E.D v. J.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3158-10T1

E.D.,

Plaintiff-Respondent,

v.

J.F.,

Defendant-Appellant.

________________________________

April 13, 2012

Argued January 18, 2012 Decided

Before Judges Yannotti and Kennedy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-000592-11.

John L. Weichsel argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order (FRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-27 to -35. Defendant and plaintiff, E.D., had dated for several months and E.D. obtained the order after the court found defendant committed an act of harassment against her. See N.J.S.A. 2C:33-4 (defining harassment); N.J.S.A. 2C:25-19 (defining harassment as an act of domestic violence). We affirm.

I

On December 14, 2010, E.D. filed a Domestic Violence Civil Complaint against defendant alleging she was harassed that same day. She asserted that defendant sent her several text messages advising her to "get her daughter . . . leave the house and get to a safe place." She added that defendant ended one text message with the word "bullets" leading her to fear for her safety. On the basis of the allegations in the complaint, the trial court entered a temporary restraining order and later conducted a hearing to determine whether a FRO should be issued.

E.D. testified that she and defendant met on an internet dating site on September 2010, and began a dating relationship. During the course of their dating relationship, they went to dinner several times, went on shopping excursions and spoke often on the phone. In late November 2010, however, E.D. decided to break up the relationship and defendant "left unhappily." E.D. elected to terminate the relationship because she found defendant to be "highly suspicious of many things" and "a little anti-social." After terminating the relationship, she noted that defendant became "a little agitated."

At the time, E.D. was living with her sixteen-year-old daughter, a high school student. On December 14, 2010, just before 3:00 p.m. defendant sent a text message to E.D. that read "Kurt1 now." E.D. "immediately was alarmed" by the text message and by return text asked defendant what he meant. Defendant replied one minute later, "call Deb. Go to Kurtz fast. [Amber]2." E.D. believed the reference to "Deb" was meant to refer to the first name of a lawyer known to both plaintiff and defendant.

A few minutes later, defendant again sent a text message to E.D. which read "go now Kurtz fast." E.D. replied by text stating, "call me now. I don't understand what you are saying, or should I call the police?" Defendant replied a minute later with a text message stating, "No. Call Kurt. Get Amber and get somewhere safe. Bullets! I'm sorry." At this point, E.D. was "completely in a panic" and took [Amber] to her next door neighbor's home. Knowing that defendant lived approximately three minutes away and worrying that he might be standing outside of her home, E.D. called the police and signed a Domestic Violence Complaint which the police thereafter served upon defendant. E.D. and her daughter then left their home and stayed at a friend's house for the next two nights. She also "kept in touch with the police" to ascertain whether they were able to contact defendant.

Defendant testified and confirmed that he had sent the text messages to E.D. He also testified that he had a "history of mental illness" and that he had been taking anti-depressant and anti-psychotic medications. He indicated that on December 14, 2010, he "perceived there was some very real threats against [him], and . . . felt they may be extended to [E.D.] as a result of her involvement with [him]." Consequently, he "wanted to alert her that there could be danger and . . . didn't want to take any chances." When asked at the FRO hearing if he still believed there was a threat against his life, he replied "I don't think so, no" and confirmed that "it would appear that it was my imagination." When asked if it was reasonable to expect that an event like this could happen again, defendant testified "yes, yes. Theoretically, it's possible." Defendant's brother- in-law testified that he met with defendant that evening and transported him to a mental health facility.

Following the presentation of testimony, the trial judge made findings of fact and conclusions of law. He found specifically that the parties had had a dating relationship, thereby conferring jurisdiction on the court, and that defendant sent the text messages at issue to E.D. The judge then addressed whether the communication was made with a purpose to harass. The judge stated,

[T]he defendant's behavior, it is suggested, was more influenced by his mental illness rather than his intention to harass. Whether that mental illness establishes a defense is a question which can't be answered by me in this context since I have no expert testimony thereon and, therefore, I am relegated . . . to determine whether there is a purpose to harass which may be inferred from the evidence presented and from common sense and experience[.]

The judge added that,

I find under the totality of the circumstances the content, the tenor and communications methodology employed gives this Court a reason . . . to infer a purpose to harass in that the defendant knew or should have known that the text communications between 2:58 and 3:07 p.m. on December 14th would seriously annoy or alarm the victim.

The judge found that the text communications constituted a "chilling message" and found a "predicate act has been established[.]" He added,

[D]efendant engaged in conduct directed toward the plaintiff purposely, and that conduct was reasonably capable of causing a reasonable person to fear bodily injury or death for herself or her immediate family.

Even in defendant's mental state at the time, he should have known that that would be the likely result and could have and should have done something to further explain the etiology of the threat he perceived and assuaged the plaintiff victim's fears. The failure to do so also provides support for the purpose to harass.

The judge also referred to the two-part analysis under Silver v. Silver, 387 N.J. Super. 112, 126-28 (App. Div. 2006), and found that the "final restraining order is necessary for the protection of plaintiff."

