D.Q v. R.Q

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4352-08T24352-08T2

D.Q.,

Plaintiff-Respondent,

v.

R.Q.,

Defendant-Appellant.

_____________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1655-09.

Goldstein and Bachman, attorneys for appellant (Mark Goldstein, of counsel and on the brief; Edward A. Wojciechowski, on the brief).

Ramatowski, Spilka & Schwartz, attorneys for respondent (Ellen F. Schwartz, on the brief).

PER CURIAM

Defendant appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered after trial on April 8, 2009. He contends that plaintiff failed to establish an act of harassment in violation of N.J.S.A. 2C:33-4 or to show that a restraining order was necessary, as required by N.J.S.A. 2C:25-29a. We remand to the Family Part for clarification or reconsideration of its decision.

Plaintiff ex-wife's complaint stated that the parties had divorced in October 2007 after twenty-one years of marriage, and they had three children, ages ten to fourteen. The complaint charged that defendant harassed plaintiff on February 16, 2009, after he returned their daughter following his weekend parenting time. Plaintiff alleged that defendant repeatedly called her, that he filed false allegations of abuse against plaintiff with the police, that he was on her property and refused to leave, and that, a few days earlier, because he was angry that plaintiff refused to give him tax information, defendant had repeatedly sent plaintiff voicemail or text messages saying "you'll be sorry . . . the games are starting." As found by the trial court, the evidence at trial revealed the following facts.

Plaintiff and defendant had conflicts and problems of communication since the time of their separation and divorce. Under their property settlement agreement, plaintiff had primary residential custody of the three children, and defendant had parenting time every other weekend. Defendant permitted the children to override his scheduled parenting time, taking them only when they desired to spend the weekend with him.

From February 13 to 16, 2009, only the oldest child spent the weekend with her father. During that weekend, the fourteen-year-old spoke to plaintiff several times on her cell phone. In one of the calls, plaintiff told the daughter that her report card had arrived and included a failing grade for a Spanish class. The grade was a surprise to both parent and child because she had been a straight-A student.

According to defendant's testimony at trial, he overheard plaintiff loudly arguing with their daughter on the phone. The daughter was upset after each of several phone conversations with plaintiff during the weekend. As he drove her home on Monday afternoon, defendant anticipated an argument between his daughter and his ex-wife and advised his daughter how to handle the situation. According to plaintiff's testimony at trial, their daughter was disrespectful to her during the phone calls that weekend, and plaintiff told her she would lose her phone privileges when she got home.

Defendant dropped off the daughter at curbside just before 4:00 p.m. As he was driving to his own home about ten minutes later, defendant received a text message from his daughter. At trial, defendant introduced as an exhibit a photograph of the text message on his cell phone. In addition to giving the date and time and identifying the daughter as the sender, the message was: "How far are you? Can you come back and get me?"

Defendant called his daughter's cell phone and spoke to her. According to his testimony at trial, his daughter was screaming and yelling and said: "Daddy come and get me. Daddy help me. Mommy's beating me with the phone." He testified that the phone went dead after those pleas.

According to plaintiff's testimony, while she was in the course of imposing discipline for the rude behavior over the weekend, the daughter was disrespectfully sending text messages to her friends. Plaintiff told her that she was taking away her cell phone for a week, and the daughter threw the phone at plaintiff.

After defendant was cut-off in the frantic phone call with the daughter, he called plaintiff's house line and spoke to the parties' twelve-year-old son. He demanded to talk to the daughter, but the son said his sister was in her room and did not want to talk. Despite defendant's order, the son refused to put her on the phone. Defendant then told his son to give the phone to his mother, but the son responded that his mother also did not want to talk to defendant. Defendant became angry and, according to plaintiff's testimony, threatened the son, causing him anguish and illness all night. Defendant did not dispute that he became angry with his son, but he attempted, with limited success, to present evidence tending to show that the son was not as upset as described by plaintiff.

After the exchange with his son, and after a further unsuccessful attempt to talk to his daughter on the phone, defendant called 911 and reported domestic violence at plaintiff's home, including physical violence. Several police officers arrived at the house at 4:33 p.m. They first spoke to the son outside and then entered the home, quickly determining that no one was injured or in danger of being injured. The police evaluated the incident as a domestic dispute involving a teenager misbehaving and throwing a tantrum.

