T.L. v. R.S., JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5413-04T15413-04T1

A-6421-04T1

T.L.,

Plaintiff-Respondent,

v.

R.S., JR.,

Defendant-Appellant.

________________________________________________________________

R.S., JR.,

Plaintiff-Respondent,

v.

T.L.,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 13, 2006 - Decided May 11, 2006

Before Judges Holston, Jr. and Gilroy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1983-05 and FV-02-1987-05.

Perrotta, Fraser & Forrester, attorneys for appellant R.S., Jr. in A-5413-04T1 (Donald B. Fraser, Jr., of counsel and on the brief).

Basile, Birchwale & Pellino, attorneys for appellant T.L. in A-6421-04T1 (Stephen F. Pellino, of counsel and on the brief).

PER CURIAM

These are back-to-back appeals. In a consolidated trial, the Family Part, on May 5, 2005, issued a Final Restraining Order (FRO) under the Prevention of Domestic Violence Act (DVA), N.J.S.A. 2C:25-17 to -33, against both appellants, R.S., Jr. (R.S.) and T.L. The FROs, from which both R.S. and T.L. appeal, memorialize the court's May 5, 2005 oral decision finding that both R.S. and T.L. had committed acts of harassment against each other as proscribed by N.J.S.A. 2C:33-4. We affirm the FRO against R.S. but reverse the FRO against T.L.

T.L. and R.S. entered into a short-term dating relationship in late December 2004, and continued the same until late March 2005. In October 2004, before the parties' dating relationship began, T.L. booked a March 24, 2005 trip to Florida to attend a disc jockey (DJ) convention. R.S. did not want T.L. to attend, fearing that she would use drugs or would share a hotel room with men.

According to T.L., while she was in Florida, R.S. would text message or telephone her at various times from 5:00 a.m. to 12:00 a.m. What began as arguments about the trip turned into name calling. R.S. called T.L. the following names: "whore," "nigger lover," "slut," "gold digger," and "irresponsible." His remarks to her went back and forth between "I love you" and "I hate you." T.L. testified, "Sometimes he would scream. Sometimes he was crying to me." On March 25, T.L. told R.S. to stop harassing her on vacation, because it wasn't the time or place. However, R.S. continued with his phone calls and text messages, 80% of which were threatening or harassing. When R.S. accused T.L. of cheating on him in Florida, he told her, if he ever found out who she was cheating with, he would kill them both. She did not believe he would actually act on that threat.

T.L. admitted that between March 24 and March 26, she initiated phone calls and text messages in response to R.S.'s messages to her, in order to calm the situation down. In those conversations, T.L. admitted to calling R.S. a "loser," "asshole," and "pathetic" because her "back was against the wall." When she arrived back in New Jersey on March 28, T.L. read a twelve page letter from R.S. taped to her door and called him at about 11:00 p.m. to end their relationship and to tell him to stop bothering her. After March 28, T.L. neither called nor text messaged R.S., but R.S. continued to text message her. According to cell phone records admitted into evidence, R.S. placed a total of ninety-five phone calls and/or text messages to T.L. from March 26 to March 31.

On March 31, R.S. appeared at T.L.'s residence. As a result of her refusal to open the door, R.S. rang the door bell continuously and telephoned her numerous times. T.L. and a friend, M.L., then exited her residence and entered T.L.'s car. R.S. knocked on the car door window and tried to open the car door. After T.L. backed out of the driveway, R.S. followed her. LaRosa's testimony corroborated T.L.'s version of the incident. Later that evening, R.S. left T.L. a text message that he was going to call the middle school where she was a special education teacher, and leave a message that he and she did cocaine together in Florida, in order to ruin her career.

The principal of the school where T.L. taught, testified that at about 3:30 p.m. on April 1, an unidentified male called and said, "there was a teacher that was doing drugs and it was a teacher in my school." The caller eventually identified the teacher as T.L.

R.S. testified that he was upset that T.L. was going to Florida from March 24 to March 28, 2005 without him. He was also concerned because T.L. would be staying in a room with three men, at a DJ convention known for drugs and sex. She told him she needed time with her friends and that nothing was going to happen. R.S. stated that he and T.L. had a history of telephoning each other five or six times daily and text messaged each other eight to ten times a day. They text messaged and telephoned each other on numerous occasions, without incident, on March 23, 24, 25 and 26, while T.L. was in Florida. It was not until March 27 at 4:00 a.m. that he and T.L. had an argument about the time of night T.L. had returned from a pool party. They exchanged a few telephone calls and text messages thereafter. At no time did T.L. tell R.S. that she considered his calls harassing.

However, on the evening of Sunday, March 27, T.L. text messaged R.S. that her friends were making fun of him and saying he was "pathetic" for talking to her so many times while she was on vacation. She told him if he didn't cool down a little bit, she might be pushed into a break-up. On Monday, March 28, they had a "very big argument." She told him her friends thought he was "pathetic," and that she thought he was "immature" for talking to her so much in Florida. Additionally, she called him a "loser," an "asshole" and a "jerk off." She told him that he didn't have enough money to hang-out with her and her friends and that she cheated on him in Florida with an ex-boyfriend. Because R.S.'s lack of money had been the subject of two prior discussions between them, R.S. admitted calling T.L. a "money hoarding whore." Although they argued in this way, there was no mention of a break-up.

