C.G v. M.M

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4341-09T4

C.G.,

Plaintiff-Respondent,

v.

M.M.,

Defendant-Appellant.

_______________________________________

SubmittedMay 17, 2011 Decided June 7, 2011

Before Judges Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-2029-10.

Laufer, Dalena, Cadicina, Jensen & Boyd, L.L.C., attorneys for appellant (James C. Jensen, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant M.M. appeals from a final restraining order entered by the Family Part on April 12, 2010, pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 (PDVA). We affirm.

On February 8, 2010, plaintiff C.G. filed a complaint in the trial court alleging that defendant had committed acts of domestic violence, specifically harassment, in violation of N.J.S.A. 2C:33-4. The court entered a temporary restraining order and scheduled the matter for a hearing on whether a final restraining order should issue. The hearing took place on April 12, 2010.

At the hearing, plaintiff testified that she and defendant had an intimate relationship which ended in the Spring of 2005. Plaintiff said that thereafter defendant had contacted her, indicating that he had "[s]exual desire" for her. She said that sometimes she ignored the communications; and sometimes she responded to these communications in an "inviting manner." The parties met in August 2008 for drinks.

In November 2008, defendant sent plaintiff an e-mail. Plaintiff responded saying that the e-mail was "sick" and defendant should get help. She also said that she had begged defendant "just to stop." In May 2009, defendant sent plaintiff another e-mail, which stated "Hot sex happens here[.]" Attached to the e-mail was a copy of a photograph of plaintiff's grandparents' home, where plaintiff was living at the time. Plaintiff ignored the May 2009 e-mail.

In June 2009, defendant sent plaintiff another e-mail, which stated, "Who could possibly have sex seven days in a row?" The e-mail also stated, "I can only think of one person. It sucks, but you're the only one that I know that can keep up with me on this. I'm craving you real bad." Plaintiff responded by stating "Mmm, interesting. I have a few comments about that, but I'll keep them to myself. But please tell me this; what is it that you're compelled to email me this random stuff? Please stop."

Defendant was incarcerated in the Bergen County Jail beginning in August 2009. In December 2009, defendant sent plaintiff a Christmas card, which mentioned that it had snowed on December 5, and implied that plaintiff "missed" the storm. On the card, defendant had written "it's been forever since we've talked. I miss you." The card also stated, "Have you done any traveling lately. Tell me more about you."

Plaintiff testified that she believed the card was threatening in part because defendant should not have known where she was living but sent the card to her there. Plaintiff said that the statements on the card suggested to her that defendant had someone watching her or providing defendant with information about her.

In February 2010, defendant sent plaintiff a birthday card. The front of the card depicted twenty-seven lizards, some of which appeared to be in jail. On the card, defendant had written "We're going to have a party and happy birthday[.]" Defendant also had written that plaintiff had been trying "to find" him. Plaintiff testified that she found the statements threatening because she had not been trying "to find" defendant.

Defendant admitted that he sent plaintiff the November 2008 e-mail. He said that it was a "joke" and he did not send the e-mail to plaintiff to harass or annoy her. He said that he thought the e-mail was "funny." Defendant also admitted that he sent plaintiff a sexual, potentially inviting e-mail and she had asked him to stop. Defendant said that he did not send plaintiff any e-mails thereafter.

Defendant further testified that he sent plaintiff a Christmas card in December 2009. He sent it to plaintiff at her grandparents' residence because she had informed him that she was living there. Defendant stated that he mentioned snow in the card because he knew that plaintiff liked snow. He also testified the purpose of the card was to express holiday wishes, not to harass plaintiff.

Defendant additionally testified that he sent plaintiff a birthday card. Someone in the jail had mailed the card to plaintiff, at his request. The card was "handmade" by another inmate. It depicted twenty-seven lizards because it was plaintiff's twenty-seventh birthday and he was aware of her "affinity" for lizards.

