NELLY VELASQUEZ-HAY v. EBERG BUSTAMANTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3927-07T33927-07T3

NELLY VELASQUEZ-HAY,

Plaintiff-Respondent,

v.

EBERG BUSTAMANTE,

Defendant-Appellant.

___________________________________________________

 

Argued December 9, 2008 - Decided

Before Judges Skillman and Grall.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Passaic County, Docket No. FV-16-1569-08.

Patricia A. Ferraro argued the cause for appellant (Rose & DeFuccio, attorneys; Ms. Ferraro, on the brief).

James D. Addis argued the cause for respondent (Galantucci & Patuto, attorneys; Mr. Addis, on the brief).

PER CURIAM

Defendant appeals from a final domestic violence restraining order entered on March 3, 2008. This order was based on a finding that defendant committed a predicate act of harassment, in violation of N.J.S.A. 2C:33-4(a), which warranted entry of a restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

Defendant argues that he was not given adequate notice of the hearing or of his right to seek an adjournment; that the trial court failed to find that he had any intent to harass plaintiff; and that the evidence did not support a finding of a violation of N.J.S.A. 2C:33-4(a).

We conclude that the evidence presented at trial did not support the court's finding that defendant violated N.J.S.A. 2C:33-4(a). Therefore, we reverse the final domestic violence restraining order entered against defendant. Our conclusion that there was insufficient evidence to support the finding that defendant harassed plaintiff makes it unnecessary to consider defendant's other arguments.

The parties were divorced in 2003. They have an adult son, named Jose, who is severely disabled. Those disabilities include blindness and substantial difficulty walking. Plaintiff has residential custody of Jose, and defendant has parenting rights. The incident that resulted in the finding of domestic violence occurred when defendant went to plaintiff's home on February 24, 2008 to pick up Jose in order to exercise his parenting rights.

Plaintiff's complaint, which was served upon defendant less than twenty-four hours before trial, alleged:

[Defendant] went to [plaintiff's] house to pick up his son. [Defendant] became angry and was asking [plaintiff:] "Why is that car there, this is Jose's driveway. You are trying to block me." [Defendant] stated to [plaintiff:] "You are going to die." (See addendum)[.]

Plaintiff also attached an addendum to her complaint, which further alleged:

[Defendant] told [plaintiff:] "I'm going to sue you and take everything." [Defendant] also stated to [plaintiff:] "I hope you die."

At trial, plaintiff gave the following account of the incident upon which she based her complaint:

On February 24, Mr. Bustamante arrives to the house [and] at the same time, call[s] me. I came out with Jose. There had been a snow. So the driveway was completely clean and my husband back[ed] up the car so underneath there was a passage. He clean[ed] a passage for Jose to go through there.

And when we arrive to his car, he was very angry, screaming, and saying that -- that he knew why I was blocking the driveway. I told him, there is enough space, you are inside the driveway. And he said, no. I know the purpose. This is Jose's driveway. You shouldn't be doing these.

I'm going to sue you. You know, I'm going to take everything. This is your fault. I'm going to sue you. And then I was trying to give him -- I put Jose in the car and he continued to scream. He was very upset, angry. And just pointing at the car that was there, that was sideways. Not even, you know, blocking him.

And he couldn't listen. So I just put my hand through the window to give him the medicine for Jose and he didn't even receive it. So I just threw the bag and I told him not to bother me and move. And that's when he got very angry and I thought at that moment, you know, he turned to his door, I thought he was going to exit. And I just run into my house and decided not to talk to him.

In the evening, that was the first time that I ask my husband to please accompany me from the distance. And he gave me Jose, there was no exchange of words, and that was it.

After defendant completed his testimony, the trial court questioned plaintiff and elicited the following testimony:

Q. Ms. Hay, Mr. Bustamante says he never threatened you, he never said you should die or I'll kill you or anything similar.

A. He -- he said those things, Your Honor, and I was very scared. His eyes were very red, his facial gestures were very frightening, and he was screaming, yelling, and he was pointing at the car. The car was sideways. He was inside the driveway.

And -- and Jose wasn't, in any way, walking on top of ice like he was saying. That's why the car was back out, because underneath was clean and that was a good pathway for Jose to get to the car. He was in the driveway. There was no problem for the gate and my husband had shoveled it very well, because we knew he could complain of any little thing.

And for him to tell me that he was going to sue me for anything that happens to my son, that he hopes I die, that he wants me -- you know, he wishes me the worst, that was uncalled for, because he knows I care about my son, and I do the best for him. And I don't need more of these.

I need to be in good terms with him. Unfortunately, he can't. And he's always me -- accusing me of things. And he even tried to open the door. He -- there is no letter that says that he cannot get out of the car, he can.

Q. That -- that doesn't concern me. So when he says, I hope you die or I'll kill you or words to that effect, did you believe him?