At about 4:38 p.m., defendant arrived at the house and stood outside by his car at the curb. Upon learning who defendant was, a police officer approached and told him to leave the area. Defendant refused, stating that he was the one who had called 911 and he wanted to see his daughter. The police assured him that his daughter was fine, but defendant did not trust the police and felt offended that their first contact with him was ordering him to leave. Defendant refused to leave the area until he could assure himself that his daughter was not harmed. He stood outside the property near the street with his arms crossed at his chest, and he argued with the police, although no evidence was presented at trial that he became boisterous or belligerent. A police sergeant told defendant that he would be arrested if he did not leave. Defendant responded that he had done nothing wrong, that he was there to see his daughter because she had called for his help, and that the police would have to arrest him to force him to leave.

After about fifteen to twenty minutes, a police officer arrived with whom defendant was more familiar. The officer obtained defendant's agreement to leave upon that officer checking on his daughter inside the house and reporting back. The officer went inside and returned to tell defendant that his daughter was fine, and that she did not wish to leave with him or to come outside. Another officer told defendant that he could call her later that evening after emotions had calmed down. Defendant accepted the assurances and left the area at about 5:15 p.m. without seeing his daughter.

According to defendant's testimony and his cell phone records in evidence, after he left the area of plaintiff's home, defendant called his daughter's cell phone at 5:26 p.m., but the call went immediately to voicemail. Next, defendant called the house phone and spoke to his son, who refused to put his sister on the phone.

According to the cell phone records, in the twenty-five minutes from the first two calls until 5:55 p.m., defendant made six additional calls, five to the house number and one to plaintiff's cell phone number. In none of the calls did defendant speak to plaintiff, who refused to answer or take the phone from their son. Plaintiff testified that she heard some of the messages left by defendant on the answering machine as they were being recorded, and she later heard others on voicemail. In addition, she heard their son arguing with defendant. In two of the calls, defendant vehemently chastised his son about his refusal to call his sister to the phone, and two calls ended with abrupt hang-ups by one party or the other.

Plaintiff testified that defendant made threats to her and their son in the calls and messages. According to plaintiff, defendant said, with "a lot of cursing":

[T]his isn't the end of this. You've started new games and you're going to pay for this. . . . [Y]ou can't keep my daughter from me, put her on the phone. I'm going to come there, you can't stop me. You can't control me. . . . I'm going to get you. You haven't heard the end of this.

Although messages were recorded, plaintiff did not produce any recordings as evidence at trial. She relied on her own testimony and the testimony of a police officer, for whom she played the recordings two days after the incident. The officer testified that none of the messages contained threats against plaintiff but one call was threatening to their son. He considered the calls to be harassing because defendant made a number of calls soon after leaving the area, rather than waiting until later in the evening when matters had cooled off, and defendant had made what the police perceived to be a false 911 call alleging physical violence in the home.

Defendant testified that he did not threaten plaintiff, except stating he would reopen court proceedings about their disputes concerning parenting issues and plaintiff's refusal to provide tax documents that defendant needed.

In his decision at the close of testimony, the trial judge found that the testimony of both plaintiff and defendant had credibility deficits, but that the two police officers who testified were credible. The trial court concluded that defendant had harassed plaintiff and that a final restraining order should be granted. The court explained its conclusions as follows:

The Court has in front of it the testimony of the defendant that he was the one that called 911 and he was the one who indicated that there was physical violence there, the beating of [their daughter] by the plaintiff with the telephone. His assertion that he did what any parent would do lacks credibility because parents typically are not going to call [the] police department, 911 call for something like that.

But, in and of itself, him arriving at the residence does not give rise to domestic violence. He's then told that he should call his daughter later that evening. Does he choose to call his daughter later that evening? Technically, yes. But if he clears the residence somewhere around quarter after 5, he starts making his phone calls less than 15 minutes later and then continues to call less than 15 minutes later to the plaintiff's residence. There's only one call to [the daughter]'s cell phone. The other calls are all to the plaintiff's residence.

And that clearly is not within the spirit certainly of what [the] Officer . . . was suggesting by way of calling later, but rather that he continuously called and although not directly asking for the plaintiff, he was, in fact, when he had a live voice on the phone, that live voice tended to be [the son]'s, telling him that he needed to speak to [the daughter].

And that combined with the 911 call and the allegation of domestic violence, physical violence at the residence and combined with the telephone messages that he did speak when he did speak to a live person indicating that the plaintiff was going to pay for it, she's going to have to he'll take her back to court. I find that as a result of all of those circumstances, not just any particular one, but rather the culmination plus the fact that the parties have had what I would consider as not just a passing fancy in the past with regard to domestic violence, that there have been numerous telephone calls placed by the plaintiff to the police in the past while the parties were still together.

