AVEN CURRY v. SHAWN CURRY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2612-07T32612-07T3

AVEN CURRY,

Plaintiff-Respondent,

v.

SHAWN CURRY,

Defendant-Appellant.

________________________________

 

Argued: October 16, 2008 - Decided:

Before Judges Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-809-08.

Andrew L. Rochester argued the cause for appellant (Morgenstern & Rochester, attorneys; Mr. Rochester, on the brief).

V. Richard Ferreri argued the cause for respondent (Law Offices of V. Richard Ferreri, attorneys; Mr. Ferreri, of counsel and on the brief).

PER CURIAM

Defendant Shawn Curry appeals from the entry of a final restraining order (FRO) on December 19, 2007, under the Preven tion of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act), based on an argu ment that occurred at about 5:30 p.m. on November 30, 2007, between defendant and plaintiff Aven Curry, his wife. Because the evidence was insufficient to prove a vio lation of the harassment statute, N.J.S.A. 2C:33-4(c), we reverse and remand the matter for entry of an order dissolving the FRO.

The evidence, viewed in a light most favorable to plain tiff, established that plaintiff worked as a bartender and that defendant worked as a customer-service representative for a truck-leasing company. Defendant owned a small retail store in Southampton selling motorcycle merchandise. On the day in ques tion, defendant saw sexually explicit instant messages between plaintiff and someone named J.M. on the store's com puter. Defendant removed a spark plug from a motorcycle that plaintiff had driven to the store because he did not want her to leave the store before they discussed the instant messages.

After plaintiff finished a transaction with a customer, she attempted to erase the instant messages, but defendant con fronted her and asked her to attend marriage counseling, which she refused to do. Defendant then demanded the return of the rings he gave her and asked for a divorce. He said that he was tired of plaintiff "making an ass out of him." Plaintiff testi fied that she could not get the rings off her finger because her finger was swollen, but she claimed that defendant did take the keys to the car she used (defendant's 2000 Ford Taurus Wagon) and her cell phone. Plaintiff then left the store to get away from defendant and started walking home, which was two-and-a-half miles from the store.

Soon thereafter, defendant locked the store and drove the Taurus down Route 206 looking for plaintiff. She was about two hundred feet down the road when defendant pulled into a gas sta tion, got out of the car, blocked her path, asked for the motor cycle key, and would not let her pass, blocking her path by standing "really close in front of" her as she tried to walk around him. Then he grabbed her leather jacket out of her arms, tossed it in the car, and took her rings off her finger after she had worked them loose. Plaintiff told him to leave her alone four or five times during their conversation, which lasted five to ten min utes. Plaintiff did not claim at trial that defendant used force in taking her rings and jacket. Sometime after defendant left the scene, plaintiff's mother picked her up, saying that defendant had called her. Plaintiff went to her mother's house.

Plaintiff testified to a previous incident between the par ties that occurred on Thanksgiving Day, November 22, 2007. Plaintiff's mother had invited J.M. and his father to dinner that day and, when defendant saw them, he became angry, accused plaintiff of trying to humiliate him, and left her mother's home. Shortly after he left, defendant called plaintiff on her cell phone and started yelling at her and said that maybe they should get a divorce. For the next week, when plaintiff felt that an argument was going to start, she "would go for a walk or a run just to get out of the house" and, if he was mad enough, defendant would say, "That's right, run away." She testified that they argued off and on until November 30. She also testi fied that she was afraid of defendant because he weighed twice as much as she did, had the "potential" to become violent, and would say "Are you trying to make me hit you, is that what you want?" He had also told her in the past "If anything ever hap pens between us, if we separate, you'll always be watched." She explained that she did not seek a temporary restraining order until December 5, 2007, because she wanted to consult with an attorney.

