K.M v. C.M

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2030-10T4

K.M.,

Plaintiff-Respondent,

v.

C.M.,

Defendant-Appellant.

_________________________________________________

Argued May 17, 2011 Decided July 29, 2011

Before Judges Payne and Baxter.

On appeal from Superior Court of New Jersey,

ChanceryDivision, FamilyPart, UnionCounty, Docket No. FV-20-800-11.

Komal S. Ullah argued the cause for

appellant (Fink, Rosner, Ershow-Levenberg

L.L.C., attorneys; Ms. Ullah, on the

brief).

Colleen A. McCarthy argued the cause for

respondent.

PER CURIAM

Defendant, C.M., appeals from the entry of a final restraining order (FRO) against him following trial and a judge's finding that he had committed an act of domestic violence by harassing and uttering terroristic threats to his estranged wife, plaintiff K.M.

The transcript of the trial in the matter discloses that the parties are in substantial agreement as to what took place. Plaintiff and defendant separated on March 6, 2010 after approximately three years of marriage. However defendant, a Union County police officer, did not move out of the residence, but instead kept to an upstairs bedroom while there. On Sunday, November 7, 2010, defendant returned to the home at 8:00 p.m., and observed a man sitting on the living room couch watching television. Plaintiff was not in the room. The next evening, defendant returned to the home at approximately 9:15 or 9:30 p.m. The man was again there, watching television with plaintiff. The following morning, defendant saw the man pass from the living room to the dining room and then to a bathroom near the kitchen. At no time did any of the parties speak, although in the past, plaintiff had introduced defendant to her male and female guests.

Commencing at 6:42 a.m. on November 9, defendant began a text message exchange with plaintiff regarding the man and the fact that he appeared to have spent the night with plaintiff. In a message sent at 6:55 a.m., he stated:

Imma keep this plain n simple. If he's their when I return with or without u there will be a problem. What u do away from o [sic] no problem with. But I'll be damn if ur gonna bring ur man to the house I live at and pay rent at as well.

Plaintiff responded that "[n]o one LIVES here" and that the man's father had died, and his car did not start. Additionally, she informed defendant that the man was not coming back. In return, defendant sent a text message that stated:

Im going in the house in about 10 mins so if your man is on [sic] there he best be gone. Cause im coming in the house with my duty weapon and if he's still there then oh well. I'm not responsible for what might or could happen.

After plaintiff responded that "NO ONE is there" and that the man "wont be there again," defendant replied:

And I know he wont be there again as long as in there [sic]. Cause if he is its going to be a misunderstanding with dire results for him. And that's not a threat that's a promise. At the very least u will be bailing him out of jail.

Following a further exchange of text messages, defendant additionally wrote:

Let me make this CRYSTAL CLEAR to you. His name is NOT in the lease so he has NO RIGHT what so ever to enter or be in that house. Whether he's with u or not I don't want him by or in the house PERIOD. Now that this is all clear im going to let my job know as well as the Plainfield Pd as to what the situation is between me and you and what may happen at 816 W 6th St.

That text message was followed by a series of messages in which defendant expressed his disbelief in plaintiff's explanation of the man's presence, after which defendant wrote:

And as a reminder again if I come home and he's there God help us all. That's not a threat that's a promise.

Shortly thereafter, at 10:58 a.m., the text messages stopped. At this point defendant had sent twenty-four such messages in a three-hour period. Plaintiff testified that as a result of her receipt of the messages she was trembling, frightened and crying. At the suggestion of an office friend, she contacted a Lieutenant in the Union County police force, who in turn contacted defendant's supervisor. After a conversation with defendant, he was told to move out of the residence, turn in his service weapon and to have no further contact with plaintiff. Additionally, defendant's work location was changed so that he no longer worked in Plainfield.

In addition to contacting the county police, plaintiff contacted the Plainfield Police who came to the residence when plaintiff returned from work. Defendant moved out that evening.

