PHILIP SINGER v. ROSE BECKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6290-04T56290-04T5

PHILIP SINGER,

Plaintiff-Respondent,

v.

ROSE BECKER,

Defendant-Appellant.

__________________________________

 

Submitted September 25, 2006 - Decided October 23, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FV-2517-05.

Warren F. Clark, attorney for appellant.

No brief was filed on behalf of respondent.

PER CURIAM

Defendant Rose Becker appeals from the entry of a final restraining order finding that defendant committed an act of domestic violence in violation of N.J.S.A. 2C:25-17 by making harassing communications in violation of N.J.S.A. 2C:33-4. We affirm.

The parties were married and divorced some number of years ago. Originally, defendant had residential custody of the children, but, in the years following the divorce, custody was transferred to the father, and the children have lived with him for quite some time. Over the years the relationship between the mother and the children significantly deteriorated.

Commencing in or about 2004, if not before, defendant began directing lengthy communications to her adult son and minor daughter. In those correspondences defendant accused plaintiff of molesting their daughter Sarah. Defendant included in her letters photographs of plaintiff and Sarah as a child. She contended that the photographs show parts of Sarah's anatomy that should never have been photographed. She accused plaintiff of sleeping with Sarah. Defendant implored her son to protect his sister. She warned her son that if he protected his father, he would be just as guilty as the father. She characterized one of the photographs of plaintiff and Sarah between the ages of five and seven as showing that plaintiff had placed his hand on her leg and his fingers on her vagina and that he also had his thumb on Sarah's breast. In another letter that defendant directed to Sarah, defendant told Sarah to ask her psychology teacher about the pitfalls of lying and abusive behavior, and that Sarah should ask her law teacher "about what happens to people who lie and get caught and use and abuse the courts, police and school systems for their own satisfaction." The latter remarks were clearly referring to plaintiff. In another document she wrote underneath a photograph of herself and her two children, "[d]on't know - they disappeared Sam, 2000 and Sarah 2002, and became the biggest liars in the world under the direction of one, Philip Singer, their wonderful, concerned, proponent of peace father. A job well done." In another letter that plaintiff wrote, she attached a letter from defendant to Sarah dated September 11, 1996, in which she stated that the letter "was written by Philip Singer who obviously was abusive to his daughter . . . ." She characterized the letter as sounding like plaintiff was talking about his girlfriend or lover and as the "kind of behavior [that is] in direct conjunction with the Power and Control Wheel that are used together as a system in violent relationships. This letter plainly describes Phase Three of the Cycle of Violence, which is the Loving and Contrite Stage - apologizing for any verbal abuse, etc." On May 20, 2005, defendant wrote a four-page letter to Sarah rehashing past grievances and concluding as follows:

I know the perfect award that you are going to receive for graduation - it's your specialty - in fact - you are an expert in it - you are going to receive an award in Academic Achievement for being the Best Liar that attended Hackensack High School in the class of 2005. Well, like I said - the apples don't fall far from the tree - do they!!! Well, eventually you will find out that lying is not a good thing.

Happy Graduation!!

On March 29, 2005, the day before Sarah's eighteenth birthday, defendant wrote a letter to Sarah in which she began, "I wish you a very Happy 18th Birthday and now that you are an adult or pretend to be I can say anything I want without getting into trouble and that I am harassing a minor." The letter was eleven single-spaced, typewritten pages full of recriminations and attacks upon Sarah and plaintiff, including accusing plaintiff of being a "con artist."

Another document sent to the children is a copy of plaintiff's autobiography, which defendant characterized as showing that plaintiff was "an abuser, a liar, a very convincing, charming person, a swindler, a con-artist and his [sic] very threatening nature of his personality." The appellate record contains many other documents from defendant that are rife with similar accusations.

The event that precipitated the filing of the domestic violence complaint was a letter that plaintiff received on June 10, 2005. The letter indicated that defendant had frozen plaintiff's 401K account. The plaintiff testified that he felt that the letters from defendant to the children were intended to abuse and harass him, because defendant knew that he would receive the letters indirectly, either by the children discussing the letters with him or showing them to him. Plaintiff testified to the types of letters that the children were receiving and stated that those letters harassed him because they were sending subliminal messages. In addition, when endorsing her alimony checks defendant would draw pictures of witches or smiley faces on the back of the check, which plaintiff testified directly harassed him. Plaintiff testified:

If you compare - I would like to submit this as well. that if my children are receiving letters about me, physically and sexually abusing them, as if they're under some kind of spell that they live with me, and there is constantly these allegations that I am doing something wrong, even though I don't speak to her, I don't communicate with her, I let her do her own thing. I send the check, religiously, every week. I've done it since the pendente lite. Never missed, even when she's called and said she's missed the check, or lost the check, I replaced the check. It is very hard for me, based upon the way she has behaved since the divorce to think that that is not sneering at me, and saying, ha, ha, ha, because - and it's hearsay, the children have heard - and she has said to the children, I am going to take your father down, and she is legally trying to bleed me, and she laughs. She was laughing in the hallway. She was laughing in the courtroom earlier.

