DAWN LOVELAND v. PAUL HAUKE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5873-05T15873-05T1

DAWN LOVELAND,

Plaintiff-Respondent,

v.

PAUL HAUKE,

Defendant-Appellant.

___________________________________________________________

 

Submitted January 9, 2007 - Decided May 2, 2007

Before Judges Payne and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Ocean County,

Docket No. FV-15-002411-06.

Paul Hauke, appellant pro se.

Resnikoff, Resnikoff & Witek, attorneys for

respondent (Robert L. Witek, II, on the

brief).

PER CURIAM

Defendant Paul Hauke appeals from a final restraining order entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Defendant claims that the trial court failed to find that any of his actions were done with a purpose to harass plaintiff, Dawn Loveland, and that his conduct cannot be considered an act of domestic violence. We reverse and remand for a new trial.

Plaintiff testified the parties began their romantic relationship in January 2004, but the relationship ended in May 2006 when she asked defendant not to call her or come over anymore. In her complaint, plaintiff alleged that defendant had harassed her on June 18, 2006, at approximately 9:30 p.m., and she stated she was afraid of him: "Defendant was calling victim['s] home yelling and cursing at victim. Defendant called home tonight about seven times. When victim stopped answering phone defendant kept driving past the house. Defendant had been at victim[']s daughter[']s school. Victim is in fear of [d]efendant." Plaintiff stated in her complaint there was no prior history of domestic violence and there were no weapons involved in the alleged incident, but she also indicated that defendant has "a criminal history."

We have previously noted that "it is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint." L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999); see also H.E.S. v. J.C.S., 175 N.J. 309, 325 (2003) ("'It constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.'") (quoting J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998)). But we have also noted that "[a] due process violation can easily be avoided by granting a party a reasonable adjournment if confronted by new allegations at the time of trial in order to afford the party an ample opportunity to meet the charges." Pazienza v. Camarata, 381 N.J. Super. 173, 185 (App. Div. 2005). In this case, however, plaintiff, who sought to rely on previously unspecified incidents of harassment, did not seek and was not granted a continuance to amend her complaint, and the record confirms that, instead, the court confined her testimony to the "four corners" of her complaint:

Q. Okay. Did you confront Mr. Hauke about him showing up at your house?

A. Yes.

Q. What did you say to him?

A. I asked him why he parked in front of my house when I was at work, and that made my children feel very uncomfortable and I didn't want him doing that.

Q. And did he respond to you?

A. He denied it, said he just came over to get the ladder.

Q. Okay. What happened then?

A. Then he continued to call. . . . I told him that I wanted to end the relationship. He continued to call my cell phone. If I didn't pick up, he repeatedly left very long messages. Eventually he said if I wasn't gonna pick up my cell phone, he was gonna --

[DEFENDANT'S ATTORNEY]: Your Honor, I've got to object. This is far beyond the contents of the [c]omplaint.

THE COURT: Sustained. Stick within the four corners of the [c]omplaint, [c]ounsel.

Q. Did there come a point in time when -- did the defendant continue to follow you?

A. There were times when he used to show up. When I went to get my hair done, . . . after I told him I didn't want to see him, he showed --

[DEFENDANT'S ATTORNEY]: Your Honor, I object again.

THE COURT: Sustained for the same reason the last objection was sustained.

There was no physical contact between the parties on June 18, 2006, and plaintiff acknowledged on cross-examination that there were no allegations in her domestic violence complaint that defendant threatened her "in any way." Nevertheless, plaintiff insisted she was very fearful of defendant, but she never explained why she was afraid of him:

Q. Okay. Are you fearful of Mr. Hauke?

A. Very.

Q. Okay. How many times, to your recollection, on the evening of June 18th of 2006 did Mr. Hauke call either your cell phone or your house?

