M.D v. J.I

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2879-08T32879-08T3

M.D.,

Plaintiff-Respondent,

v.

J.I.,

Defendant-Appellant.

________________________________

 

Argued: February 24, 2010 - Decided:

Before Judges Cuff, C.L. Miniman, and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, No. FV-06-0604-09.

Jeffrey S. Mandel argued the cause for appellant (Pinilis Halpern L.L.P., attorneys; Mr. Mandel, of counsel and on the brief.)

Stephen P. Kernan argued the cause for respondent.

PER CURIAM

Defendant J.I. appeals a Final Restraining Order (FRO) entered on December 24, 2008, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, barring defendant from plaintiff M.D.'s residence, place of employment, and any and all locations where plaintiff may be found, and restraining him from having any contact with her. We affirm.

I.

On December 15, 2008, plaintiff filed a Domestic Violence Civil Complaint seeking a temporary restraining order (TRO) against defendant in the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County. She alleged that defendant came to her place of employment and wrote "Fuck you, Carol" in five places on shelves above the de-icer windshield wiper fluid. She alleged a prior history of domestic violence in 2003 when defendant assaulted and harassed her and their children. Additionally, defendant had threatened to kill her and bury her in the backyard. Finally, he had punched holes in the wall. That day, a Family Part judge granted the TRO and scheduled a hearing for December 24, 2008.

The hearing took place as scheduled, and at the conclusion of the hearing, the trial judge issued an FRO. At the time of the hearing, the parties were engaged in separate litigation with the Division of Youth and Family Services (Division) under docket number FN-06-39-09.

Plaintiff and defendant have two children, twins born in 1997, and had previously resided together. Plaintiff had been employed at Wal-Mart for approximately three years. Her middle name is Carol.

On November 6, 2008, plaintiff found the words "Fuck you, Carol" written in marker multiple times around her work area. She felt scared after seeing the writings and thought that defendant could be hiding in the store. She took five photographs of these writings. Five weeks later, plaintiff and defendant appeared in court for a hearing involving the Division. Defendant admitted to writing the language during that hearing. That admission caused plaintiff to file the Domestic Violence Civil Complaint.

During the December 24 hearing, plaintiff testified to the events of November 6 and previous instances of domestic violence with defendant. She testified that defendant had previously hit her, threatened her many times, and choked her with a telephone cord while she was calling the police. Defendant said he would kill her before the police arrived and would put her body in the backyard. Plaintiff wanted defendant to leave her alone. She acknowledged on cross-examination that she dropped the previous domestic violence restraining orders related to these events, because she "fell for his lies . . . all the time." Defendant would "sweet talk [her] and say he'd never do it again. He loved [her], he wanted a family. And [she] fell for it and [she would] end up dropping the charges."

Defendant testified and denied writing the language. He claimed that a person named Sharon Fish wrote it. He testified that he only admitted to writing the language during the December 15 Division hearing to get to the main issue of visitation with his children. Defendant thought "a Final Restraining Order for a couple of F you's with a magic marker is pretty severe." He beseeched the judge to grant him ten minutes of visitation that day. On cross-examination, defendant admitted that the judge in the Division litigation stated he would order a handwriting analysis of the signs to determine whether defendant was the author, and then defendant, who had denied writing the signs, admitted he had done so. Defendant said that he and Fish talked about the language, but denied asking Fish to write it.

Fish was the final witness to testify. She and defendant were in an intimate relationship at the time of this hearing. Fish admitted to writing the language, saying she wrote it because of what was happening between the parties and defendant's lack of visitation with their children. Fish was on crutches due to ankle surgery at the time of the incident and still on crutches at the time of the hearing.

After hearing the testimony, the trial judge granted the FRO. The judge found plaintiff credible and observed that she was actually scared as she described the history of domestic violence. He determined that the prior history "puts the current circumstances in an appropriate context and it is relevant in the overall assessment of this case." The judge rejected the testimony of Fish as not credible. He found defendant's admission in the Division litigation, before he had an opportunity to consider its consequences, to be the truth and found that defendant wrote the words at plaintiff's place of employment. He found that the communications were "made with the purpose to harass and in an offensively course language." He found that plaintiff was afraid of defendant and needed the protection of an FRO. Defendant filed a notice of appeal on February 9, 2009.

II.

