B.G v. M.G

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2214-08T12214-08T1

B.G.,

Plaintiff-Respondent,

v.

M.G.,

Defendant-Appellant.

_______________________________________

Argued April 19, 2010 - Decided May 14, 2010

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-429-09.

Angelo Sarno argued the cause for appellant (Snyder & Sarno, L.L.C., attorneys; Mr. Sarno, on the brief).

Steven M. Resnick argued the cause for respondent (Budd Larner, P.C., attorneys; Barry L. Baime and Tadd J. Yearing, on the brief).

PER CURIAM

Defendant appeals from a final restraining order dated November 19, 2008, which was entered by the Family Part pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (PDVA). For the reasons that follow, we reverse.

I.

The following facts are pertinent to our decision. The parties were married on December 31, 1995, and two children were born of the marriage. In October 2008, the parties were in the midst of divorce proceedings, although they continued to reside in the same home. The parties jointly operated a jewelry business, which owned two motor vehicles: a Denali, which was used primarily by plaintiff; and a Mercedes, which was used primarily by defendant.

On October 28, 2008, plaintiff filed a domestic violence complaint, in which he charged defendant with assault and harassment. On the same date, defendant filed a domestic violence complaint, in which she accused plaintiff of criminal mischief and harassment. The court entered preliminary restraining orders in both matters and conducted a trial to determine whether final restraining orders should be issued.

At the trial, defendant testified that, prior to October 28, 2008, the parties both had retained lawyers to resolve the pending divorce proceeding. According to defendant, there was "a lot of friction and tension in the house." Defendant was concerned that plaintiff "was taking things from the business." Defendant also was concerned that plaintiff was hiding cash from the business in the house.

Defendant testified that she "found" $700 in plaintiff's sock under a bed in the room where plaintiff had been sleeping. She claimed that the money belonged to the business. Defendant further testified that, while plaintiff was in the bathroom taking a shower, she went out to see if plaintiff had any of the business's property in his vehicle. The Denali was locked but defendant had a key. Defendant found a bag of jewelry in the middle console of the vehicle. Defendant took the bag of gold, put it into the Mercedes, locked the car and went back into the house as plaintiff was leaving.

About five or ten minutes later, plaintiff called defendant on the phone. Plaintiff was screaming. He told defendant that she had three seconds to give him the bag or he would smash her car. Defendant heard the door to the garage open. She walked from the kitchen into the garage. Plaintiff had parked his Denali in the driveway. He entered the garage and picked up a golf club. Plaintiff was "in a rage" and, with one stroke of the golf club, he smashed the window of the Mercedes.

Defendant called 911. Plaintiff reached into the car and grabbed the keys. Defendant yelled at plaintiff and demanded that he return the keys. Defendant tried to pull the keys out of his hand and they struggled. Defendant told plaintiff to put the club down. Plaintiff relinquished the keys. Defendant grabbed them and ran into the house. The 911 operator instructed defendant to wait in the house. The police arrived and arrested plaintiff.

Plaintiff testified that he had a bag in his vehicle, which contained gold and diamonds that belonged to the sister of one of the store's employees. Plaintiff stated that on October 28, 2008, when he left home, he noticed that the bag was missing. He called defendant from his vehicle. She told him that the jewelry was hers and she was not going to give it back to him. According to plaintiff, defendant was "taunting" him and "snickering" about taking the jewelry.

Plaintiff returned to the house and parked in the driveway. He opened the garage door with his remote control and got out of the Denali. He was still on the cell phone with defendant. Plaintiff asked defendant to give him the gold and diamonds. She refused. Plaintiff looked into the Mercedes, which was locked. Plaintiff told defendant he would break the window of the car if she did not give him the gold and diamonds. He took a golf club from a golf bag in the garage and used it to break the window of the car. Defendant was not in the garage at the time. He reached into the car to get the keys to his vehicle.

Defendant then entered the garage. According to plaintiff, defendant was "yelling and screaming and coming towards" him. She demanded her "stuff" and told him to get out of her car. Plaintiff said that, as he was trying to retrieve his keys, defendant grabbed him, scratched his hand, pulled his hair and was "bear hugging" him. Defendant demanded the keys but plaintiff said that they were his keys. Plaintiff testified that he never recovered the bag of gold and diamonds.

Plaintiff further testified that he needed money to pay employees in the store and sold some gold in order to do so. Plaintiff stated that he "knew" defendant was going through his closets, pockets and vehicle "all the time." After he sold the gold, plaintiff returned home late in the evening and hid the money in his clothes by the foot of his bed.

In the morning, plaintiff noticed that $700 was missing from his clothes. Plaintiff confronted defendant. She denied taking the money. Plaintiff insisted that the money had not been in a sock under the bed. He said that the money was in the pocket of his pants at the foot of his bed. On cross examination, plaintiff reiterated that the $700 taken from his clothes was going to be used to pay employees of the business. He conceded that the money belonged to the business.

The police officers who responded to defendant's 911 call, Keith Donnelly and Kevin Milley, also testified. In addition, testimony was given by defendant's mother, plaintiff's father, mother, step-father, as well as an individual who worked in the jewelry business.

II.

