PAUL BRAUNER v. CONSTANZE VON RHEINBABEN

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0053-07T10053-07T1

PAUL BRAUNER,

Plaintiff-Respondent,

v.

CONSTANZE VON RHEINBABEN,

Defendant-Appellant.

_______________________________________________________________

 

Argued April 22, 2008 - Decided

Before Judges Coburn, Grall and Chambers.

On appeal from the Superior Court of New Jersey,

Chancery Division, Morris County, FV-14-0192-07.

Bonnie C. Frost argued the cause for appellant

(Einhorn, Harris, Ascher, Barbarito & Frost,

attorneys; Ms. Frost, on the brief).

Leigh-Anne Mulrey argued the cause for respondent

(Walder, Hayden & Brogan, attorneys; Michael

D'Alessio, Jr., of counsel; Mr. D'Alessio and

Ms. Mulrey, on the brief).

PER CURIAM

Defendant, Constanze Von Rheinbaben, appeals from a final restraining order ("FRO") issued pursuant to the Prevention of Domestic Violence Act of 1991 (the "Act"), N.J.S.A. 2C:25-17 to -35.

I

The judge made the following findings of fact:

The parties had a dating relationship. That relationship started sometime in December of 2005 and it ended sometime by the end of February 2006.

On June 13th, 2007, at about seven in the evening, the defendant came out of his house in Madison on his way to the gym and he saw a person whom he recognized as the defendant across the street from his home, turning the corner. She ducked her head several times to avoid being further observed, turning the corner and running away down Pomeroy Street. The plaintiff, wanting to confirm what he believed to be the case, approached the defendant and said what are you doing here. Her response was I have to be close, I still love you, I can't stay away. The plaintiff responded, why shouldn't I go to the police, I'm getting married in three weeks, with an eleven-year-old soon to be stepson. The defendant responded that she promised she wouldn't come back. The plaintiff went to the police station and reported the incident.

After he walked out of the police station, which is across the street from the railroad station in Madison, he saw her [defendant] on the platform and approached her and said, I just want you to know I've just filed a report, they told me to go to the Morris County Courthouse tomorrow, but you've got to stop. Her response was, I love you. The plaintiff responded, you can't say that, Constanze, you've got to leave me alone.

There's a prior history here of domestic violence. There's an incident that occurred about three weeks after the -- the parties broke up. Now we're in March of '06, it was a Sunday morning, the defendant calls the plaintiff and she asks him, can I come out to Madison. He says, no, we're done. The defendant responds, I can't get you out of my head; can you come into New York. Plaintiff responds, no, we're done, hangs up the phone. Three hours later plaintiff, at his home in Madison, hears a pounding on his door; opens the door to find . . . the defendant standing there and in a loud voice she is reading a letter to him. The plaintiff concerned about the neighbors, understandably, brings her inside.

Defendant says the only way I can get you out of my head is I know that you don't respect me anymore, so I came all the way out here to humiliate myself. Plaintiff responds, well, now I've got to take you back to New York because I have no faith you're going to take the train. So he grabs his keys and he says, let's go, and he starts to leave. Defendant says, can I use the bathroom. Plaintiff figures it was a long trip out from New York, sure. He goes to his car and waits. One minute. Two minutes. Five minutes. Goes back to discover that the defendant was standing in his house naked, with her clothes piled on the floor. He picks up the clothes, he hands then [sic] to her, she drops them on the floor.

He says, look, let's go somewhere, let's get some coffee. It took 15 minutes for the plaintiff to get herself dressed. Once she gets in his car, plaintiff makes haste for Manhattan, no coffee. Once the defendant realizes she's going to New York, she starts yelling, she starts crying. They get outside of her apartment in New York, she refused to get out of his car. She insisted that the only way she would get out is if he would take her upstairs . . . to her apartment. Reluctantly, the plaintiff agreed. He went into her parking garage, they went upstairs. At which point the defendant again tries to take off her clothes. Plaintiff left and reported the incident to the Madison Police.