Defendant contends on appeal that the writings at plaintiff's place of employment are not the type of conduct that warrants an FRO. He also urges that the FRO is overly broad and unconstitutional in that it bars him from any location where plaintiff "may" be found. Plaintiff argues that there is no reason to disturb the FRO, which is not unconstitutional.

Appellate review of a trial judge's fact-findings is circumscribed so that findings by the trial judge are binding on appeal if supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The Supreme Court has observed that matrimonial courts possess 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 fam ily matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413.

A Family Part judge's fact-findings and exercise of sound discretion will not be second-guessed. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). The is so because trial judges who "hear the case and see the witnesses . . . are in a better position to evaluate the credibility 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)). Of course, a judge's interpretation of law is reviewed de novo. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

III.

Defendant argues that the trial judge erred in granting the FRO because writing "Fuck you, Carol" does not warrant the issuance of an FRO. Defendant contends that "fuck you" is protected free speech, and as such, the writings do not constitute harassment per se. According to defendant, there is no evidence in the record supporting a conclusion that he had a purpose to harass as required by the PDVA. Defendant also contends that the record does not provide a sufficient basis upon which to conclude there was a history of domestic violence because there was no testimony as to when the prior incidents occurred. In short, defendant argues that issuance of this FRO was improper because there was no act or threat of continued violence and no proof of a history of domestic violence. He seeks vacation of the trial judge's order.

Plaintiff argues that the trial judge did not err in granting the FRO and that there is no reason to disturb the trial judge's findings and conclusions. Plaintiff posits that writing "Fuck you, Carol" is the type of conduct intended to be prohibited by the PDVA. According to plaintiff, "[n]o one should be subjected to finding offensively coarse and obscene language directed at them, left throughout their place of employment." Plaintiff relies on the deferential standard of review in concluding that there was sufficient credible evidence to support the trial judge's ruling. Plaintiff also takes issue with defendant's free-speech argument and concludes that the history of domestic violence required entry of the FRO for plaintiff's protection.

When determining whether to grant an FRO pursuant to the PDVA, the judge must apply the two-prong test set forth in Sil ver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Id. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.

In performing that function, "the Act does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.'" Cesare, supra, 154 N.J. at 402 (quoting Peranio [v. Peranio], 280 N.J. Super. [47,] 54 [(App. Div. 1995)]). Stated differently, when deter-mining whether a restraining order should be issued based on . . . any of the predicate acts, the court must con sider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property. See N.J.S.A. 2C:25-29a(1) and (2).

[Id. at 125-26.]

N.J.S.A. 2C:25-29a specifically provides that "the standard for prov ing the allegations in the complaint shall be by a preponderance of the evidence."

The judge found that defendant's conduct constituted harassment under N.J.S.A. 2C:33-4a, which provides:

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

A violation of N.J.S.A. 2C:33-4a requires three 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).]

"A complaint charging harassment in the domestic violence con text" requires that a court "consider the totality of the cir cumstances to determine whether the harassment statute has been violated," including "an evaluation of the plaintiff's circum stances." Cesare, supra, 154 N.J. at 404 (citing Hoff man, supra, 149 N.J. at 584-85). "A finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577 (citations omitted). "In 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." Id. at 585. There was more than sufficient credible evidence in the record to support the judge's determination that defendant harassed plaintiff in violation of N.J.S.A. 2C:33-4a.

Second, the purpose of the writing was clearly to harass because there was no legitimate purpose to writing "Fuck you, Carol" in plaintiff's work area. See id. at 577 (finding that trial court could reasonably infer that the second element of N.J.S.A. 2C:33-4a was satisfied where defendant's actions had no legitimate purpose). Contrary to defendant's assertion, this purpose to harass and the act of writing the phrase in plaintiff's work area vitiates the constitutional protection of the phrase "fuck you" as used here. Id. at 583-84 (stating that N.J.S.A. 2C:33-4a is aimed at the manner of the communication and not the content of the offending statement); see also State v. Finance Am. Corp., 182 N.J. Super. 33, 38 (App. Div. 1981) (finding that N.J.S.A. 2C:33-4 proscribes conduct). Thus, the second element of N.J.S.A. 2C:33-4a was also satisfied.

