S.K v. K.K

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5049-10T1

S.K.,

Plaintiff-Appellant,

v.

K.K.,

Defendant-Respondent.

_____________________________________________

March 9, 2012

Argued February 15, 2012 - Decided

Before Judges Payne and Accurso.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-000957-11.

John E. Clancy argued the cause for appellant (Townsend, Tomaio & Newmark, attorneys; Mr. Clancy, on the brief).

James C. Jensen argued the cause for respondent (Laufer, Dalena, Cadicina, Jensen & Boyd, attorneys; Mr. Jensen, of counsel; Gregory D.R. Behringer, on the brief).

PER CURIAM

Plaintiff appeals from a final judgment denying entry of a restraining order she sought against her husband pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.

Plaintiff and defendant were married in 1990. They have four teenage children. Plaintiff filed her first domestic violence complaint on November 5, 2009, alleging that defendant verbally harassed her after she confronted him about driving drunk with their daughter and her friends in the car. In that complaint, plaintiff alleged that defendant had been verbally abusive in the past, told her that he wished she would die in a car accident and had, on one occasion, punched a hole in a wall. Plaintiff testified that she dismissed the ensuing temporary restraining order, before defendant was even served, in the hope that defendant would get the help he needed and they could salvage their marriage.

Several weeks later, on December 11, 2009, plaintiff obtained another temporary restraining order against her husband arising out of a significantly more serious incident. Plaintiff testified that she had been out late with friends on the evening of December 10, 2009 and had returned home to find defendant already asleep in their bed. After plaintiff changed clothes and got into bed, defendant suddenly threw himself on top of her. Plaintiff wrested free and told defendant, "I'm never going to be with you again. It's over." Defendant then attacked her, straddling her to hold her down while covering her mouth with one hand and pulling off her clothes with the other. Plaintiff suffered a bloody nose in the struggle. The couple's children were awakened by plaintiff's crying and discovered their parents in their bathroom, their mother bruised and crying with a bloody nose and their father trying to clean up the blood on the floor.

Plaintiff received a temporary restraining order against defendant the following day. Defendant was also criminally charged with second degree attempted sexual assault, third degree criminal restraint and simple assault. Defendant pled guilty to simple assault and was sentenced to one year of probation. A complaint for divorce was filed on January 26, 2010, and the parties entered into a consent order for civil restraints the same day. The consent order provided plaintiff with exclusive possession of the marital residence. Defendant was entitled to access at mutually convenient times to retrieve his belongings and make any necessary home repairs. The parties also agreed that the children would remain with their mother with defendant to be accorded reasonable and liberal parenting time. Upon entry of the consent order for civil restraints, plaintiff dismissed the temporary restraining order.

The events giving rise to this appeal occurred fourteen months later. On April 5, 2011, defendant picked up the parties' son at his SAT class at 9:15 p.m. and drove him to plaintiff's home, the former marital residence. Defendant had been late picking up the boy and testified that his son had been angry and upset on the drive home. When they pulled into the driveway, there was a pickup truck parked there. The truck belonged to a male contractor friend of plaintiff's who was doing some work inside the house. The boy got out of the car and slammed into the house, ignoring his father who wanted to continue their discussion. Defendant testified that he remained in the driveway attempting to contact his son on his cell phone.

When some time later, plaintiff started to walk her contractor friend out through the door opening into the garage, she was startled to find defendant there. Defendant screamed loudly at the two of them and they quickly shut the door. Plaintiff testified that defendant was "ranting and raving like a lunatic," yelling "[y]eah. I'm fucking here. Yeah. I'm fucking in here. Come out. . . . I'm going to fucking kick your ass." The parties' son finally went out into the garage and convinced his father to leave. Plaintiff testified that she was afraid and that the altercation left her crying and shaking and ready to pass out from chest pains. When the contractor left shortly thereafter, he noticed defendant driving back toward the house. Defendant remained on the street but finally sped off without returning to the house.