I note that this event in March occurred -- well, excuse me. After this incident in March, if it wasn't absolutely clear to the defendant, the plaintiff told her, we're done, we've been done for three weeks, please leave me alone.

The next incident occurred in September at Terminal C at Newark Airport. Late afternoon, . . . the plaintiff was returning from Bermuda. He's walking towards the stairway in Terminal C and the defendant and he literally bump into each other. And the defendant says, I love you, and repeats and repeats it. And he says to her, please don't say that.

I'm going to come back to this incident in a moment.

In December of 2006, the plaintiff was enjoying a hockey game at Madison Square Garden. He was a Ranger's ticket holder, season ticket holder, the defendant knew that because the plaintiff took her to her first hockey game in February of '06. Plaintiff went there to watch hockey. Who does he see walking back and forth several times staring at him, is the defendant. She returns to her seat, she keeps staring at the plaintiff on a couple of occasions.

. . . [T]here were a couple of other occasions when the plaintiff made it absolutely clear to the defendant that he wanted to be left alone.

After the defendant reached out to the plaintiff's brother in an e-mail to -- in an effort to engage in a dialogue with him, and I'll get back to this e-mail in a moment, the plaintiff sent the defendant an e-mail the beginning of April 2006 telling her that she's crossed the line, thought it was inappropriate that she would talk to his brother-in-law about his son's suicide. He instructed her not to contact his coworkers, his family, and warned her that he wasn't going to get a restraining order now, but if she continued to contact anyone he would do so. And he urged her to consider the impact that a restraining order would have on her career and her immigration status. Now there was no response to this.

In January, the defendant sent plaintiff an e-mail. The plaintiff responded. The defendant wanted to invite the plaintiff to dinner. The plaintiff responded, "I can't go to dinner. Please leave me along, I'm getting married in July."

The Court finds very insightful the defendant's April 1st, 2006 e-mail to the plaintiff's brother-in-law in which, parenthetically, she admits that -- or claims that the defendant -- excuse me. She claims that the plaintiff hit her in his sleep one night. So at best, and I'm going to come back to this issue later. At best, this was an unconscious act by the plaintiff.

But what she -- what she discloses about her feelings toward the plaintiff are very telling in this e-mail. First of all, she admits that she went out -- that she went and acted very destructively in front of the plaintiff. Given the timing of this e-mail, this is more than likely an acknowledgement of her conduct in March when she came out to his home uninvited, but she states, quote:

"I still long for him. I actually feel love for him at many different levels. One, the desire to be with him, certainly. I am made of flesh, too, but the other that I just want him to find his happiness with or without me. I know that only something like a huge miracle will bring us together anew and I am skeptical about miracles. I am certainly not over it. All I long for is to have another chance to try. I am quite depressed. I live the week trying to get by, but as soon as I can retreat, I do that and long. Four letters (PAUL)," plaintiff's first name, "determine my being. So there you have my perceived strength and all of that gone in the dump. I am attending a bar mitzvah in Ithaca right now and the rabbi just said that strength is 'being able to contain your impulses.' If this definition is true, I am so not strong at all."

In this Court's view, the encounters at Newark Airport and Madison Square Garden were not chance encounters, they were not coincidences. They were part of the defendant's consuming desire to -- to be face to face again with the plaintiff.

After noting that the facts were not substantially in dispute, that he found plaintiff's testimony credible, and that defendant "remains obsessed with the plaintiff in any unhealthy way," the judge expressed the following legal conclusions:

I conclude as a matter of law that plaintiff has satisfied by the preponderance of the evidence that the defendant committed an act of harassment against him. I find that her conduct in traveling from Manhattan to Madison on June 13th, in walking the quarter mile up hill from the train station, or half mile probably, and standing outside his home, wanting to have this -- a further chance encounter with him, in the context of this prior history, is an act of harassment.