At the conclusion of the trial, the judge found that plaintiff had met her burden of demonstrating by a preponderance of the evidence that defendant had committed acts of harassment as set forth in N.J.S.A. 2C:33-4a and c that qualified as domestic violence pursuant to N.J.S.A. 2C:25-19. Additionally, the judge found defendant's acts to constitute terroristic threats pursuant to N.J.S.A. 2C:12-3 when judged pursuant to an objective standard as required by Cesare v. Cesare, 154 N.J. 394 (1998). Further, the judge found that a restraining order was necessary for plaintiff's protection from future acts of domestic violence, because of defendant's continuing desire to know the identity of plaintiff's friends. As a consequence, an FRO was entered. Defendant has appealed.

On appeal, defendant, who appeared pro se at trial, first argues that he was deprived of his right of cross-examination when, after plaintiff had testified, the judge said to him: "Mr. [M.], you have the right to cross-examine her or tell me your side of the story. What would you like to do?" Defendant chose "just tell my side of the story, sir."

We agree that the judge's choice of words was inartful. However, we note that he did inform defendant of his right to conduct cross-examination, which he declined to exercise. While the use of the word "or" was, in hindsight, ill-advised, in the context of this particular case, we do not regard the error to require reversal. In reaching this conclusion, we distinguish

Peterson v. Peterson, 374 N.J. Super. 116 (App. Div. 2005) and Franklin v. Sloskey, 385 N.J. Super. 534 (App. Div. 2006), upon which defendant relies, because in both of those cases we found that the judge had failed to inform the defendant of the right of cross-examination, and that neither defendant was aware of that right. Peterson, supra, 374 N.J. Super. at 125; Franklin, supra, 385 N.J. Super. at 543.

Moreover, our review of the record satisfies us that cross-examination in the present case would not have disclosed additional relevant facts, because neither party disagreed on an issue of relevance to the judge's finding. Both parties agreed to the substance of the text messages that plaintiff found to be objectionable. Their context was evident as the result of the production by defendant of a complete transcription of the full exchange between the parties.

Defendant additionally argues that the judge erred in finding harassment as the result of a single incident that could more fairly be characterized as a "domestic contretemps" similar to that in Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995). We do not accept defendant's position.

The judge found that defendant had violated N.J.S.A. 2C:33-4a and c, which provide:

[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;

. . . .

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

Defendant's conduct in informing plaintiff that he intended to return to their residence armed with his service weapon, and if her male friend were present, he could not be responsible for what took place, clearly met these statutory requirements. Moreover, in making multiple threats of the use of a weapon, defendant clearly exceeded what could be characterized as a "domestic contretemps." As the judge properly recognized, there are circumstances in which just one episode of harassing conduct is sufficient to warrant issuance of an FRO. Cesare, supra, 154 N.J. at 402 ("[O]ne sufficiently egregious action [may] constitute domestic violence under the Act"). We do not regard the judge to have erred in finding the evidence adduced in this matter to warrant the entry of an FRO.

We reject defendant's argument that the judge based his finding of harassment on evidence of plaintiff's subjective fear. As the portion of the judge's opinion that we quoted earlier demonstrated, the judge employed an objective standard. While the judge did consider defendant's individual circumstances, such was proper in determining whether a reasonable person in plaintiff's situation would have believed defendant's threats. Id. at 403.

We also reject defendant's argument that the judge failed to find that the entry of an FRO was necessary to protect plaintiff from future acts of domestic violence. As our summary of the judge's opinion makes clear, the necessary finding was made. Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006).

As a final matter, defendant argues that the judge erred in finding that he had uttered terroristic threats, because plaintiff's complaint did not allege such conduct. Our review of the complaint confirms that defendant is correct in this regard. Although the charge is closely allied to the harassment that plaintiff alleged, we agree that the judge should not have transformed a hearing on a complaint alleging one act of domestic violence into a hearing on a previously undisclosed claim. J.F. v. B.K. 308 N.J. Super. 387, 392 (App. Div. 1998). Accordingly, we dismiss that charge as a basis for entry of the FRO while leaving the order otherwise intact.

A