P. O'D v. J. O'D

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2932-07T32932-07T3

P. O'D.,

Plaintiff-Respondent,

v.

J. O'D.,

Defendant-Appellant.

_________________________________________________

 

Submitted January 7, 2009 - Decided

Before Judges A. A. Rodr guez and Payne.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Burlington

County, FV-03-834-08.

Davis & Mendelson, L.L.C., attorneys for

appellant (Kourtney A. Borchers, on the brief).

Cristian M. Towers, attorney for respondent.

PER CURIAM

Defendant, J. O'D (mother) appeals from the January 9, 2008 final restraining order entered against her pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to 35, following a finding by the Family Part judge, after a two-day hearing, that the mother had harassed her former husband, P. O'D (father). See N.J.S.A. 2C:25-29 (restraining order); N.J.S.A. 2C:33-4 (harassment).

On appeal, the mother raises the following issues:

I.

AS THERE WAS NOT ADEQUATE, SUBSTANTIAL, AND CREDIBLE EVIDENCE TO SUPPORT THE TRIAL JUDGE'S FINDING OF AN INTENT TO HARASS BY MOTHER, THE ENTRY OF A FINAL RESTRAINING ORDER AGAINST MOTHER MUST BE REVERSED.

II.

AS THE RECORD CONTAINS NO ADEQUATE, SUBSTANTIAL, AND CREDIBLE EVIDENCE THAT THE DEFENDANT ENGAGED IN REPEATED ACTS OF ALARMING CONDUCT, THE ENTRY OF A FINAL RESTRAINING ORDER AGAINST DEFENDANT MUST BE REVERSED.

III.

AS THE TRIAL COURT FAILED TO CONSIDER THE HISTORY OF DOMESTIC VIOLENCE BETWEEN THE PARTIES, THE ENTRY OF A FINAL RESTRAINING ORDER AGAINST DEFENDANT MUST BE REVERSED.

IV.

THE FINAL RESTRAINING ORDER ENTERED AGAINST MOTHER MUST BE REVERSED BECAUSE FATHER UTILIZED THE RESTRAINING ORDER PROCESS TO GAIN AN ADVANTAGE IN THE CORRESPONDING CUSTODY CASE.

V.

THE FINAL RESTRAINING ORDER ENTERED AGAISNT MOTHER MUST BE REVERSED BECAUSE THE TRIAL COURT, AFTER HAVING FOUND THAT MOTHER ENGAGED IN ACTS OF HARASSMENT AGAINST FATHER, DID NOT CONSIDER WHETHER THE ACTS OF MOTHER, IN LIGHT OF THE HISTORY OF DOMESTIC VIOLENCE BETWEEN THE PARTIES, RESULTED IN AN IMMEDIATE DANGER TO PERSON OR PROPERTY.

We affirm.

I.

During the marriage, the mother and father had two children, a son, age fourteen at the time of the precipitating incident, and a daughter, age ten. The parties were divorced in March 2005. The husband has remarried, and has two sons with his second wife, one age three months and the other age twenty months. The mother had not remarried. In accordance with the property settlement agreement (PSA) entered in the matrimonial matter, the mother and father shared custody of the two children of the marriage on an equal basis. Each parent would spend two or three weekdays with the children, and they would alternate weekends. The parties resided a short distance from each other.

At the hearing, the father testified that, commencing in September 2007, the wife had begun calling him at 12:30, 2:00 and 3:00 a.m., using profanity in her conversations with him. At this time, the father alleged that the mother was abusing alcohol an allegation that she does not deny. According to the father, during this period

there was a series of days, weeks, I don't know exactly how many days and weeks there were, but, again, same type of things where a series of phone calls one minute after the other, again, again. If I didn't answer she then would call my wife's phone again, again, again, again. If my wife answered she would, you know, put your bleeping husband on the phone. You know, this all happened over a period of three months starting in September. A lot of phone calls would take place at, you know, 3:00 in the morning, 2:00 in the morning, 12:30.