I find that it is a course of alarming conduct with a purpose to alarm or seriously annoy the plaintiff, with a purpose -- no legitimate purpose, other than to harass. And I say that because by June 13th the defendant had repeatedly been told by the -- the true victim here, Mr. Brauner, that it was over, he didn't want to see her, he didn't want to talk to her, he didn't want to communicate with her.

So I find that this is a violation of Subsection C. And I submit there's also a basis here to make a finding that her presence outside his home on that date, wanting to have an encounter with him, which is what I find her intention was, she wanted to see him, she wanted him to see her, was the equivalent of a communication. She wanted him to know that it wasn't over and that communication was likely to cause annoyance or alarm and serve no legitimate purpose under the circumstances.

I find that Mr. Brauner has been seriously annoyed by this conduct and I find that the defendant acted with a purpose to alarm or seriously annoy him, keeping in mind that the State v. Hoffman defines serious annoyance as weary, worry, trouble, or offend. And I find that Mr. Brauner experienced all of those emotions as a result of the defendant's conduct.

. . . .

[T]here is good cause for Mr. Brauner to be concerned. If not so much for his life, for his health and well being. He cannot walk out of his house for fear of encountering Mrs. von Rheinbaben, even though she lives 40 miles away in Manhattan and needs to take public transportation, she will find him at a Ranger's game, she will find him at Newark Airport, she will find him in his backyard, and not by coincidence, but by design.

I am more than satisfied under these circumstances that a final restraining order is necessary to protect Mr. Brauner.

II

Generally, the scope of review of a trial court's factual findings is limited and are those facts are binding when "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411 (1998) (citation omitted). With regard to deference, it is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." Ibid. (quotation and citation omitted). Based on this, we "should not disturb the factual findings and legal conclusions of the trial judge unless [we are] 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." Ibid. (quotation and citation omitted).

However, we may intervene if we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand . . . correction." State v. Castagna, 387 N.J. Super. 598, 604 (App. Div.) (holding that the evidence was not adequate to support a finding that the defendant had the purpose to harass his wife because the absence of "essential" evidence gave a sense of "wrongness"), certif. denied, 188 N.J. 577 (2006) (quotation and citation omitted). Applying this scope of review, we turn to the case at hand.

Harassment is defined by N.J.S.A. 2C:33-4 which, in pertinent part, states: "a person commits a petty disorderly persons offense if, with the purpose to harass, he . . . [m]akes or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm."

In State v. Hoffman, 149 N.J. 564, 576 (1997), the Court held that a violation of the harassment statute required a showing that: (i) the communications were made or caused to be made; (ii) the purpose of making the communications was to harass another; and (iii) the communications were in a specified manner, or a similar manner likely to cause annoyance or harm to the intended recipient.

This provision of the Act should be applied in light of the Legislature's intent in adopting these specific domestic violence provisions. As we discussed, the

Legislature 'did not create a new class of offenses or interdict acts which otherwise were not addressed by the criminal law, but ensured that spouses who were subjected to criminal conduct by their mates had full access to the protections of the legal system. Thus, instead of redefining prohibited conduct, the law simply incorporates [certain criminal statutes].'

[N.B. v. T.B., 297 N.J. Super. 35, 40 (App. Div. 1997) (citing Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995)).]

Along those lines, we noted that the Legislature did not intend that the commission of any of the enumerated crimes in the Act would "automatically . . . warrant the issuance of a domestic violence order" because the "acts claimed . . . to be domestic violence must be evaluated in light of the previous history of domestic violence . . . including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present." Ibid. (citation omitted); N.J.S.A. 2C:25-29(a)(1) and (2). Looking at the acts through this lens "reflects the reality that domestic violence is ordinarily more than an isolated aberrant act." Ibid. (citation omitted).