On cross-examination, defendant's attorney showed plaintiff two photographs ostensibly from the store's surveillance camera. Plaintiff testified that one of the pictures depicted her trying to get her rings off and the other showed that her keys to the store, her rings, her cigarettes, and her cell phone were on the counter in the store. Plaintiff claimed that J.M. was a friend, not a boyfriend, and admitted that the printed instant messages marked for identification were cre ated by her and J.M. She testified that the words "I'll be with you making your world rock" were just words that did not mean anything, just two people talking and "screwing around." She also testi fied that the words "Just thought you wanted him . . . dead, not me, lol" did not refer to anyone.

Defendant testified that the entire conversation at the store was videotaped, but did not move the tape into evidence. He further testified that, after plain tiff put soap on her fin ger, she was able to remove her rings and gave them to him in the store, not on the highway. She also left her cell phone and keys on the store counter; he never took them out of her hand. He claimed that, when he went to the gas station, he asked "Harry's dad" if he had seen her, but he had not. Defendant then saw her walking down the highway and pulled up beside her. He rolled down the passenger window and told her to get in the car, that he would take her home to get some clothes and then take her to her mother's house. Plaintiff refused. He got out of the car and asked for the motorcycle key, which she gave him and then she threw the leather jacket at him, shouting an obscenity at him. He picked it up and put it in the car, later concluding that it was from the store inventory.

After defendant left plaintiff on the side of the road, he called her mother to tell her of plaintiff's location and ask her to give plaintiff a ride. He also told plaintiff's mother that he believed plaintiff was cheating on him and that he wanted a divorce. Defendant denied ever hitting plaintiff, who did not claim that he had ever down so. He also claimed that she was trained to repair motorcycles and could easily have replaced the spark plug if she wanted to drive it. She did not dispute this testimony. Defendant testified that he wanted the keys to the motorcycle to prevent her from driving it because she had been drinking in the store and her last driving-while-intoxicated conviction cost him $1500. Again, plaintiff did not dispute this testimony.

At the conclusion of the evidence, the judge acknowledged that some of the facts were disputed and noted that the issues were what set of facts he found credible and whether the credi ble facts constituted the offense of harassment contrary to N.J.S.A. 2C:33-4(c). He then made the following findings of fact:

And I think, under all of the circum stances, the gentleman's behavior . . . has constituted harassment and does go over the top. I think the gentleman is attempting to be very restrained and appropriate, but the harassment statute says that, "With the pur pose to harass another and engages in [a course of] alarming conduct, with the pur pose to alarm or seriously annoy the other person."

And I do not find it credible that he believed the lady was intoxicated. Okay. I do not think his behavior was stemming from a desire to protect the lady from her problem with drinking.

I think it's pretty clear, from the tes timony, that the gentleman has somewhat of a controlling personality. The lady drove up on a motorcycle earlier to her store. Things happen.

You know, he sees . . . a message which reasonably would cause a man to suspect that there is an outside romantic interest. Right or wrong, it's a certainly a reasonable perception on the gentleman's part.

And, you know, he then disabled the [motorcycle] she came on . . ., took a gar ment she was wear ing and demanded the car keys. And I think that he was expressing his anger and frus tration and did it with the purpose to annoy, in retaliation for the wrongs he felt that happened to him.

So I will issue a final restraining order.

This appeal followed. Defendant contends that the facts as found by the judge did not constitute harassment contrary to N.J.S.A. 2C:33-4(c); the judge did not consider all of the fac tors speci fied by N.J.S.A. 2C:25-29(a) bearing on the propriety of issuing an FRO under the Act; and the judge failed to find that the final restraining order was neces sary to prevent fur ther abuse. Plaintiff responds that the judge correctly weighed the evidence and the credibility of the parties, requiring affirmance of the FRO.