A. From June 18th, on, or May 8th?

Q. No, just on the evening of June 18th.

A. Between my cell phone and the house, probably five times.

Q. And how many phone calls did you take; just the two that you described?

A. The two.

Q. Did you have occasion to physically observe Mr. Hauke on the evening of June 18th?

A. Once I saw him drive down the street and make a U when he saw that I was on the front porch.

Q. And this was on the evening of June 18th?

A. Earlier that day.

. . . .

Q. Do you recall telling the police what had happened that night?

A. Yes.

Q. Do you recall telling the police that the defendant kept driving past the house?

A. Yes.

Q. Why did you give that testimony?

A. Because it was my understanding he continues to drive down the street all day long.

[DEFENDANT'S ATTORNEY]: Objection, Your Honor.

THE COURT: Sustained.

. . . .

Q. Do you recall indicating to the police officers who took the testimony initially that there was no history, no prior history of [d]omestic [v]iolence?

A. Yes.

Q. And why did you do that?

A. I wasn't -- I did not understand that this was domestic violence. I just wanted a [r]estraining [o]rder. I was afraid.

[PLAINTIFF'S ATTORNEY]: No further questions, Judge.

At the end of plaintiff's case, defendant's attorney argued that the temporary restraining order and the domestic violence complaint should be dismissed because there was insufficient evidence that defendant acted with a purpose or intent to harass plaintiff. The trial court denied the motion, however, concluding that a reasonable fact finder could conclude, "based upon the totality of the circumstances," that "defendant's purpose was to seriously annoy and/or alarm the plaintiff."

Defendant acknowledged he placed three telephone calls to plaintiff on June 18, 2006, but he denied the calls were made for the purpose of harassing, annoying, or alarming plaintiff. According to defendant, he drove to plaintiff's home to ask her if she wanted to "go for a walk on the boardwalk," but because he also wanted to avoid plaintiff's daughter, he was not going to stop if the daughter was there:

Q. On the evening of the 18th did you have occasion to go to the plaintiff's home?

A. Yes.

Q. And did you go into the home?

A. No.

Q. What did you do?

A. I drove past the home because I wanted to see . . . if she was home. If she was home, I was gonna ask her to go for a walk on the boardwalk, which I talked to her about the day before.

Q. Okay.

A. If her daughter -- if her car, the car that the daughter used was there, I wasn't gonna stop because the daughter, there's a lot of conflict in this relationship between the daughter and the mother, and then also --

Q. Why would you not stop if the daughter's car was there?

A. Because Dawn had asked me, if the daughter is home, not to stop at the house.

Q. And why is that?

A. Because there's a conflict between the mother and daughter about her having a boyfriend, and it's been that way since we started dating.

Defendant testified that after he drove past plaintiff's house, a car driven by plaintiff's daughter followed him. According to defendant, "she followed me, staying right behind my bumper, about a foot behind me, two feet, whatever." After stopping at a 7-Eleven, defendant testified he placed a call to plaintiff:

Q. And when was that call placed?

A. Nine, thirty-three p.m.

Q. And how do you know that it was 9:33?

A. Because it's on the phone.

Q. And what was the nature of the conversation when you called?

A. I told her that I was being followed by her daughter, her daughter almost ran into the back of my car, and I thought that that was, you know, a terrible thing to have done.

And when she tried to defend her daughter, "Well, you know, you rode by the house, and my daughter, you know, she's got a problem with boyfriends and she's a problem with me, and that's the way she is."

Q. And how long did this phone conversation last?

A. Oh, I think it lasted less than a minute, 52 seconds.

Q. And how do you know that?

A. It's on my phone.

Defendant testified: "I hung up the phone on her the first time. I felt bad about it, so I called her back." According to defendant, he apologized for hanging up, but the call was dropped, so he called plaintiff on her home phone. During this call, defendant testified plaintiff's daughter got on the phone and "somebody started cursing at me, calling me names. I don't know if it was Dawn or the daughter." When plaintiff's daughter testified, she admitted she followed defendant, and she also admitted she listened to at least a portion of defendant's telephone conversation with her mother:

Q. Regarding the night of the 18th, you stated on direct that you heard the defendant on the phone, upset, and said something about you following him; is that correct?

