A.T. v. S.Z.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1055-11T4

A.T.,

Plaintiff-Respondent,

v.

S.Z.,

Defendant-Appellant.

-

October 24, 2012

Submitted October 2, 2012 - Decided

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County Docket No. FV-07-000547-12.

Steven R. Irwin argued the cause for appellant (The Irwin Law Firm, P.A., attorneys; Mr. Irwin on the brief).

Michael D'Alessio, Jr., argued the cause for respondent.

PER CURIAM

Defendant S.Z. appeals from a final restraining order (FRO) entered on September 13, 2011 in favor of A.T., her ex-husband, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. She contends the trial court erred in its determination that she committed an act of harassment as defined in N.J.S.A. 2C:33-4. She further contends the court erred in issuing the FRO as the record does not support a finding that a restraining order was necessary to prevent further abuse. For the reasons that follow, we reverse.

Plaintiff and defendant married in 1995 and divorced in 2009. They have two children. On August 16, 2011, the parties engaged in a text message exchange, which was the subject of the FRO hearing. Defendant sent plaintiff a total of twenty-seven text messages. The conversation centered around defendant's belief that plaintiff owed her "nanny money" and her threat that she would forward plaintiff's personal emails and journal to his girlfriend and to potential employers if he did not pay her. Defendant asked plaintiff for $100,000, claiming "this is not a bribe [, but] a simple negotiation in an attempt to resolve our business out of court." She added, "I'm not one to extort." Interpreting the communications to be both an attempt to extort him as well harassment, plaintiff proceeded to file both a criminal complaint as well as a domestic violence complaint.

On appeal, we are bound by the factual findings of the trial court that are supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). However, the "court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

In order to obtain an FRO under the Prevention of Domestic Violence Act ("PDVA"), the victim must demonstrate, by a preponderance of the evidence, that: (1) a predicate act occurred and (2) the FRO is necessary "'to protect the victim from an immediate danger or to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 474-76 (2011) (quoting Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006)); See also N.J.S.A. 2C:25-19(a); N.J.S.A. 2C:25-29(b).

Harassment is one of the predicate offenses that may support a finding of domestic violence and the issuance of a final retraining order. N.J.S.A. 2C:25-19(a)(13). A person commits harassment if, inter alia:

[W]ith 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 coarse 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.

[N.J.S.A. 2C:33-4.]

Under subsection (a), a single communication may suffice as harassment. State v. Hoffman, 149 N.J. 564, 580 (1997). The annoyance "need not be serious[,]" which our Supreme Court has interpreted to mean "to disturb, irritate, or bother." Id. at 580-81. Under subsection (c), however, the victim must establish a course of conduct of harassment. Ibid. Additionally, the annoyance must be "serious," meaning the victim must demonstrate that the harasser's purpose was "to weary, worry, trouble or offend." Id. at 581. Moreover, under both subsections, "[a] finding of a purpose to harass may be inferred from the evidence presented." Id. at 577.

Defendant argues, however, that her conduct amounted to only extortion, which is not an enumerated predicate act. Defendant's argument lacks merit because her conduct can be classified as both harassment and extortion. Defendant's conduct constitutes harassment because based on the record, her intention was to get her ex-husband to pay her $100,000 for her silence, or she would reveal private, embarrassing information to his girlfriend and potential employers. Therefore, defendant's purpose, which can be inferred from her conduct, was certainly to annoy, upset, and alarm plaintiff. Additionally, plaintiff testified that he found defendant's demand to be "outrageous" and believed that if he did not pay her the $100,000 she demanded she would "ruin" his career and personal life.1 The judge found plaintiff's testimony credible. Defendant's threats to reveal embarrassing, personal information, disturbed, irritated, and bothered plaintiff. Therefore, the trial judge correctly concluded that defendant's text messages to plaintiff constituted harassment.

We reach a different conclusion, however, with regard to the issuance of the FRO. The trial judge did not make any explicit findings on the second inquiry, which is whether an FRO is necessary "to protect the victim from immediate danger or prevent further abuse." J.D., supra, 207 N.J. at 476 (quoting Silver, supra, 387 N.J. Super. at 127). Although some domestic violence cases on their face reveal such a need, other cases, including harassment or other types of nonviolent conduct, require the trial judge to include an analysis of why the FRO is necessary. Id. at 488.

Under the Prevention of Domestic Violence Act, "acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995) (citing N.J.S.A. 2C:25-29(a)(1) and (2)). Therefore, the commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19(a) does not "automatically mandate[] the issuance of a domestic violence restraining order." Silver, supra, 387 N.J. Super. at 123 (quoting Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999)). Rather, the court must make a discretionary determination based on the predicate act of domestic violence, any prior history of domestic violence, and any other relevant circumstances, as to "whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence." Id. at 128. Our review of such a determination is limited to deciding whether it constituted an abuse of discretion. Cesare v. Cesare, 154 N.J. 394, 416 (1998).

The record does not show that plaintiff needs protection from further abuse. The evidence indicates, though defendant sent twenty-seven text messages, that this was an isolated act of harassment that occurred on one night. Plaintiff sought and was granted a temporary restraining order, not immediately, but three days after the incident. Because the record is devoid of evidence to show plaintiff needs protection from further abuse, we conclude that the issuance of an FRO did constitute a mistaken exercise of discretion.

We are satisfied the record does not support a separate finding that final restraints were necessary for plaintiff's protection. See J.D., supra, 207 N.J. at 488. We therefore reverse the order granting the FRO.

Reversed.

1 Plaintiff is an attorney. At the FRO hearing, plaintiff testified he was already paying defendant annually $90,000 in alimony and $30,000 in child support.