A. I believed that he could out [sic] the car and push me or do something, yes, I believe[d] that.

Q. And that's based on the incidents that happened prior to this.

A. Yes, yes.

Based on this testimony, the trial court made the following findings:

[Plaintiff] brought Jose out to the car, but when she got to the car she testified she could see [defendant] was visibly upset, that he was yelling, because [defendant] was yelling, he blocked my driveway or the car blocked my driveway, words to that effect. He being Ms. Hay's current husband, Paul Hay. He did have a car and it was in the driveway.

It is her testimony that during these words exchanged on the 24th, Mr. Bustamante said to her, I'm going to kill you or I hope you die or words to that effect, which Ms. Hay took as a threat to her physical safety. She became quite frightened by him.

. . . .

The act of domestic violence alleged in this case is harassment. Harassment has to be demonstrated to me by a preponderance of the evidence that shows me that in this case Mr. Bustamante made a communication to Ms. Hay, verbal or by conduct, either one, and that he did so in a fashion that was likely to cause her alarm.

The acts predicated here for the domestic violence are the words exchanged that the car, on the 24th, if I believe Ms. Hay, Mr. Bustamante said, I hope you die or I'll kill you or words to that effect, which can clearly be harassment, as I think any normal person would find such words alarming.

. . . .

In this case, I have had an opportunity to listen, watch both parties, and I do believe that Ms. Hay makes the more credible witness and statements about the incidents on February the 24th.

So I think she has proven, by a preponderance of the evidence, that on that date, an act of harassment occurred by Mr. Bustamante saying the words he did to her, which caused her alarm and irritation.

There was no basis for the court's finding that defendant said to plaintiff, "I'll kill you or words to that effect." Plaintiff's complaint only alleged that defendant said, "I hope you die." The only reference to killing in plaintiff's complaint was her allegation, as part of her history of alleged prior domestic violence, that defendant had said to her in 2002, "I'm going to kill myself." Moreover, in direct examination by her own attorney, plaintiff did not testify that defendant said either "I'll kill you" or "I hope you die." Plaintiff only testified that defendant became very angry and started screaming that plaintiff's husband's car was blocking the driveway, and then said:

This is Jose's driveway. You shouldn't be doing these [sic].

I'm going to sue you. You know I'm going to take everything. This is your fault. I'm going to sue you.

The only reference to a threat to kill plaintiff originated with the trial judge, who said to plaintiff, after defendant testified, "[D]efendant says he never threatened you, he never said you should die or I'll kill you or anything similar[,]" in response to which plaintiff said, "he said those things, your honor, and I was very scared." Plaintiff went on to say, "for him to tell me that he was going to sue me for anything that happens to my son, that he hopes I die, that he wants me -- you know, he wishes me the worst, that was uncalled for, because he knows I care about my son, and I do the best for him[,]" without alleging that defendant had threatened to kill her. Therefore, there was not an adequate evidential foundation for the court's finding that defendant threatened to kill plaintiff, which was the critical finding underlying the court's conclusion that defendant had committed an act of harassment, in violation of N.J.S.A. 2C:33-4(a).

Moreover, the trial court did not find that defendant's purpose in saying "I hope you die," "I'm going to sue you," or whatever else he may have said to her, was to harass her. The court only found that defendant's statements "caused [plaintiff] alarm and irritation." However, to support a conviction under N.J.S.A. 2C:33-4, a defendant must not only commit an act or acts that constitute harassment within the intent of N.J.S.A. 2C:33-4(a),(b) or (c) but must do so "with purpose to harass another." The court did not find that defendant had such a purpose.

We also conclude that the evidence would not support a finding that defendant had a purpose to harass. Even under plaintiff's version of the incident, it is evident that defendant's actions and statements to plaintiff were not intended to harass her but were instead a verbal overreaction to his perception that plaintiff's husband had parked his car in a location in the driveway that made it unduly difficult for Jose to walk from plaintiff's house to defendant's car.

The incident upon which the trial court based its finding that defendant had committed an act of domestic violence was what we have described in prior opinions as a "domestic contretemps" that does not warrant relief under the Prevention of Domestic Violence Act. See, e.g., N.B. v. T.B., 297 N.J. Super. 35, 40 (App. Div. 1997); Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 56 (App. Div. 1995). The responsibility for the care of the parties' adult disabled son is an obvious and understandable source of tension between them. Defendant undoubtedly should have exercised greater self-restraint even if he was correct in his perception that plaintiff's husband had placed his car in a location that made it difficult for the parties' son to walk to defendant's car. However, defendant's conduct and statements did not constitute an act of harassment within the intent of N.J.S.A. 2C:33-4(a) and thus did not provide a foundation for relief under the Prevention of Domestic Violence Act.

Reversed.

 

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9

A-3927-07T3

RECORD IMPOUNDED

January 5, 2009