On March 29, they spoke a couple of times and text messaged each other several times. T.L. knew he wanted to pursue a career in law enforcement. R.S. contends T.L. told him that "she has a lot of cop friends that if I didn't stop looking back at her past, that she could have them ruin my career by making phone calls." He believed her threat because her best friend is a Lodi police officer. In a later call on March 29, she broke-up with him, after which he told her "that if she was going to try to ruin my career to become a police officer that I would call her superintendent of the school and tell her about her drug problem."

R.S. testified that despite telling him their relationship was ended, she never told him not to call her again or that his communications were harassing. In one conversation, she told him that "she would have her black friends come over from the city and fuck me up if I tried to ruin her career." He believed the threat.

After receiving a telephone call on March 31, telling him to pick up his "stuff," he went to her house, rang the doorbell, and called her without success on his cell phone to tell her he was there. Thereafter, T.L. and M.L. walked right by him. R.S. walked to T.L.'s car, knocked on the window and she and M.L. drove away. R.S. then text messaged her, in anger, calling M.L. "a piece of shit" and "that I was done with this . . . I didn't even want her as a memory."

R.S. denied making a call to T.L.'s school and speaking to the principal but admitted he called the school to get the superintendent's name and telephone number, so that he could get back at her if she threatened his career. That testimony was contradicted by copies of text messages from R.S. to T.L. that corroborated R.S.'s intent to call the school and tell the principal that T.L. was a drug user.

On cross-examination, R.S. admitted that he called T.L. twenty-three times between 7:00 p.m. and 8:30 p.m. when he went to her residence on March 31. On re-direct examination, T.L. denied ever threatening to ruin R.S.'s career as a police officer. In fact, she thought he was going into real estate. She also denied that she threatened to have him "beat up."

On April 1, 2005, T.L. filed a domestic violence complaint and obtained a TRO against R.S., alleging harassment and stalking. On April 4, 2005, R.S. filed a cross-complaint for domestic violence against T.L. alleging harassment and terroristic threats and obtained a TRO. The matters were consolidated for trial. After two days of testimony, the trial judge determined that T.L. had not established stalking against R.S., nor had R.S. established terroristic threats against T.L. However, the judge stated:

I do find as to each party pursuant to the language of the statute, that each has established a case for harassment as against the other.

The purpose to harass, if a party makes or causes to be made a communication at extremely inconvenient hours or in offensive or coarse language. I find both of those elements to be proved. And in a matter likely to cause annoyance or alarm. And I find that they both caused annoyance or alarm.

I don't even have to get to Subsection 3 of the Harassment Statute, which talks about any course of alarming conduct of any acts as a catch phrase. There's no question in my mind this was a relationship that went bad. There was extreme language, inappropriate language, loss of self-control on both sides. And I'm going to enter mutual, permanent restraining orders as against each party as against the other.

. . . .

I find that the testimony on both sides - on both sides at times left some things to be desired.

I will find as to [R.S.'s] testimony where he said today that he threatened her on the 29th and said he'd call the school and tell about the drug problem. I don't find it to be a terroristic threat, but I find that to be clearly harassment. That was only done with the purpose to harass. There's no question in my mind. Why would someone say that to another party? That's not to say, Oh, we're not getting along or we're having a spat, because of a relationship.

By the same token, from [T.L.'s] own testimony early yesterday, I find she acknowledged that she called him an asshole and a loser. And it was not to compliment him. It was clearly to harass him. She wasn't saying that to make him feel good. There was clearly an intent there.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

Harassment is defined by N.J.S.A. 2C:33-4 in applicable part:

[A] person commits a[n] . . . offense if, with purpose to harass another, he:

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

. . . .

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.]

The trial judge found no stalking by R.S. and no terroristic threats by T.L. Our review, therefore, must determine whether the judge's findings of harassment against both R.S. and T.L. are supported by adequate substantial credible evidence. See Cesare, supra, 154 N.J. at 411-12.

Our decision is guided by the Supreme Court's interpretation of N.J.S.A. 2C:33-4 in State v. Hoffman, 149 N.J. 564 (1997). The court determined that each subsection of N.J.S.A. 2C:33-4 is "'free-standing, because each defines an offense in its own right.'" Id. at 576 (quoting State v. Mortimer, 135 N.J. 517, 525[, cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994)]).

The Court stated the purpose served by the harassment statute is:

to make criminal, private annoyances that are not entitled to constitutional protection. Thus, the substantive criminal offense proscribed by subsection (a) "is directed at the purpose behind and motivation for" making or causing the communication to be made.

[Id. at 576 (citations omitted).]

The Court made clear that a purpose to harass may be inferred from the evidence and that common sense and experience may be used in making that determination. Id. at 577.