A. He wasn't upset. He was angry.

Q. About you following him; is that correct?

A. (No verbal response)

Q. And this conversation took place after you had followed him, as you stated?

A. Yes.

Q. Now, when you followed him, your boyfriend was with you; is that correct?

A. Yes.

Q. And you followed him --

A. For .3 miles.

Q. I'm sorry?

A. For .3 miles. I measured it in my car.

Q. For .3 miles. And that was a result of Mr. Hauke driving past your house?

A. He kept denying that was him to my mom. So --

Q. And this was a result of him driving past your house; is that correct?

A. Yes.

Q. On the evening of the 18th when you picked up the phone Mr. Hauke didn't make any threats against your mother; did he?

A. Yeah -- well, he threatened that if I followed him again, he would do something. But I didn't hear what he said.

Q. He didn't make any threats against your mother that evening; did he?

A. I'm not sure. I couldn't tell you.

Q. You didn't hear any threats made against your mother that evening?

A. No. He was just cursing at her. I wasn't really understanding what he was saying. He was just screaming.

According to defendant, there was no prior history of domestic violence, he never threatened or harassed plaintiff, and she had no reason to fear him. Nevertheless, the trial court determined plaintiff's testimony was credible, and defendant's testimony was not credible:

He denies partially in his telephone conversations saying all of the foul words attributed to him by the plaintiff. But interesting enough, not only does he go by that driveway -- and the [c]ourt believes the testimony of the plaintiff and her daughter -- two, perhaps three times, but that he concedes after he drove past the home he saw [the daughter] following him. He then says he called the plaintiff on her cell phone at 9:33 p.m. -- he was very precise about that -- and he told the plaintiff he was being followed by her daughter. And he testified he started to tell the plaintiff about the problems that her daughter had. He then testified that he called a second time to the plaintiff on the plaintiff's cell phone, pretty much said the same thing. He then testified he called her a third time on her land line and that the plaintiff picked up. This is a compulsive defendant.

The [c]ourt finds that this relationship was over. He was so told. It finds the plaintiff's testimony in that regard credible. It finds the defendant's testimony in that regard not credible. The [c]ourt observes based upon the demeanor of the defendant and the way he testifies that he's compulsive and that he's a man who was instructed the relationship was over and can't let go. Thus, he continued to harass and stalk this plaintiff, which the [c]ourt so finds.

In sum, the [c]ourt does not believe him. It believes the plaintiff's testimony for the reasons set forth on the record.

The [c]ourt further finds that it was the defendant who placed into motion all of the events which occurred on the evening of 6/18/06. It was the defendant who admittedly drove past the house -- which the [c]ourt finds three times. It was the defendant who concedes that he placed three separate telephone calls to the plaintiff. He tries to explain that he was being hounded by the plaintiff's daughter who was following him. Even if that were the case, it was the defendant who placed into motion the circumstances which occurred.

The [c]ourt finds that this defendant is a controlling personality, very possessive, and the [c]ourt disbelieves everything he says.

The [c]ourt finds based on all of these circumstances that what he did . . . on the evening of 6/18 constitute[s] behavior which reasonably seriously annoyed and alarmed the plaintiff, and objectively based on these facts such serious annoyance and alarm was reasonable under the circumstances.

Therefore, the [c]ourt finds the plaintiff has proven her case by a preponderance of the evidence, and finds that the defendant indeed harassed the plaintiff on 6/18/06. Harassment is an act of domestic violence. The [c]ourt thus enters a Final Restraining Order . . . .