During the evening of Friday October 25, 2007, the mother made repeated telephone calls to the father in the middle of the night, and during them, the mother threatened the father and his well-being. On Monday October 29, the father was informed by the mother's boyfriend that the children were endangered and that the father should take them from the mother's custody, which he did. As the result of the mother's conduct, the father sought and was granted a temporary restraining order on the grounds of harassment and criminal trespass. In seeking that order, the father alleged that the mother had repeatedly shown up at the father's residence unannounced and uninvited. The father claimed that the defendant would bang on the door, if no one answered. The father alleged additionally that the mother had entered the residence in his absence and uttered obscenities to the second wife regarding the husband. The father also claimed that, on October 27, 2007, the wife was driving drunk while her son was a passenger, and that the son had been required to grab the wheel to avoid an accident.

At a final hearing conducted on November 7, 2007, the parties agreed to the entry of a consent order that civilly restrained the parties from communicating with each other "except for communications concerning the Children which shall be solely in writing, except in cases of a true life or death emergency" and from entering the residence of the other party. The order also transferred custody of the children to the father and provided the mother with supervised visitation for a period of thirty days after November 7, 2007. During this period, the mother was to attend an after-work alcoholic rehabilitation program, as well as engage in counseling, and at its end, she was to demonstrate compliance with both the program and counseling. Upon submission of the required information, the shared parenting time set forth in the PSA would be resumed. The consent order was never signed. However, both parties testified at the hearing on the present charges that they believed that they were bound by it.

On December 7, 2007, upon submission to the father of proofs that the mother deemed sufficient, she sought to regain custody of the children. The father took the position that the mother was required to provide breathalyzer results and urine analyses demonstrating that she was not consuming alcohol, and he refused to relinquish the children. The mother called the police and, with their intervention, the children were later returned to her with the understanding that they would spend the night of December 8 with their father, so that they could attend a holiday party he was holding for his colleagues at work and their families. However, on December 8, the father determined to return the children to their mother that night, and she agreed.

During the course of the party, the mother repeatedly phoned her son to determine when he would return. During a call that occurred around 9:00 p.m., the son was overheard by guests stating that he would not be returning until all the guests had left. The comment appeared to have been interpreted by the guests as a suggestion that they leave, and the party broke up. Thereafter, the mother text messaged the father at 10:00 p.m. asking when the children would be coming home. They were delivered to the mother shortly thereafter. However, according to the mother's testimony, the son soon became extremely upset, declaring that his father and the father's second wife were divorcing, and that he could not go through another divorce. After the mother had calmed the son and he had gone upstairs to use the computer, the mother made four telephone calls to the father, commencing at 10:26 and ending at 10:29, none of which were answered. Additionally, two calls were placed by the mother to the father's new wife between 10:30 and 11:00. At 10:29 p.m. the father text messaged: "Stop calling." At 10:31 the mother responded: "This is about [the son]. I need to talk to [you]." At this point, the father phoned his son and was assured that everything was fine. At 10:39, the father text messaged: "Please stop calling. You already destroyed my work party. You're not allowed to call." At 10:41, the mother sent the father a text message that stated: "[Our son] is a mess. I need to talk to you as a parent. Please talk to me. I'm coming over. This is about [our son]." The father responded at 10:53: "Please do not come over. Please stop calling." To that, the mother replied at 10:54: "I'm not crazy. I need to talk to you about our son." At 10:59, the mother added: "I'm not here to yell. It's about [our son]."

At this point, the mother arrived at the father's house, and when she was not admitted, she commenced banging on the door and loudly demanding to speak with the father. After a period of ten to fifteen minutes, the father permitted the mother to enter. However, matters quickly disintegrated into a shouting match between the father and the mother. In the meantime, the twenty-month-old child had been awakened by the noise. His mother brought him downstairs in her arms, and was sitting with him in the family room. As the dispute between the father and the mother continued, the second wife remarked that the mother was acting like white trash. In response, the mother slapped the wife in the face. The mother then left, and the wife called the police. The father testified that the mother's conduct caused concern on his part for the safety and welfare of himself and his family. A temporary restraining order was entered.