Appellate review of the trial court's fact-finding function is circumscribed so that findings by the trial court are binding on appeal if supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Trial courts that "hear the case and see the wit nesses . . . are in a better position to evaluate the credibil ity and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). However, even in this lat ter instance, the reviewing court will "nonetheless accord def erence to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

The Supreme Court has observed that matrimonial courts pos sess special expertise and experience in the field of domestic relations. Cesare, supra, 154 N.J. at 412. "Because of the family courts' special jurisdiction and expertise in family mat ters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. While we remain cognizant that we owe no special deference to the trial judge's conclusions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we will not "second guess [a Family Part judge's factual] findings and the exercise of their sound dis cretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

When the Act was adopted, the Legislature declared that "domestic violence is a serious crime against society" because "there are thousands of persons . . . who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants." N.J.S.A. 2C:25-18. Thus, "the focus of the Legislature was regular serious abuse between spouses. That this is so is underscored by the references to torture, battery, beatings, and killing in the findings." Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995) (emphasis added); see also Corrente v. Corrente, 281 N.J. Super. 243, 247 (App. Div. 1995).

The Legislature intended the Act "to assure the victims of domestic violence the maximum protection from abuse the law can provide." Peranio, supra, 280 N.J. Super. at 53 (quoting N.J.S.A. 2C:25-18). Further, the Legislature

stress[ed] that . . . it is the responsibil ity of the courts to protect victims of vio lence that occurs in a family or family-like set ting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those reme dies and sanctions that are available to assure the safety of the victims and the public. To that end, the Legislature . . . encourages the broad application of the remedies available under this act in the civil and criminal courts of this State. It is further intended that the official response to domestic violence shall communi cate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the existing criminal laws and civil remedies created under this act will be enforced without regard to the fact that the violence grows out of a domestic situation.

[N.J.S.A. 2C:25-18.]

"Victims of domestic violence" encompasses persons protected under the Act and include spouses, as here. N.J.S.A. 2C:25-19(d). "'Domestic violence' means the occurrence of one or more of [fourteen specific criminal] acts inflicted upon a person pro tected under this act by an adult or an emancipated minor . . . ." N.J.S.A. 2C:25-19(a). "In enacting the domestic violence law, the Legislature did not create a new class of offenses or inter dict acts which otherwise were not addressed by the crimi nal law, but ensured that spouses who were subjected to criminal conduct had full access to the protections of the legal system." Corrente, supra, 281 N.J. Super. at 248; Peranio, supra, 280 N.J. Super. at 54.

In addition to proving one of the enumerated criminal offenses, the Act also provides that:

[T]he standard for proving the allegations in the complaint shall be by a preponderance of the evidence. The court shall consider but not be limited to the following factors:

 
(1) The previous history of domestic violence between the plaintiff and defen dant, including threats, harassment and physical abuse;

 
(2) The existence of immediate danger to person or property;

 
(3) The financial circumstances of the plaintiff and defendant;

 
(4) The best interests of the victim and any child;

 
(5) In determining custody and par ent ing time the protection of the victim's safety; and

 
(6) The existence of a verifiable order of protection from another jurisdiction.

[N.J.S.A. 2C:25-29(a) (emphasis added).]

One of the specified criminal acts is "harassment" in viola tion of N.J.S.A. 2C:33-4, which is the only specified act said to have been inflicted upon plaintiff. That statute provides in pertinent part:

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

 
a. Makes, or causes to be made, a com munication or communications anony mously or at extremely inconvenient hours, or in offensively coarse lan guage, or any other manner likely to cause annoyance or alarm;

 
b. Subjects another to striking, kick ing, shoving, or other offensive touching, or threatens to do so; or

 
c. Engages in any other course of alarming conduct or of repeatedly com mitted acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4.]

Each statutory subsection is "free-standing, because each defines an offense in its own right." State v. Mortimer, 135 N.J. 517, 525 (1994).

[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. Sub section (b) (the assault and battery or physical contact harassment section) deals with touchings or threats to touch, and it does not require the intended victim to be annoyed or alarmed. In contrast to subsec tion (a), which targets a single communica tion, 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.

[State v. Hoffman, 149 N.J. 564, 580 (1997).]