We begin our analysis by emphasizing that "[d]omestic violence is a term of art which defines a pattern of abusive and controlling behavior injurious to its victims." Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995); see also Corrente v. Corrente, 281 N.J. Super. 243, 246 (App. Div. 1995). The intent and focus of the Legislature in enacting the Prevention of Domestic Violence Act was to address serious abuse between individuals governed by the act. Corrente, supra, 281 N.J. Super. at 247. One sufficiently egregious action, however, may constitute domestic violence, even in the absence of a history of abuse between the parties. Cesare v. Cesare, 154 N.J. 394, 402 (1998); McGowan v. O'Rourke, ____ N.J. Super. ____ (App. Div. 2007).

Plaintiff's domestic violence complaint alleged harassment as the predicate offense. In pertinent part, the harassment statute provides:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

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;

. . . .

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 (emphasis added).]

The Supreme Court and this court have addressed the issue of harassment through communications on several occasions. In doing so, the Court distinguished the purpose to harass prohibited by subsection (a), which "targets a single communication," and subsection (c), which "targets a course of conduct." State v. Hoffman, 149 N.J. 564, 580 (1997). Moreover, the purpose of a single comment need only be to harass, whereas, the purpose of a course of conduct must be to cause alarm or serious annoyance. Id. at 580-81. "Subsection (c) proscribes a course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy an intended victim." Id. at 580. Although the court did not specify which subsection was implicated by defendant's conduct, it determined plaintiff was "seriously annoyed or alarmed" by defendant's cumulative conduct. Thus, we infer that the trial court focused on subsection (c).

We recognize that a trial court's findings are binding on appeal when supported by "adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. In addition, because a trial court sees, hears, and observes the witnesses, it is in a better position than a reviewing court to evaluate their credibility. Id. at 412. Nevertheless, in this case, the trial court did not specifically find defendant acted with a purpose to alarm or seriously annoy plaintiff, and it is not clear defendant's efforts to speak with plaintiff after he had been followed by her daughter provide a valid basis for inferring a purpose to alarm or seriously annoy. See Hoffman, supra, 149 N.J. at 577 (noting that purpose to harass may be reasonably inferred when there is no legitimate purpose for defendant's actions).

The Domestic Violence Act specifically directs the court to consider any previous history of domestic violence between the parties. N.J.S.A. 2C:25-29(a)(1). "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." Hoffman, supra, 149 N.J. at 585. But that did not happen in this case. Because plaintiff indicated in her complaint there was no prior history of domestic violence, she was not allowed to testify regarding events that took place prior to the June 18, 2006, incident. However, when plaintiff was asked during the trial why she told the police officer who took her complaint there was no prior domestic violence history, she testified that she "did not understand that this was domestic violence." Plaintiff also testified she was very fearful of defendant, but she was not given an opportunity to explain the reasons for her fear. Although the court concluded plaintiff was a credible witness, there was insufficient evidence to fully evaluate "[t]he existence of immediate danger to person or property" as required by N.J.S.A. 2C:25-29(a)(2).

Despite our usual deference to the findings of a Family Part judge in a domestic violence trial, we are convinced this matter must be remanded for a new trial, because the trial court failed to determine whether defendant acted with a purpose to alarm or seriously annoy plaintiff. In addition, plaintiff was apparently unaware of her right to seek an amendment to her complaint. See Kernan v. One Washington Park, 154 N.J. 437 (1998) (noting that the "'broad power of amendment should be liberally exercised at any stage of the proceedings, including on remand after appeal, unless undue prejudice would result'") (quoting Pressler, Current N.J. Court Rules, comment 2.1 on R. 4:9-1 (1998)).

The final restraining order dated June 29, 2006, is vacated, and the matter is remanded to the Family Part for a new trial before a different judge, because this judge has already made findings regarding the credibility of the witnesses. See Pressler, Current N.J. Court Rules, comment 4 on R. 1:12-1(d) (2007).

 
Reversed and remanded for a new trial. We do not retain jurisdiction.

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A-5873-05T1

RECORD IMPOUNDED

May 2, 2007