On appeal, defendant raises the following points:

POINT I

DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED BECAUSE [THE] COURT ERRONEOUSLY BASED [ITS] FINDING ON TERRORISTIC THREATS AND STALKING THOUGH THEY WERE NOT ALLEGED IN COMPLAINT

POINT II

FRO SHOULD BE REVERSED BECAUSE OF INSUFFICIENT PROOF OF HARASSMENT: DEFENDANT COULD NOT FORM INTENT IN HIS MENTAL STATE, AND INCIDENT WAS ISOLATED ABERRANT ACT

(A) Court disregarded absence of prior history and misapplied law by focusing on content, not manner

POINT III

COURT MISAPPLIED 'TOTALITY OF CIRCUMSTANCES' BY DISREGARDING ABSENCE OF PRIOR HISTORY AND BASING [ITS] FINDING LARGELY ON VICTIM'S OWN SUBJECTIVE VIEW

(A) Brief dating relationship, victim's initiating contacts and other factors were overlooked

POINT IV

COURT WAS RELUCTANT TO ENTER THE FRO

II

Our scope of review of the trial court's findings of fact is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Rova Farms v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). A trial court's findings of fact should be upheld if they are supported by "adequate, substantial and credible" evidence. Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Rova Farms, supra, 65 N.J. at 484). Because a trial court "hears the case, sees and observes the witnesses, [and] hears them testify," it has a better perspective than a reviewing court in evaluating the veracity of witnesses. Pascale, supra, 113 N.J. at 33 (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). We should defer to a family judge's factfinding. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family courts' factfinding." Cesare, supra, 154 N.J. at 413. On the other hand, we owe no special deference to a trial court's legal interpretation of a statute, or the legal consequences that flow from established facts. Manalapan Realty L.L.C. v. Manalapan Twp. Comm., 140 N.J 366, 378 (1995).

Defendant contends that although the initial complaint contained no allegation of terroristic threats, the court nonetheless "based its findings on elements of that offense and stalking in violation of defendant's due process rights." We disagree. The trial judge explicitly eschewed an analysis under the terroristic threat statute, N.J.S.A. 2C:12-3, and instead focused purely on the harassment statute. Accordingly, this claim of error is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Although the court did not specify the subsection of the harassment statute that defendant violated, the court apparently relied upon subsection (a) of N.J.S.A. 2C:33-4:

[A] person commits a petty disorderly person's 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[.]

The statute requires proof of a "purpose to harass" whether the case involves harassment under subsection (a) or other subsections of the statute. L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). N.J.S.A. 2C:33-4(a) is generally focused on the "mode of speech employed." State v. Hoffman, 149 N.J. 564, 583 (1997). While the statute is not explicitly aimed at the content of a communication that may be subject to constitutional protection, the court must nonetheless examine the "totality of the circumstances" to determine if a communication violates the statute. Id. at 584.

A finding of harassment does not require that a communication must be made anonymously, at extremely inconvenient hours or in offensively coarse language. Rather, the "catch all provision of N.J.S.A. 2C:33-4(a)," which prohibits communications made in "any other manner likely to cause annoyance or alarm," should generally be interpreted to apply to modes of communicative harassment that intrude into an individual's 'legitimate expectation of privacy.'" Id. at 583 (citation omitted).

Moreover, in applying the statute, the court may not ignore the content of the alleged statement in determining whether it invades the legitimate privacy interests of the recipient. For example, we have found harassment under subsection (a) where a former boyfriend's text message to the plaintiff when she was home alone with her daughter stated, "I can see you are watching Desperate Housewives now." Pazienza v. Camarata, 381 N.J. Super. 173, 178, 183-84 (App. Div. 2005). Although the defendant was not actually at the scene, the content of the statement lead plaintiff to believe she was being watched, and made her upset, alarmed and fearful for her own safety and that of her daughter. Id. at 178.

Here, the trial court's determination is consistent with our prior case law interpreting the harassment statute. The trial judge, employing the totality of the circumstances test, specifically found that the tenor and communication methodology employed by defendant permits the court to "infer a purpose to harass."

Also, defendant offered no expert testimony to support his claim that he "could not form intent in his mental state." It is defendant's burden to introduce evidence of a mental disease or defect that interferes with cognitive ability sufficient to prevent or compromise the formation of the requisite intent. State v. Galloway, 133 N.J. 631, 647 (1993). The trial judge correctly observed that in the absence of such proofs, the question of whether defendant's condition precluded a finding of intent "can't be answered."

Defendant further claims the trial judge erred by "disregarding [the] absence of prior history" of domestic violence and accepting the "victim's own subjective view" of the communications. We disagree. While a court must consider whether there is a "previous history of domestic violence" between the parties, N.J.S.A. 2C:25-29(a)(1), "a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation[.]" Cesare, supra, 154 N.J. at 402. One "sufficiently egregious action" can constitute domestic violence "even with no history of abuse between the parties[.]" Ibid. Moreover, the trial judge did not, as defendant contends, simply accept E.D.'s "subjective view" of defendant's act, but rather explicitly found that defendant's conduct was "reasonably capable of causing a reasonable person" to experience fear and alarm.

Finally, we find no error in the court's determination that a restraining order was necessary to protect the plaintiff. The court properly engaged in a separate inquiry regarding the need for restraints. See Silver, supra, 387 N.J. Super. at 126-28 (requiring the court, after finding the commission of a predicate act of domestic violence, to make an inquiry whether a restraining order is necessary to protect a victim from immediate danger or to prevent further abuse.) While defendant claimed that his alarming text messages were prompted by an imaginary threat, he conceded that further acts of abuse are in fact "possible."

In sum, we find no error in the court's finding that defendant committed a predicate act of domestic violence and

that a final restraining order was needed to protect E.D. from future acts of domestic violence.

1 Kurt is a friend of E.D. and was known by defendant to be "a good friend" of E.D. and her family.

2 We have elected to refer to defendant's minor daughter as "Amber" even though that is not her name. We do this to protect the privacy interests of the child and the parties.