No change in custody was ordered in the period between the entry of the restraining order and the hearing on January 8. However, on December 21 or 22, the son found a wine bottle and claimed to have found a glass of wine in the mother's office. As a result, the son determined to live with his father, taking his sister with him because he alleged that he was concerned for her safety. The mother denied continuing alcohol abuse.

A testimonial hearing was conducted in this matter, at which the father, the mother, and the father's second wife testified. At its conclusion, the judge found that harassment by the mother had been established by a preponderance of the evidence, entered a final restraining order against her, and awarded residential custody of the children to the father while leaving the parties' agreement to joint custody in place. The mother was permitted supervised visitation and telephone contact with both children. The custodial aspects of the order were made subject to any further order of the matrimonial judge.

In his oral decision, the judge determined that the mother had struck the second wife, accepting the wife's testimony in that regard rather than that of the mother, who had testified that the wife "got in her face." Although the judge recognized that the assault, by itself, could not be a basis for a restraining order against the wife, he stated that it would be considered, along with other facts, as a foundation for his decision.

The judge found additionally that the mother's conduct was motivated by concern for the son but that her conduct had exceeded that necessary for an attempt to communicate and, instead, was "being done for purposes of harassment or annoy[ance]." According to the judge, the mother, over the course of the evening of December 8, "began to try to harass" the father. The judge further rejected the argument made on the wife's behalf that it was not credible to believe that the husband would have permitted the mother to enter his house if she were acting in the disruptive manner that he had described. He stated "I believe it happened exactly" as the husband testified. "She was invited in and things didn't go well." The judge concluded:

. . . I feel that the law requires that I enter a finding that there is harassment in this case based on the whole pattern of behavior, telephone calls in the middle of the night, you know, coming to the home when asked not to, just creating a sense that whenever [the mother] gets focused on something she then will drive toward it regardless of the consequences to people she's dealing with.

II.

Our review of the record in light of applicable statutes and precedent satisfies us that the Family Part judge did not abuse his discretion in finding that the mother violated the PDVA and in imposing a final restraining order upon her. In this regard, we note that, "[b]ecause the Domestic Violence Act is remedial in nature, it is to be liberally construed to achieve its salutary purposes" of ensuring that victims of domestic violence obtain the maximum protection from abuse the law can provide. Cesare v. Cesare, 154 N.J. 394, 399-400 (1998); N.J.S.A. 2C:25-18 (Legislative Findings and Declaration).

In determining whether domestic violence has occurred, the Act requires that "acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties." Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). As a consequence, "a court may . . . determine that an ambiguous incident qualifies as prohibited conduct, based on a finding of violence in the parties' past." Cesare, supra, 154 N.J. at 402.

In reviewing the record, we consider the findings by the trial judge binding on appeal when supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Because matrimonial courts possess special expertise in the field of domestic relations, we owe their factual determinations particular deference. Cesare, supra, 154 N.J. at 412-13.

"Domestic violence is a term of art which defines a pattern of abusive and controlling behavior injurious to its victims." Peranio, supra, 280 N.J. Super. at 52. To establish domestic violence pursuant to the PDVA, in the circumstances of this case, the husband was required to establish, by a preponderance of the evidence, that the mother had engaged in otherwise criminal acts that constituted harassment as defined by N.J.S.A. 2C:33-4. See N.J.S.A. 2C:25-19a(14) (definitions). The harassment statute provides:

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

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

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

The Family Part judge hearing this matter did not specify the section of the statute that he found the wife to have violated. Nonetheless, it appears evident to us that he focused on subsection (a) when reaching his decision. A violation of that subsection requires proof of the following elements: "(1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient." State v. Hoffman, 149 N.J. 564, 576 (1997). The Supreme Court has held that "the term 'annoyance' should derive its meaning from the conduct being scrutinized" and that under subsection (a), "annoyance means to disturb, irritate, or bother." Id. at 580. "A finding of a purpose to harass may be inferred from the evidence presented." Id. at 577. "Common sense and experience may inform that determination." Ibid.