In order to prove a violation of N.J.S.A. 2C:33-4(c), which the judge found here, the plaintiff must establish the purpose to harass. D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994); E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990). Additionally, the plaintiff must prove "'a course of alarming conduct' or repeated acts intended to alarm or seriously annoy another." Corrente, 281 N.J. Super. at 249 (quoting Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988)); see also Peranio, supra, 280 N.J. Super. at 54.

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 toma toes 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.

[Hoffman, supra, 149 N.J. at 580-81.]

Harassment in violation of N.J.S.A. 2C:33-4(c) does not auto matically warrant the issuance of an FRO because the Act

mandates that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of violence between the parties including previous threats, harassment and physical abuse, and in light of whether immediate danger to per son or property is present. N.J.S.A. 2C:25-29a(1) and (2). This requirement reflects the reality that domestic violence is ordi narily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened.

[Peranio, supra, 280 N.J. Super. at 54 (emphasis added).]

In evaluating a claim of domestic violence, Family Part judges must be cognizant:

that the dissolution of a marriage is rarely a happy event. All parties suffer and even the most rational are hard pressed to avoid any emotional encounters. Our hope, like plaintiff's, is that all children of divorce can be spared arguments and recriminations. But this needs to come from the good inten tions of their parents and not from the mis application of the domestic violence law, which law was intended to address matters of consequence, not ordinary domestic contretemps . . . .

[Id. at 56-57.]

Plaintiff urges that the totality of defendant's behavior on November 30, 2007, "constituted at least an annoyance to the [p]laintiff," including his removal of the spark plugs from the motorcycle she used that day, his demand that she return the keys to the motorcycle despite her request that he leave her alone, his decision that she was not going to return to the marital home, and his act in changing the locks to the marital home later in the day on November 30, 2007. She urges that this course of conduct can "only be construed as an attempt to bully, intimidate, annoy and frighten the [p]laintiff." We disagree.

Here, the judge only found that defendant disabled the motor cycle, "took a garment she was wear ing and demanded the car keys." The judge further found that defendant "was expressing his anger and frus tration and did it with the purpose to annoy, in retaliation for the wrongs he felt that happened to him." These findings are patently insufficient to support the issuance of the FRO.

The judge did not find that defendant engaged in a "course of alarming conduct or of repeatedly committed acts" as required by N.J.S.A. 2C:33-4(c). He did not find that it was defendant's purpose to seriously annoy plaintiff, finding only that he expressed "his anger and frustration and did it with the purpose to annoy," an insufficient finding under N.J.S.A. 2C:33-4(c). See Hoffman, supra, 149 N.J. at 581. He did not find a previous history of domestic violence, nor did he find the existence of any immediate danger to plaintiff, two important factors to con sider under N.J.S.A. 2C:25-29(a)(1) and (2). Peranio, supra, 280 N.J. Super. at 54. We are satisfied that the evidence established no more than the "ordinary domestic contretemps," id. at 57, that one might expect when a spouse believes that he or she has discovered direct evidence of the other spouse's infidelity.

 
Reversed.

Plaintiff also urges that we should strike Da18-Da21 because these documents were not entered into evidence at the trial and are not properly part of the record on appeal pursuant to Rule 2:5-4(a). Da18 is the photograph of plaintiff trying to get her rings off her swollen finger and Da19-Da20 are the instant mes sages marked as D-2 for identification. Because these documents were not moved into evidence, they will not be considered on appeal except to the extent that the parties testified about them and the documents themselves are stricken from the record. State v. Harvey, 151 N.J. 117, 201-02 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

There is no record evidence to support this particular finding. Rather, plaintiff testified that she was holding the jacket when defendant took it and he testified that she threw the jacket at him before he took it and put it in the car.

The events of November 22, 2007, hardly constitute an act of domestic violence; rather, like those of November 30, 2007, the conversations were merely ordinary marital discord.

(continued)

(continued)

16

A-2612-07T3

RECORD IMPOUNDED

January 20, 2009