Defendant relies on two factually similar cases where this court reversed the issuance of a FRO. In Sweeney v. Honachefsky, 313 N.J. Super. 443, 444 (App. Div. 1998), the parties had a brief dating relationship that lasted approximately one month. After the plaintiff ended the relationship at a restaurant and accidentally left her purse when she walked-out, the defendant returned the purse to the plaintiff, but included in it a note and rose. Ibid. After this, the defendant also left notes on the plaintiff's car, spoke with her on the phone and came to her house. Id. at 445. The plaintiff knew that the defendant wanted to resume the relationship but she told him not to call her again. Ibid. In the FRO hearing, the plaintiff testified that the content of the defendant's communications were not offensive to her, but she was "harassed in being that I had asked him to leave me alone" and that his communications were "inconvenient." Ibid.

The precipitating offense leading to the complaint of domestic violence took place a few weeks after the relationship ended. The defendant went to the plaintiff's house, where they talked for 25 minutes, at which point the plaintiff got "fed up," so she left the house and drove away. Ibid. She thought that the defendant followed her in his truck, but at the hearing she was unsure as to whether it was him or not. Ibid. After returning to her house, the defendant showed up again and was "screaming on the doorstep." Id. at 445-46. The plaintiff's roommate called the police because the defendant was "distressed" but the defendant left before the police arrived. Id. at 446. The trial court found that the defendant committed acts of harassment by placing the rose and note in plaintiff's purse and by pursuing her after the relationship ended. Ibid. The trial court entered a FRO against the defendant accordingly. Ibid.

We reversed, finding that "the conduct here involved was, in terms of domestic violence, marginal at best." Id. at 447. Because we found that there was no suggestion of physical or verbal abuse, no threats of any kind and no use of offensive language by the defendant, there was no harassment. Id. at 447. We characterized the defendant's conduct as "importuning" and that of a "disappointed suitor trying to repair a romantic relationship." Id. at 448. Additionally, in support of dissolution, we noted that the plaintiff did not testify to any continuing fear of the defendant. Ibid.

In Bresocnik v. Gallegos, 367 N.J. Super. 178, 182-83 (App. Div. 2004), we cited Sweeney in reversing a FRO issued to the plaintiff following an annulment of a marriage that lasted a few days following a six year dating relationship. The defendant sent letters and e-mails to the plaintiff at her home and her place of employment. Id. at 182. We found that the communications were neither threatening nor irrational, but rather "an expression of love and regret by someone who has experienced the emotions of a six-year courtship." Ibid. Despite the plaintiff's testimony that she felt threatened for herself and her students, we found that while the defendant's conduct might annoy her, it was not harassment. Ibid.

Although the actions of the defendant in the instant case were not as harmless as sending one letter to the defendant's place of employment, her actions were also not as egregious as showing up repeatedly at his house, calling him at all hours of the night, or threatening him with physical harm. Defendant's conduct can neither be considered threatening, violent nor offensive. The issue is then whether there was annoyance. The trial judge found harassment based on his characterization of the defendant as being "obsessed . . . in an unhealthy way."

Even though the plaintiff said he did not want any contact with the defendant and he told her they were done, his actions did not always support his words.

On numerous occasions he approached her when he could have walked away (e.g., when she was walking on the street in the opposite direction from his house and when she was waiting on the train platform after he exited the police station). Additionally, when she would show up at his house unannounced he offered to, and did, drive her back to Manhattan. He could have called a taxi, taken her to the train station, or simply called the police to have her removed from his property. In fact, when he drove her back to the city after she removed her clothes, he did not simply drop her off at her building - he chose to park his car, go up to her apartment and continue to talk to her.

Based on the plaintiff's actions in response to the defendant's conduct and the fact that the defendant's conduct was never threatening, violent or offensive, the trial court erred in finding harassment.

 
Reversed.

(continued)

(continued)

13

A-0053-07T1

RECORD IMPOUNDED

May 9, 2008