Plaintiff begged the court to stop the harassment.

The parties' son then took the stand and testified that, over the six months prior to the hearing, the defendant sent a package to his place of employment full of pictures "and words and said things that I would have never imagined about my father and myself, and anything - and about my sister. Stuff that was extremely false." Samuel testified that he was upset, alarmed, and annoyed. He explained that his mother's letter

upset me in many ways. One that I remember very vividly is that he just - that my mother described and said - and accused my father of sexual abuse in this particular package. Showed pictures of where and how he . . . and me were together . . . and how his hands were placed as well as she was trying to incriminate my father on pictures with my sister involved,

at a time when the children were three, four, five years old.

The parties' daughter then took the stand. Sarah testified that in the last six months the communications from her mother made her feel "[l]ike my mother is trying to get to me. Like, she makes me feel like nervous about . . . what's going to happen next . . . ." She testified she was upset about her mother's accusations that her father had sexually abused her and stated that her father "has never, ever, ever even tried to touch me in any kind of way . . . ." She testified that the accusations were false and that they upset and annoyed her. She made it clear that she dreaded opening packages from her mother.

At the conclusion of the hearing, the judge placed his findings of facts and conclusions on the record:

There are allegations of harassment here. I've read the language of the harassment statute. Except as provided in this section, a person with a purpose to harass another if the party makes or causes to be made a communication anonymously, at extremely inconvenient hours, or offensively course language, or in any other manner likely to cause annoyance or alarm in Subsection 3, engages in any other course of alarming conduct, repeatedly committed acts, with purpose to alarm or seriously annoy the other person. I find that the defendant has an absolute right to contact the Vanguard [401K] people to find out about what took place in the divorce. I find it not to be harassment. It was not for the purpose to harass. It was the purpose for her to have financial information about the divorce.

. . . .

I find that there are letters to and from the children - to the children that make allegations about the former husband, and I think those letters, however, were sent, clearly, for the purpose to harass. Had there been any proof or truth to those matters 15 years ago, 12 years ago, ten years ago, eight years ago, the mother would have gone to the prosecutor. The mother would have gone to the Division of Youth and Family Services. The mother would have not sat back and ignored them. But, now, after a divorce, after a financial settlement that, maybe, is unfavorable to the former wife, she's doing these things, clearly, not to be altruistic, but for the purpose to harass both the children and the former husband. There's no question in my mind. There's no other reason.

I find the Vanguard has nothing to do with this. That's a red herring, and I think that Mrs. Becker has an absolute right to look into economics. But photos, allegations that are going back eight and ten, and 15, and 13 years ago are ridiculous. I find that clearly falls within the harassment section of the statute. I will enter a permanent restraining order barring the defendant from having contact with the plaintiff, and the children, Samuel and Sarah. No contact at 111 East Tracy Place in Hackensack. No contact at TG[I Friday's].

. . . .

I find that Mr. Singer's testimony was substantially more credible and believable, having a chance to observe the witnesses in the courtroom. I thought both of the children were candid, truthful and honest in their testimony, being more believable in their demeanor. It's not that I thought that Ms. Becker was lying. It's just that her - because people can see the same events from different points of view, I just felt that the other side was more understandable and believable to me today.

After carefully reviewing the record in light of the arguments presented, we affirm substantially for the reasons articulated by Judge Eugene H. Austin in his thoughtful oral opinion delivered on June 28, 2005. We add the following comments.

Judge Austin properly found that defendant's course of conduct evidenced a "purpose to harass." As our Supreme Court has noted, "[a] purpose to harass may be inferred from the evidence presented." State v. Hoffman, 149 N.J. 564, 577 (1997) (citations omitted). The term "purposely" is defined in the New Jersey Code of Criminal Justice as follows:

A person acts purposely with respect to the nature of his conduct or as a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. "With purpose," "designed" "with design, or equivalent terms have the same meaning."

[N.J.S.A. 2C:2-2(b)(1).]

"[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant, and reasonably credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Here, Judge Austin's conclusion that defendant's actions towards plaintiff were done with the "purpose to harass" him is fully supported by substantial, credible evidence in the record. It was her conscious act to engage in conduct of that nature, which she knew or should have known, would cause such a result. Clearly, defendant engaged in a "course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy" the plaintiff. N.J.S.A. 2C:33-4(c). "At its core, the 1991 [Prevention of Domestic Violence] Act effectuates the notion that the victim of domestic violence is entitled to be left alone." Hoffman, supra, 149 N.J. at 584.

Defendant knew that her continued and repeated contacts were seriously annoying and alarming to plaintiff. The type of obsessive conduct in which defendant engaged is illogical and must be regarded as potentially dangerous, warranting the entry of an order of protection. "Domestic violence is a serious problem in our society[,]" Cesare, supra, 154 N.J. at 397. "The fears of a domestic violence victim and the turmoil . . . he has experienced should not be trivialized." Hoffman supra, 149 N.J. at 586.

 
Affirmed.

(continued)

(continued)

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A-6290-04T5

RECORD IMPOUNDED

October 23, 2006