Plaintiff filed a domestic violence complaint the following day alleging criminal trespass and harassment, which was later amended to include stalking. The court entered a temporary restraining order and the matter was set down for final hearing. After hearing three days of testimony, Judge Critchley dismissed the criminal trespass and stalking allegations, reasoning that the civil restraining order allowed defendant to come to the property to pick up and drop off the children, which was what defendant was doing when the altercation occurred. Further, plaintiff had never previously complained about defendant remaining in the driveway to shoot baskets with the children.

On the predicate act of harassment, Judge Critchley found:

"A person commits a petty disorderly persons offense if with purpose to harass another, he 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." I do find that the language here was [uttered] in a [manner] to cause annoyance or alarm. The Plaintiff credibly stated that this was disturbing to her. I might say parenthetically, that in the context in a very difficult and perhaps acrimonious divorce, I think some of the emotional tone of what I heard and the upsetedness comes from the whole process of divorce and not just from this incident. And of course this incident takes place in the broad context of the whole divorce.

So I do find in any event, that there was loud and upsetting language causing annoyance or alarm. I don't find that it was done with a purpose to harass. It appears to be in some way that I cannot completely understand, a reaction to being in the house, and being challenged for being where he was. Or being at the house and having his son go in the house and perhaps not satisfied with that interaction. Or being in the house and having to deal with the other fellow. But in no way does it appear to be something that was preplanned and calculated with a purpose to harass. In fact, it was actually more the other party's going out and discovering him rather, than him going in and doing anything affirmatively. And if things had happened differently there may not have been . . . an incident.

Judge Critchley dismissed the complaint and the temporary restraining order and advised that the parties' civil restraining order ought to be amended to more precisely delineate "what can and cannot happen."

On this appeal, plaintiff contends that the trial court's finding that defendant did not act with purpose to harass plaintiff is not supported by the evidence when considered in the light of defendant's past history of domestic violence. Our review of a trial court's factual findings is limited. We may not overturn the factual findings and legal conclusions of a trial judge "unless we are 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." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord deference to family court factfinding because of the family courts' special jurisdiction and expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Deference is especially appropriate in a case in which the evidence is largely testimonial and involves questions of credibility, because the trial court's ability to see and hear the witnesses provides it a better perspective than a reviewing court to judge their veracity. Id. at 412.

Applying these standards, we are satisfied that Judge Critchley's determination that plaintiff failed to establish that defendant acted purposely to harass her should not be disturbed on appeal. Plaintiff must prove the element of purpose to harass in order to establish the predicate act of harassment under the PDVA. E.K. v. G.K, 241 N.J. Super. 567, 570 (App. Div. 1990). A finding of a purpose to harass may be inferred from the evidence, informed by common sense and experience. State v. Hoffman, 149 N.J. 564, 577 (1997). It may not, however, be supplied by the plaintiff's subjective reaction alone; there must be evidence of the improper purpose. See State v. Washington, 319 N.J. Super. 681, 691-92 (Law Div. 1998).

Contrary to plaintiff's contention on appeal, the trial judge was obviously well aware of the previous history of domestic violence between the parties and took defendant's past conduct toward the victim into account in making his findings. Judge Critchley made a point in his opinion of noting that the incident in the garage would not likely result in a finding of domestic violence if viewed in isolation. The judge determined, however, that given the significant prior history of domestic violence between these parties, a more searching analysis of the incident in the context of that history and the parties difficult, if not acrimonious, divorce was required. See Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006) (court must consider alleged predicate act in light of any previous history of domestic violence).

Giving due regard to the trial judge's ability to determine the credibility of the witnesses, there is substantial credible evidence in the record to support the judge's finding that defendant was upset by events and reacted in a manner disturbing to plaintiff but did not act with a purpose to harass. Our Supreme Court has recently cautioned that, when evaluating whether an individual acted with the requisite purpose to harass, courts are to be especially vigilant in cases involving the interactions of a couple in the midst of a breakup of their relationship. J.D. v. M.D.F., 207 N.J. 458, 487 (2011). Judge Critchley appears to have appropriately exercised that vigilance here.

Affirmed.