Third, the writings were clearly made in one of the specified manners, namely, in offensively coarse language. See, e.g., Fed. Commc'ns Comm'n v. Pacifica Found., 438 U.S. 726, 745-46, 98 S. Ct. 3026, 3038-39, 57 L. Ed. 2d 1073, 1091 (1978) (stating that the words used in George Carlin's "Filthy Words" monologue, including various uses of the word "fuck," were patently offensive). Moreover, defendant's past conduct towards plaintiff is particularly relevant in that it shows that the communication was likely to cause annoyance or alarm. Hoffman, supra, 149 N.J. at 577. Based on the foregoing, the trial judge did not err in concluding that plaintiff had established a predicate act by a preponderance of the evidence.

After the plaintiff establishes a predicate act, the second inquiry is whether a restraining order should be issued. Silver, supra, 387 N.J. Super. at 127. Although this determination "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." Ibid. (citing N.J.S.A. 2C:25-29b). In this respect, the PDVA provides:

The court shall consider but not be limited to the following factors:

(1) The previous history of domestic vio lence between the plaintiff and defendant, 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 parenting 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:25-29a.]

Regarding whether defendant's conduct rises to the level of harassment, it is clear that his conduct satisfies the first element of N.J.S.A. 2C:33-4a in that the writings were a communication that defendant made.

Since plaintiff established a predicate act, the next inquiry is whether an FRO should be issued. Silver, supra, 387 N.J. Super. at 127. Based on the factors enumerated in N.J.S.A. 2C:25-29a, and particularly factor (1), issuance of the FRO was appropriate. The parties' history of domestic violence preceding the November 6 incident included threats to kill and physical assaults. Given the judge's determination that plaintiff's testimony was credible, he properly concluded that plaintiff was in need of protection. Failure to enter an FRO here would have exposed plaintiff to a continuing risk of threats, assaults, and harassment in the future.

IV.

Defendant also argues that the FRO's prohibition on him being in "any/all locations where [plaintiff] may be found" is "unconstitutionally broad and overly expansive." Defendant essentially argues that the FRO is impermissibly vague. However, defendant readily acknowledges that the FRO has not been enforced against him and the matter is thus "arguably not ripe for determination." Plaintiff likewise argues that the issue is not properly before this court because defendant did not raise this issue before the trial judge.

The ripeness doctrine is rooted in prudential limitations on the exercise of judicial authority. Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005). The general inquiry is whether the court would benefit from deferring initial review until the claims presented for resolution have arisen in "a more concrete and final form." Ibid. The doctrine's "'basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.'" Ibid. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681, 691 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977)).

New Jersey courts examine two factors in determining the ripeness of a controversy: "(1) the fitness of issues for judicial review and (2) the hardship to the parties if judicial review is withheld at this time." K. Hovnanian Cos. of N. Cent. Jersey, Inc. v. N.J. Dep't of Envtl. Prot., 379 N.J. Super. 1, 9-10 (App. Div.) (citation and internal quotation omitted), certif. denied, 185 N.J. 390 (2005). Regarding the first prong, the court should consider whether judicial review would require further factual development. Id. at 10 (citation omitted). In addressing the second prong, there must be a "real and immediate threat of enforcement" against the party seeking review where constitutional imperatives are involved. Ibid. (citation and internal quotation omitted).

Applying this two-part test, it is clear that the prohibition on defendant being in "any/all locations where [plaintiff] may be found" is not ripe for review. First, additional factual development is necessary to determine if the language of the FRO is unconstitutionally vague. Given the facts currently before the court, engaging in review of the FRO as applied to defendant would require dealing in hypothetical situations, and this is precisely the type of review the doctrine of ripeness is intended to limit. Murphy, supra, 402 F.3d at 347. The court would certainly benefit from deferring review until defendant's argument has arisen in "a more concrete and final form." Ibid.

Second, there is no hardship to defendant if judicial review is withheld at this time. Indeed, the challenged provision of the FRO has yet to be enforced against defendant. Moreover, there is nothing in the record indicating a "real and immediate threat of enforcement" against defendant such that review would be appropriate. K. Hovnanian Cos. of N. Cent. Jersey, Inc., supra, 379 N.J. Super. at 10. Based on defendant's concession on this issue and the fact that both prongs of the ripeness test are satisfied, we decline to entertain defendant's argument challenging the constitutionality of the FRO.

 
Affirmed.

These photographs were ultimately admitted into evidence during the domestic violence trial but are not contained in the record on appeal.

(continued)

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15

A-2879-08T3

RECORD IMPOUNDED

July 20, 2010