had arranged, and in so doing, her generally belittling of defendant as a parent. He acknowledges he used coarse language and broke plaintiff's ornamental star when angrily expressing his disagreement over her "unreasonable behavior" toward their children. According to defendant, the issuance of an FRO in this case "is an unfortunate example of the trivialization of the [DVA] . . . [which] is not designed to interdict all forms of unpleasant exchanges between parties." Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004).

Defendant analogizes the present case to those instances which we found insufficient to constitute domestic violence and reversed the issuance of an FRO. In Bresocnik, the parties dated for about six years, with no indication of any hostility or violence during that time. 367 N.J. Super. at 182. Their marriage was annulled in a matter of days, the parties lived in separate states and defendant had no actual contact with plaintiff. We held a letter delivered to plaintiff's workplace by an investigator about six months later, in which defendant expressed love and regret for the loss of their relationship, did not violate the harassment statute to warrant a restraining order. Id. at 182-83. In Chernesky v. Fedorczyk, 346 N.J. Super. 34 (App. Div. 2001), we held an admission by defendant that he stood in his former wife's doorway and yelled at her regarding their child's behavior not to constitute harassment. In J.N.S. v. D.B.S., 302 N.J. Super. 525, 527-28 (App. Div. 1997), we held the exchange of vulgarities on numerous occasions and inappropriate expressions of anger, including kicking the garbage can in the presence of the parties' young children, not to constitute harassment. In Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995), we held a statement by a husband that he would "bury" his wife, after she announced her intention to obtain a divorce, not to constitute harassment as a predicate offense for the issuance of an FRO. In that case, there was "absolutely no history of threats, harassment, physical or mental abuse or violence between [the] parties, who were on the threshold of dissolving their marriage when a conflict over property occurred." Id. at 56.

What defendant completely ignores is that the January 3, 2005 incident was not "an isolated aberrant act," Peranio, supra, 280 N.J. Super. at 54, nor was it a garden variety spat over parenting, which could be classified as "domestic contretemps." Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995). The incident has to be placed in the context of defendant's prior history and conduct towards plaintiff. Plaintiff provided a detailed recitation of the physical and mental abuse she endured from defendant over the two decades of their marriage, culminating in her three-and-one-half month stay in a DASI shelter with her preteen and teenage daughters beginning in January 2003. She also testified at length about defendant's continued attempts to exercise control over her even after their separation and divorce, his violent temper and her responses, i.e., she remained seated when he "flipped out" on January 3, 2005 because she learned a long time ago not to "get in his face", and defendant's escalating behavior following the divorce. The parties' eighteen-year-old daughter confirmed that she had seen her father angry on numerous occasions and had been afraid of him in the past.

Defendant generally denied plaintiff's litany of prior acts of domestic violence in a rather cavalier fashion, denied there was "any real violent pattern," and essentially blamed plaintiff for the problems in their marriage and the issues involving their children. He did not dispute the testimony about plaintiff and the girls' presence in the DASI shelter. Although it is unfortunate the trial judge did not make a finding of a history of domestic violence or place defendant's behavior on January 3, 2005 in the context of such prior history, the record clearly supports a finding of a longstanding pattern of domestic violence and anger directed at plaintiff.

We then turn to the events of January 3, which defendant does not dispute. In fact, he candidly acknowledged his intent in entering the house that evening, i.e., to scold plaintiff in front of their daughters by using obscene language in order to humiliate her, because he felt she had belittled him as a parent. But he did not stop there. Rather, his anger towards plaintiff intensified, and his conduct escalated. It is clear from the record that defendant's behavior was out of control that evening. We can best picture the incident through the eyes of the parties' eighteen-year old daughter, who testified that her father "flipped out," "got really, really angry," "started bringing out past things," "came closer to [her mother] and he started screaming really loudly[,]" "had a really scary look on his face . . . like an I'm going to kill you look" and began waving his fists in anger.

Moreover, defendant does not dispute that plaintiff and his daughters begged him to leave the house several times, that he came right back in after Lauren escorted out after his first outburst, and that he only left after he broke the star and plaintiff finally arose from her chair to call the police. Nor does he dispute that he intentionally destroyed in a violent and vindictive manner a gift from Erica that plaintiff had treasured. Finally, there is no doubt the record overwhelmingly supports a finding that plaintiff, as well as the parties' eighteen and eleven year old daughters, were extremely upset and frightened by defendant's conduct that evening. Thus we are satisfied the record supports a finding by a preponderance of the evidence of the elements of criminal mischief under N.J.S.A. 2C:17-3 and harassment under N.J.S.A. 2C:33-4a.

Furthermore, considering the previous history between the parties, we are convinced that defendant's conduct on the evening of January 3, 2005 was not an isolated instance of domestic contretemps taken out of context or a mere unpleasant exchange between the parties over parenting issues. Defendant came into the house with ill-will, involved himself in a discussion that was between Lauren and her mother and exhibited visible signs of anger and aggressive behavior towards plaintiff. When defendant had the opportunity to extricate himself from a volatile situation, he re-entered the house and the situation escalated through no fault of plaintiff. In view of the provisions of the DVA and its broad legislative intent, we are convinced there was sufficient credible evidence in the record that defendant committed an act of domestic violence against his former wife warranting the issuance of an FRO. Rova
Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

 
Affirmed.

We note Lauren's testimony that she felt partly responsible for the incident because she knew defendant was coming inside the house with her, although she did not think he was going to overreact as he did, and had she known, she would have told him not to come and would have taken the risk of losing the opportunity to shadow a doctor. The Family Part judge assured her, in the presence of both parties, that she had no responsibility for the incident merely because the shadowing discussion precipitated her father's conduct. We reiterate this testimony to underscore the unfortunate effect that domestic violence directed towards a parent has on a child.

The DV complaint is not contained in the record on appeal.

(continued)

(continued)

17

A-3356-04T5

RECORD IMPOUNDED

February 2, 2006