Also, I had an opportunity to view and observe both of the parties during the extensive testimonies through the course of the day. Although I've already commented on the I'll put it as long windedness by the plaintiff in her testimony, nevertheless, I was able to observe her physical demeanor and it is consistent with that of an individual who is, in fact, fearful of the defendant.

And for all those reasons, I find that the defendant did, in fact, commit an act of harassment toward the plaintiff on February 16th of 2009. Having determined that a predicate act has been of domestic violence has occurred, the Court next needs to look at the second prong of Silver vs. Silver, Appellate Division case 387 N.J. Super. 112, that indicates first prong of a determination of a final restraining order, has there been a predicate act committed by the defendant. Yes, there has been an act of harassment.

And the second prong is whether a final restraining order is necessary to protect the plaintiff from immediate[] danger of further acts of domestic violence. I find that it is necessary for the issuance of a final restraining order to, in fact, protect . . . the plaintiff . . . from the defendant and give the plaintiff some form of relief by way of some security knowing that a final restraining order has been issued. Therefore, a final restraining order is issued against the defendant.

In a domestic violence case, the standard of review on appeal is very deferential to the trial court's findings of fact and the conclusions of law based on those findings. In Cesare v. Cesare, 154 N.J. 394, 413, 416 (1998), the Supreme Court placed trust in the expertise of Family Part judges to assess evidence of domestic violence and the need for a restraining order. Regarding the function of the appellate court, the Supreme Court held:

[A]n appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice."

[Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).]

Here, we accept the findings of fact made by the trial court, and we also accept the trial court's first-hand evaluation of the need for a restraining order if, in fact, defendant committed a predicate act of domestic violence. See Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006).

We are troubled, however, that the court did not make reference to relevant case law that might have affected its conclusions, and also, by the vagueness of the court's explanation for concluding that defendant violated the harassment statute as the predicate act of domestic violence.

The harassment statute, N.J.S.A. 2C:33-4, states:

[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;

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.

Subsection (b) has no application to the events of February 16, 2009. In State v. Hoffman, 149 N.J. 564, 575-84 (1997), the Court discussed the differences between subsections (a) and (c) of the statute. The Court recognized that, "In contrast to subsection (a), which targets a single communication, subsection (c) targets a course of conduct." Id. at 580.

Here, the trial court did not rely on any single statement or phone call from defendant to conclude that he had harassed plaintiff. In fact, the court's only reference to an alleged threat was defendant's statement that "plaintiff was going to pay for it . . . he'll take her back to court." That type of threat closely resembles the threat of "I'll bury you" made in the context of judicial proceedings that we concluded was insufficient to establish harassment in Peranio v. Peranio, 280 N.J. Super. 47, 50-56 (App. Div. 1995). The trial court's decision in this case does not indicate whether it considered our holding in Peranio in assessing the allegations of harassment through the alleged threat of further court proceedings. The versions of the threats given by both plaintiff and defendant, and not developed any further by the testimony of the officer who heard defendant's recorded messages, are consistent with the factual circumstances of Peranio and the "ordinary domestic contretemps" that we described in Corrente v. Corrente, 281 N.J. Super. 243, 248-50 (App. Div. 1995), in contrast to domestic violence within the scope of the Legislature's intent in enacting the Prevention of Domestic Violence Act. Id. at 247-48; Peranio, supra, 280 N.J. Super. at 54-55.

We recognize, however, that the trial court based its finding of harassment on "all of those circumstances, not any particular one, but the culmination[.]" We assume that the court was relying on subsection (c) of the harassment statute in reaching that conclusion. We cannot determine from the court's decision, however, how much weight the court gave to defendant's call to 911 and whether the court believed that defendant had a legal obligation to leave the area of his ex-wife's house when the police ordered him to leave. Both of those actions of defendant were lawful and explained in his testimony.

Plaintiff's complaint alleged that defendant had made false allegations of abuse against her in his call to 911. The two police officers who testified also were of the opinion that defendant had harassed plaintiff by calling 911 to report physical abuse when the incident was an ordinary teenage temper tantrum. The trial court indicated a belief that it was unusual for a parent to call 911 in the context of the phone call from the daughter pleading for help. But defendant first called the house line and attempted to speak to his daughter. When his son refused to put the daughter on the phone, he asked to speak to plaintiff, but to no avail. It appears that defendant first attempted to determine the seriousness of the incident and the daughter's pleas before resorting to aid from the police. Defendant was miles away when he called 911, and both parties testified that they were not communicating cooperatively at the time of the incident. Nothing we discerned from the record indicates that defendant purposely made false allegations of physical abuse in his call to 911. The trial court did not explain why the call to 911 was evidence of harassment.

