K.Z v. M.F

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4780-10T2

K.Z.,

Plaintiff-Respondent,

v.

M.F.,

Defendant-Appellant.

___________________________________

March 12, 2012

Argued February 27, 2012 - Decided

Before Judges Ashrafi and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-2097-11.

Gerald J. Monahan argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM.

Defendant appeals from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35.1 We reverse, remand, and direct the judge to make further findings of fact consistent with this opinion.2

The parties lived together and ended their relationship one month after the birth of their son. The issuance of the FRO relates to a phone call that defendant made to plaintiff within a few days after he received plaintiff's application seeking child support. Plaintiff contended that defendant's statements to her during the phone call constituted a predicate act of harassment, N.J.S.A. 2C:33-4a.

The judge conducted a two-day FRO hearing and listened to testimony from the parties and three other witnesses. Plaintiff testified that in the early evening of April 4, 2011, defendant called her and stated:

[H]e was going to make my life difficult again, with his sister [who] works for the court[,] and [his sister] was directing him on how to lose my son, so he won't have to pay child support.

. . . .

He would say he's not going to give me anything, I'm a drug addict, [and] I'm a bad mother.

Defendant denied that he called her on April 4, 2011, claimed that he never objected to paying child support, but feared that if he paid plaintiff directly she would use the money to support her drug habit.

In an oral opinion, the judge found:

I find that the defendant has behaved in an intimidating and aggressive manner toward the plaintiff.

. . . .

And I do think there are times when [defendant's] behavior and manner might cause alarm or fear when that's not [defendant's] intent.

So I don't think that everything that [defendant has] ever done or communicated to the plaintiff[,] even when [he has] been excited or angry[,] is necessarily harassment.

. . . .

I'm not persuaded by plaintiff's argument that everything was about trying to avoid a child support order or obligation, I don t think that.

I'm persuaded that the defendant has a genuine concern about plaintiff's drug use and so does this [c]ourt. But I think that [defendant's] effort to control [plaintiff] by saying [defendant would] buy things for the child, but [that defendant] wouldn't give [plaintiff] money, wasn't the correct solution or approach.

. . . .

I think the plaintiff has a drug problem. I think she has a problem with prescription drug misuse and I think she has a problem with . . . illegal drug use.

. . . .

[T]he only thing that explains why that call was made on April 4th is . . . that [defendant was] upset when [he] got served with the complaint for child support.

. . . .

I think [defendant] wanted to control how [his] financial contribution to [his] child was made. I think [defendant] wanted to use it as a means to control the plaintiff, even if that was in part motivated by a genuine desire to not give her money that might be spent on drugs instead of on the [child].

. . . .

I do find that the defendant has harassed [plaintiff] . . . he was angry [and] made that call with the purpose to harass her.

[(Emphasis added).]

In concluding that the FRO was necessary to protect plaintiff, the judge found:

I believe that the plaintiff is afraid of the defendant. . . . I believe that to an extent some of the the extent of that fear or the severity of that fear does come in part from her own issues, which I find do include drug use[.]

. . . .

[I]n light of the intensity of the emotions . . . and the recent things that have occurred, . . . it's appropriate to enter the [FRO] for the protection of the plaintiff.

This appeal followed.

On appeal, defendant argues that the judge erred by finding he committed the predicate act of harassment. He contends that it was inconsistent to find, on the one hand, that he was genuinely concerned that plaintiff would use his child support money to buy drugs, and, on the other hand, that he called her with the purpose to harass. He also argues that the judge failed to find that the FRO was necessary to protect plaintiff from an immediate danger or prevent further abuse.

Trial court fact-finding is "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)); Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010). The trial court sees witnesses firsthand and has a "feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (internal quotation marks omitted). We give additional deference to factual findings of the family courts because they have special expertise, ibid., and we do not second-guess the exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

Nonetheless, when determining whether to grant an FRO pursuant to the Act, the judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Id. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.

Here, plaintiff alleged that defendant engaged in the predicate act of harassment, N.J.S.A. 2C:33-4a, which provides in part that

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[.]

The judge found that defendant acted with the purpose to harass; however, in light of the genuine concern that the judge and defendant shared regarding plaintiff's drug problem, the judge did not make sufficient findings to explain why she found that defendant acted with the purpose to harass, rather than to safeguard his child support money. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2012) (stating that Rule 1:7-4(a) "requires specific findings of fact"). Moreover, the judge's finding that defendant acted with the purpose to harass, standing alone, does not satisfy the definition of harassment pursuant to the statute unless, under the facts of this case, it was "likely to cause annoyance or alarm." See Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995). We cannot conclude from the judge's findings that defendant engaged in any communications or conduct that rose to the level of what the Legislature intended as "domestic violence." See Corrente v. Corrente, 281 N.J. Super. 243, 245-46, 247, 249 (App. Div. 1995) (holding that the defendant's threat to take "drastic measure[s]" and later disconnecting the plaintiff's telephone service could not be "characterized as alarming or seriously annoying"); Murray v. Murray, 267 N.J. Super. 406, 408, 410 (App. Div. 1993) (finding no alarming or seriously annoying communication where defendant repeatedly told his wife he had no sexual feelings for her, did not love her, and planned to divorce her); Peranio, supra, 280 N.J. Super. at 55-56 (concluding that there was no alarming or seriously annoying communication where, during an argument, the defendant said to the plaintiff, "I'll bury you"). In short, "[t]he domestic violence law was intended to address matters of consequence, not ordinary domestic contretemps," Corrente, supra, 281 N.J. Super. at 250, and we question whether, under the facts of this case, defendant's telephone call was "likely to cause annoyance or alarm."

Next, there must also be a finding that "'relief is necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)); L.M.F. v. J.A.F., 421 N.J. Super. 523, 536-37 (App. Div. 2011). It is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente, supra, 281 N.J. Super. at 248; Peranio, supra, 280 N.J. Super. at 54. The determination whether such an order should be issued must be made "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, supra, 281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29a(1) and (2)); Peranio, supra, 280 N.J. Super. at 54. Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127.

Here, the judge found that the FRO was necessary to protect plaintiff, "in light of the intensity of the emotions . . . and the recent things that have occurred." We are unclear what is meant by "recent things that have occurred," but the judge did not fully make findings of fact regarding plaintiff's allegations of a history of domestic violence. "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." Cesare, supra, 154 N.J. at 405; see also R. 1:7-4(a). On remand, when making findings of fact that may warrant the issuance of an FRO, we direct the judge to consider plaintiff's allegations, as well as the considerations set forth in N.J.S.A. 2C:25-29a(1) to -29a(6).

We reverse and remand for the trial court to reconsider issuance of the FRO and to make more-detailed findings of fact in support of its decision consistent with the applicable law as discussed in this opinion. The FRO will remain in effect pending additional findings and further orders of the trial court. We do not retain jurisdiction.

1 Defendant also appealed from an order awarding plaintiff's counsel $7,500 in counsel fees and imposing a lien on his workers' compensation case. Because the judge vacated the imposition of the lien, that part of the appeal is now moot. Defendant has not briefed whether the judge abused her discretion in awarding counsel fees. In light of our remand, the judge may exercise her discretion to reconsider the award of counsel fees if warranted.

2 Defendant appeared pro se at the FRO hearing, and plaintiff did not file opposition to this appeal or appear before us at oral argument.