After hearing the testimony and the summations by the parties' attorneys, the trial court rendered a decision from the bench on November 19, 2008. The court first addressed defendant's complaint. The court noted that there was no dispute as to what had occurred on October 28, 2008. Plaintiff entered the garage of the parties' home and broke the window of the Mercedes with a golf club. Thereafter, the parties engaged in a struggle over the keys to plaintiff's vehicle. The court stated that defendant had not established that she was the sole owner of the Mercedes. Therefore, the court found insufficient evidence to support defendant's claim of criminal mischief. The court found, however, that plaintiff's actions constituted harassment.

The court additionally found that there was insufficient evidence to show a prior history of domestic violence. The court noted that the testimony of both parties on these issues was not credible, and that both parties had exaggerated when discussing certain previous incidents of marital discord. The court nevertheless found that a final restraining order should be entered against plaintiff. The court stated that plaintiff had "crossed the line" when he smashed the window of plaintiff's car. The court additionally stated that the parties were still engaged in contentious divorce proceedings and there was a likelihood of further domestic violence "at least during the course of the litigation[.]"

The court then addressed plaintiff's complaint. The court found that the struggle for the keys in which defendant scratched plaintiff did not rise to the level of an assault, but found that defendant had committed harassment. The court stated that defendant had invaded defendant's privacy on two occasions by taking the money from plaintiff's clothing and by entering the Denali and taking the gold and diamonds. The court also stated that a final restraining order was warranted under the circumstances because of the potential that this conduct could recur.

The court entered final restraining orders dated November 19, 2008, memorializing its findings. Defendant appeals from the final restraining order entered against her. Plaintiff has not taken an appeal from the restraining order entered against him.

III.

On appeal, defendant argues that the trial court erred by finding that she committed a predicate act of domestic violence. She contends that the acts complained of by plaintiff do not constitute harassment under N.J.S.A. 2C:33-4(a) or (c).

The PVDA provides that the Family Part may issue a final restraining order "only after a finding or admission is made that an act of domestic violence was committed by [the accused] person." N.J.S.A. 2C:25-29(a). The term "domestic violence" is defined in N.J.S.A. 2C:25-19(a)(13) to include harassment under N.J.S.A. 2C:33-4, which provides that a person commits harassment when, with a purpose to harass another person, he or she:

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 seriously annoy such other person.

In State v. Hoffman, 149 N.J. 564 (1997), the Supreme Court explained that subsection (a) of N.J.S.A. 2C:33-4 proscribes "a single act of communicative conduct when its purpose is to harass." Id. at 580. Subsection (b) pertains to "touchings or threats to touch, and it does not require the intended victim to be annoyed or alarmed." Ibid. In addition, subsection (c) "proscribes a course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy an intended victim." Ibid. The Court held that the phrase "or any other manner likely to cause annoyance or alarm" in subsection (a) only encompasses "those types of communications that also are invasive of the recipient's privacy." Id. at 583.

Here, the trial court did not specifically identify the section of the harassment statute that defendant had violated. As we have explained, plaintiff's harassment claim was addressed to defendant's actions in taking money from plaintiff's clothes and vehicle, not to any communications. Therefore, plaintiff's allegations fall within subsection (c) of the statute. Consequently, plaintiff was required to establish by a preponderance of the credible evidence that defendant had engaged in either a course of alarming conduct or repeatedly committed acts with the purpose to alarm or seriously annoy him.

The trial court found that defendant had invaded his privacy when she took money from his clothing and the gold and diamonds from the Denali. We see no need to determine whether the court's finding was correct. We note, however, that plaintiff conceded the money in his clothes belonged to the business that the parties jointly operated. Moreover, plaintiff adknowledged that the Denali was owned by the business and defendant had her own set of keys for that vehicle.

In any event, the evidence fails to establish that defendant's actions constitute the sort of alarming or seriously annoying conduct that N.J.S.A. 2C:33-4(c) is intended to address. As we stated previously, at the time of this incident, the parties were in divorce proceedings and one matter in dispute was the equitable distribution of the jewelry business, which defendant claimed that she owned.

Here, the evidence established that defendant removed the money from plaintiff's clothing and took the bag of gold and diamonds from the Denali because she believed that this property belonged to the business. When plaintiff discovered that $700 was missing from his clothing, he merely questioned defendant about it. Furthermore, the evidence indicated that plaintiff was angry when he discovered that the bag of gold and diamonds was missing from his vehicle, but his subjective response to defendant's actions does not establish that she acted with a purpose to alarm him or seriously annoy him.

Moreover, as the Court observed in Hoffman, "[i]n 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." Hoffman, supra, 149 N.J. at 585. In this case, the trial court found that there was, in fact, no history of domestic violence between the parties, although both plaintiff and defendant had endeavored to convince the court otherwise. The court's finding on that point is entitled to our deference because it is based upon "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

 
We are therefore constrained to conclude that there was insufficient evidence to support a finding that defendant acted with a purpose to alarm or seriously annoy plaintiff when she took the money from his clothing and the gold and diamonds from his vehicle. The evidence shows that defendant took the money and jewelry because she believed it was the property of the business. It was the assertion of a property right, not an act of domestic violence. Although defendant's actions might have warranted an application for relief in the matrimonial action, her actions did not constitute acts of domestic violence under the PDVA.

Reversed.

(continued)

(continued)

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A-2214-08T1

RECORD IMPOUNDED