Additionally, plaintiff's complaint alleged that defendant had come onto her property and refused police orders to leave, but the testimony from the officers was that defendant stood outside the property. There was no evidence of trespassing. Under the particular circumstances of this case, we find little probative value in defendant's choice to disobey the police order to leave the area before he was assured of his daughter's safety. At the same time, we note that the trial court did not indicate specifically that defendant's refusal to leave the area for some fifteen or twenty minutes was evidence of harassment.

Often, the most important aspect of the court's findings and conclusions on a close case of harassment is the history of abuse in the relationship. See H.E.S. v. J.C.S., 175 N.J. 309, 327-28 (2003); Cesare, supra, 154 N.J. at 402, 405; Corrente, supra, 281 N.J. Super. at 248; Peranio, supra, 280 N.J. Super. at 54. In Cesare, supra, 154 N.J. at 405, the Court stated: "Because a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard." Accord Hoffman, supra, 149 N.J. at 585; Silver, supra, 387 N.J. Super. at 128.

Here, the testimony at trial was not clear regarding plaintiff's allegations of past domestic violence, and the trial court's conclusion on that issue was likewise unclear. Plaintiff vaguely alleged prior abuse by defendant. She also testified that the abuse did not include physical assaults with the exception of one incident near the time of separation when she had filed a complaint and obtained a temporary restraining order on the basis of allegations that defendant had choked her. But a final restraining order had been denied to plaintiff following trial of that prior complaint.

At the trial of this case, the testimony and exhibits did not address the reasons for the prior court's decision denying a final restraining order based on the alleged choking incident. Compare J.F. v. B.K., 308 N.J. Super. 387, 392 (App. Div. 1998) (plaintiff could not relitigate allegations decided adversely to her in an earlier domestic violence trial), with T.M. v. J.C., 348 N.J. Super. 101, 106 (App. Div.) (if a final restraining order was denied after trial because allegations did not rise to the level of domestic violence, the prior acts may be admissible and considered in a subsequent trial based on new allegations of domestic violence), certif. denied, 175 N.J. 78 (2002). It seems that if the prior trial court had accepted the credibility of plaintiff's evidence of a choking incident, a final restraining order would likely have been entered.

We cannot tell on this record whether the trial court's vague reference to "numerous telephone calls placed by the plaintiff to the police in the past while the parties were still together" implied a finding that defendant had previously committed physical violence against plaintiff, or other forms of non-physical domestic violence. Calls to the police do not by themselves establish past acts of domestic violence or abuse. If the trial court found a history of violence or other abuse, that finding was not made explicitly. Nor does the trial record contain evidence from which we might extrapolate other acts of domestic violence that led the court to conclude, in the circumstances of this case, that defendant's making six or seven calls in about half an hour, together with his earlier calling 911, constitutes harassment under N.J.S.A. 2C:33-4c.

While troubled by the gaps in the trial court's findings of fact and the conclusions reached from those findings, we are ever mindful of our limited function as a reviewing court under the standard established in Cesare, supra, 154 N.J. at 412. The trial judge heard the testimony firsthand and observed the parties. He relied on those observations in reaching his conclusions and decision. As the Supreme Court said, the trial judge is in a better position than we are to determine whether the evidence fulfills the elements of harassment under the statute. Id. at 413, 416.

We remand to the trial court for clarification or reconsideration of its conclusions regarding a violation of N.J.S.A. 2C:33-4 by defendant. The court shall conduct whatever proceedings it deems appropriate and report its findings and conclusions to the clerk of this court and counsel within forty-five days.

If after remand the final restraining order remains in force, defendant shall within fifteen days of the Family Part's decision order the transcript of any proceedings on the remand, or alternatively, notify the clerk of the court in writing that he does not intend to pursue his appeal. If the final restraining order is vacated, plaintiff may file a cross-appeal within fifteen days of entry of an order vacating the final restraining order, and plaintiff shall order the transcript of any proceedings on remand. Within ten days of receipt of the transcript, the party ordering the transcript shall file a supplementary brief in this court limited to ten pages. Within ten days of service of the supplementary brief, the other party may file a responding brief, also limited to ten pages. If neither party intends to pursue the appeal, counsel shall promptly inform the clerk of this court in writing.

We retain jurisdiction.

 

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A-4352-08T2

RECORD IMPOUNDED

May 6, 2010