The Court held:

We are satisfied that the Legislature intended that the term "annoyance" should derive its meaning from the conduct being scrutinized. . . . [s]ubsection (a) proscribes a single act of communicative conduct when its purpose is to harass. Under that subsection, annoyance means to disturb, irritate, or bother. . . . In contrast to subsection (a), which targets a single communication, subsection (c) targets a course of conduct. Subsection (c) proscribes a course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy an intended victim.

The purpose of subsection (c) is to reach conduct not covered by subsections (a) and (b). For example, if a person were to ring a former companion's doorbell at 3:00 p.m. on Sunday, flash bright lights into her windows on Monday at 6:00 p.m., throw tomatoes into her front door on Tuesday at 6:30 p.m., throw eggs on her car on Wednesday, and repeat the same conduct over a two-week period, a judge could find that subsection (c) has been violated. We do not imply by that example that five or more episodes are required to establish a course of alarming conduct. That determination must be made on a case-by-case basis. We conclude only that serious annoyance under subsection (c) means to weary, worry, trouble, or offend.

Thus, the difference between "annoyance" and "serious annoyance" is a matter of degree. That is a choice that the Legislature is free to make. . . . The Legislature has made the conscious choice that the level of annoyance caused by communications directed to a person with purpose to harass need not be as serious as that required by subsection (c). The Legislature no doubt felt that because of the widespread use of some forms of communication to harass people, the impact upon the intended victim should not have to be as severe to sustain a violation of subsection (a) as that required by subsection (c).

[Id. at 580-81 (citation omitted).]

The Court pointed out that in enforcing subsection (a) the focus is on the "mode of the speech employed[,]" i.e., "'not at the content of the offending statements but rather at the manner in which they were communicated.'" Id. at 583 (quoting State v. Finance Am. Corp., 182 N.J. Super. 33, 39-40 (App. Div. 1981)). The Court explained:

At its core, the 1991 Act effectuates the notion that the victim of domestic violence is entitled to be left alone. To be left alone is, in essence, the basic protection the law seeks to assure these victims. . . .

In determining whether a defendant's conduct is likely to cause the required annoyance or alarm to the victim, that defendant's past conduct toward the victim and the relationship's history must be taken into account. The incidents under scrutiny must be examined in light of the totality of the circumstances.

[Id. at 584-85.]

Applying the principles espoused in Hoffman to the finding made by the trial judge here, we are convinced that the evidence fully supports the judge's finding of harassment by R.S. The judge stated, "[R.S.] said today that he threatened her on the 29th and said he'd call the school and tell about the drug problem. . . . I find that to be clearly harassment." The court's finding of that single act of harassment is supported by the total number of calls and text messages initiated by R.S. to T.L. and by their increasingly negative tenor when it became clear that T.L. had ended the parties' relationship and told him to leave her alone. The communications in which R.S. threatened T.L. that he was going to inform her school principal that she was involved in drug use, corroborated by the text messages of April 1 threatening to do so and the testimony of the principal concerning the telephone call he received at about 3:00 p.m. on April 1, permitted the court, in our judgment, to infer that the threat of the communication to the school principal was for the purpose to harass.

The threat to call the school and the placement of the call, thereafter, are precisely the types of private annoyances that the DVA was designed to protect against. The evidence fully supports the judge's finding that the motivation behind R.S.'s threat to contact T.L.'s school principal was to disturb, irritate and bother her.

The judge specifically found that R.S.'s testimony, which T.L. denied, that she would ruin his potential career in law enforcement and bring friends from the city to beat him up, which he alleged were terroristic threats, were not proved. The judge found, however, that T.L.'s calling R.S. an "asshole" and a "loser," because not intended as a compliment, was clearly to harass him.

The name calling, which the judge found to be harassment, was largely in response to the derogatory names R.S. called T.L. The Supreme Court pointed out in Hoffman that the harassment statute is directed not at the content of the offending statements but rather at the manner in which they are communicated, and that the essence of the law's protection is that the victim of domestic violence is entitled to be left alone. Id. at 583-84. At the time the name calling was being exchanged between R.S. and T.L., the relationship between the parties, although fragile, had not been broken. R.S. never told T.L. to stop bothering him. In fact, he was intent on assuring that they continued to be in constant communication. We are convinced, therefore, that the name calling by T.L., which the trial judge found to be harassment, was in the total context of the events in issue "'domestic contretemps'" rather than a "'matter of consequence.'" N.B. v. T.B., 297 N.J. Super. 35, 40 (App. Div. 1997) (quoting Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995)).

Accordingly, we affirm the court's finding of domestic violence against R.S. We reverse the court's finding of domestic violence against T.L. and remand for the entry of an order vacating the FRO issued against her.

Affirmed in part; reversed and remanded in part.

 

The text messages are found in exhibit 20a in the appendix to T.L.'s brief.

(continued)

(continued)

15

A-5413-04T1

RECORD IMPOUNDED

May 11, 2006