Defendant stated that he had been told that plaintiff had been "asking about" him and that was the reason he invited her to come and see him. Defendant testified that he believed she would "enjoy" the card. Defendant stated that the purpose of the card was to "express birthday wishes." He said that he did not send the card to plaintiff to annoy or harass her. He stated that it was a "shock" when he was served with the temporary restraining order.

The court placed its decision on the record, finding that plaintiff was credible and defendant had not been "forthright with the [c]ourt." The court found that, while the parties had an intimate relationship, it had ended some time in 2005, although the parties had gotten together for drinks in 2008. The court further found that, after plaintiff told defendant to leave her alone, defendant sent plaintiff an "offensive" e-mail mentioning "hot sex" along with a picture of the house in which she was living. The court stated that there was no purpose for this e-mail, other than to harass plaintiff.

The court additionally found that in June 2009, defendant sent another e-mail to plaintiff, which was linked to an article about having sex seven days in a row. In the e-mail, defendant stated that plaintiff was the only person who could have sex with him seven days in a row, and he was "craving [her] real bad." The court found that this e-mail was "offensive" and there was "no rhyme or reason" for it "other than to harass" plaintiff.

In addition, the court found that there was no valid purpose for defendant to communicate with plaintiff in December 2009, when he sent her the Christmas card, regardless of whether the statements in that card were "innocuous[.]" The court pointed out that defendant had sent this card to plaintiff even though she told him that she did not want to have anything to do with him. The court further found that defendant had sent plaintiff a birthday card, even though "all of her indications" had been that he should "leave her alone."

The court found that defendant's communications constituted harassment pursuant to N.J.S.A. 2C:33-4(a) and (c). The court further found that defendant's conduct was sufficiently egregious to warrant concern for plaintiff's safety. The court therefore entered a final restraining order. This appeal followed.

Defendant argues that: 1) he did not commit any acts of harassment under N.J.S.A. 2C:33-4(a) or (c); 2) the trial court incorrectly found a history of domestic violence; and 3) the court erred by admitting testimony regarding a history of domestic violence, which testimony was inconclusive. We have carefully considered the record and conclude that defendant's arguments are entirely "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E). We add the following comments.

The standard of review that applies in this case is well established. "The general rule is that findings by the trial court are binding on appeal when supported by 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)). Deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

"Therefore, an 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.'" Ibid. (quoting Rova Farms, supra, 65 N.J. at 484). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

Here, the trial court found that defendant had committed predicate acts of domestic violence, specifically harassment pursuant to N.J.S.A. 2C:33-4(a) and (c). The statute provides that a person commits the offense if, with the 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 course language, or any other manner likely to cause annoyance or alarm; [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.

We are satisfied that there is sufficient credible evidence in the record to support the court's finding that defendant sent plaintiff several communications in a manner likely to annoy plaintiff, or repeatedly committed acts with a purpose "to alarm or seriously annoy" plaintiff.

Defendant maintains that the communications at issue were not made for the purpose of harassing plaintiff. However, the trial court found that defendant's assertions were not credible. The court determined that the only purpose for the communications was to harass plaintiff. There is sufficient credible evidence in the record to support that finding.

Defendant also contends that the Christmas card and the birthday card were "innocuous" and could not be considered alarming conduct. The court found, on the contrary, that however innocuous those communication might appear to be, they were sent to plaintiff under circumstances that were intended to harass her. The record supports that finding.

Defendant further argues that the court erroneously found a prior history of domestic violence. Defendant contends that the court erred by admitting evidence of e-mails that were not mentioned in plaintiff's complaint. However, plaintiff did mention sexually explicit e-mails in the section of the complaint pertaining to a prior history of domestic violence.

Defendant also argues that, even if the evidence concerning the e-mails had been properly admitted, that evidence did not establish a history of domestic violence. He asserts that, if anything, the evidence showed a "stream of sexually charged" e-mails between the parties. This contention is entirely without merit. As the court pointed out, defendant sent sexually explicit e-mails to plaintiff after the parties had broken off their relationship and she begged him to stop communicating with her. The court reasonably found that defendant's purpose in sending the e-mails to plaintiff was harassment.

Affirmed.