We are satisfied that, contrary to the mother's arguments, sufficient proofs were presented to support the Family Part judge's conclusion that the mother acted with a purpose to harass. As he found, although the mother may initially have been motivated by concern for her son, by the time she reached the father's residence, if not sooner, that motivation had been transformed. At the time, the son had recovered his composure and was using the computer. Although the mother may have wished to verify the son's report of the father's new marital difficulties, which evidently manifested during the party or shortly thereafter, and to inform the father of the effect of those difficulties on their son, the means employed to do so were hardly appropriate and, it is reasonable to infer, intentionally harassing. Moreover, the mother's attempted communications were made "at extremely inconvenient hours" and were couched in "offensively coarse language."

Even if we were to consider the mother's conduct on December 8 an ambiguous incident, we would find the judge's conclusion that harassment had occurred to have been amply supported as the result of the history of similar conduct occurring over the three months that preceded the December incident. That such prior conduct may have been impelled, in part, by the mother's drinking problems does not affect our decision in this regard, since at the hearing, the mother claimed that she had been sober for the past ninety days.

We reject the mother's position that, in order to establish harassment, evidence of "a course of repeated acts of alarming conduct" was required. Such a showing is required only with respect to subsection (c) and is not required by subsection (a). "The proper focus in a subsection (a) prosecution should be on whether the method or manner of communication established an harassing intent to annoy or alarm." Hoffman, supra, 149 N.J. at 575. See also id. at 580; Cesare, supra, 154 N.J. at 402. Moreover, as we have stated, the requisite history of harassing conduct, occurring over a three-month period, was offered through the testimony of the husband and his wife, thereby providing grounds for a finding of harassment under subsection (c) as well as (a).

The mother claims additionally that the Family Part judge's order must be vacated because the judge, after finding harassment to have occurred, failed to find additionally that a restraining order was required to provide protection to the husband. See Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). As we stated in Silver:

Although this second determination whether a domestic violence restraining order should be issued is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse. See N.J.S.A. 2C:25-29b (stating that "[i]n proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse").

[Id. at 127 (emphasis in original).]

N.J.S.A. 2C:25-29a requires, in relevant part, that the judge consider "(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;" and "(2) The existence of immediate danger to person or property." While these factors were not explicitly discussed by the Family Part judge in this matter, consideration of the "sum total" of the prior history of harassment recounted by the husband led the judge to conclude:

I am struck by a quality about [the mother's] behavior which I would describe as impulsive. This is a very bright woman and yet her behavior is impulsive to a point where it's quite harmful to things that she cares greatly about.

In the context of this particular case, we find that evaluation to be sufficient to meet Silver's requirements.

 
The mother also argues that the PDVA should not be utilized as a sword in a case such as this in which child custody remains at issue. In this matter, the Family Part judge awarded temporary custody of the children to the husband, subject to further consideration by the judge handing the matrimonial docket. Although a change in custody from the prior shared arrangement thus occurred, we find no evidence in the record to support the claim that the husband utilized the PDVA with the goal of achieving this result. In fact, we note that the son, at least, had voluntarily left his mother's custody prior to the hearing and, at the time the hearing took place, he was refusing to return to her residence. Moreover, because the custody order was entered without prejudice, nothing precludes the mother from moving in the matrimonial proceeding for restoration of the prior custodial arrangement.

Affirmed.

The Court has found that the remaining factors are "relevant only to the fashioning of a domestic violence remedy" Cesare, supra, 154 N.J. at 401, and thus the judge need not incorporate them into his findings "when determining whether or not an act of domestic violence has been committed." Id. at 402.

We note that, among the remedies available to the court under the PDVA is "[a]n order awarding temporary custody of a minor child. The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent." N.J.S.A. 2C:25-29(b)(11).

(continued)

(continued)

16

A-2932-07T3

RECORD IMPOUNDED

April 16, 2009