A.N. v. W.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A.N.,

Plaintiff-Respondent,

v.

W.D.,

Defendant-Appellant.

___________________________

July 20, 2015

Submitted February 2, 2015 Decided

Before Judges Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-0106-14.

Cutolo Mandel LLC, attorneys for appellant (Jeffrey S. Mandel, of counsel and on the brief).

Respondent A.N. has not filed a brief.

PER CURIAM

Defendant W.D. appeals from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A. 2C:33-4(a). We affirm.

We derive the following facts from the record. Defendant sublet a room in a home rented by the father of plaintiff A.N. In June 2013, the utilities were turned off because plaintiff's father did not pay the bill. The father was also two months behind in paying the rent. This angered defendant, who had paid the father $2100 in advance, was current in his $700 monthly rent, and gave the father $700 in advance to pay the utility bill. Defendant wanted his money back.

Plaintiff testified to the following facts. She lived in the house and she and her father decided to move because they could no longer afford to live there. On June 29, 2013, she was in her bedroom packing when defendant stood at her bedroom door and demanded that she not remove anything because he had a judgment on all of the items in the home. He also told her he was going to call detectives. Defendant was angry and "slightly aggressive." He left the home and she followed him because she wanted to calm him down, she feared he would remove the license plates from her car, and her spare car key was missing. While outside, in the presence of a neighbor, defendant angrily yelled at plaintiff, "I'm going to get you" and "your father's a crook . . . he's a criminal, he's an asshole." Defendant also cursed at her, called her "a whore, and a slut, and a cunt," and said "I'm going to sue you all, your father stole my money." He also said he was going to make her life a living hell and knew where she and her boyfriend lived. Defendant also warned her not to remove "[t]hose documents upstairs."

Plaintiff ran back into the house and called the police. She then looked upstairs and discovered that most her father's personal documents were missing, such as credit card statements, tax returns, "pretty much all the important document that [her father] has." She did not feel safe because defendant threatened to get her and said he knew where she and her boyfriend lived. She testified, "I still can't sleep, because I'm stressed. I am just honestly really worried what he might do to me and my family." She admitted there were no prior incidents of domestic violence between her and defendant.

Defendant testified to the following facts. Plaintiff did not live in the house, and he only saw her there "a handful of times at the most." On June 29, 2013, he told her not to remove anything "until the lawyers can work this out." He had retained an attorney to pursue a landlord-tenant action.

Defendant left the house and was followed by plaintiff. He asked plaintiff for his money and proof that the utility bill had been paid. He and plaintiff were yelling at each other in the presence of a neighbor, and he called her father a crook and said he would "find her father and get the money back and make [her father's] life a living hell." He denied calling her obscene names, threatening to make her life a living hell, or taking her spare car key or her father's documents. During his testimony, he became angry and ignored the trial judge's repeated warnings about his inadmissible hearsay testimony.

In an oral opinion, the trial judge found that plaintiff testified truthfully while defendant's testimony was not truthful. The judge specifically found not credible defendant's testimony that plaintiff did not live in the house.1 In making her credibility findings, the judge noted that during the three occasions she saw the parties in court, plaintiff was "trembling and frightened whenever she has been in the defendant's presence. [Plaintiff] has been fearful," while defendant was "aggressive" "demonstrated anger," and "yelled . . . and raised his voice and . . . was threatening about having no relationship to the plaintiff." The judge also noted defendant's angry demeanor during the trial, and expressed concern about his lack of self-control.

Accepting plaintiff's version of events, the judge found that defendant called plaintiff obscene names, threatened that he would find plaintiff and knew where she lived, and put plaintiff in fear of her safety. The judge concluded that defendant violated N.J.S.A. 2C:33-4(a) by making a communication in offensively coarse language, or any other manner likely to cause annoyance or alarm with intent to harass plaintiff. Noting that the parties may encounter each other during the landlord-tenant matter, the judge determined that a FRO was necessary to protect plaintiff and prevent further abuse.

On appeal, defendant contends that the judge erred in entering a FRO because there was no history of domestic violence, the argument between the parties was aberrant, and a FRO was not necessary because he and plaintiff no longer lived together.2 We disagree with these contentions.

Our review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Ibid. Moreover, "[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. "Deference 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)). The question is not whether we would come to a different conclusion were we the trial tribunal. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). We intervene only when convinced that the trial judge's factual findings and legal conclusions "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, "the trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Applying these standards, we discern no reason to disturb the judge's decision.

A plaintiff seeking a FRO under the PDVA must establish by a preponderance of the evidence that the defendant committed an act of domestic violence. Franklin v. Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006). The PDVA defines domestic violence as the commission of any one or more of the fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19(a). Harassment under N.J.S.A. 2C:33-4 is among the fourteen predicate offenses that, if proven, may entitle a plaintiff to the entry of a FRO. N.J.S.A. 2C:25-19(a)(13); N.J.S.A. 2C:25-29(b)(1), (6)-(7). The offense of harassment at issue here is committed when a person, with purpose to harass: "[m]akes . . . a communication . . . in offensively coarse language, or any other manner likely to cause annoyance or alarm[.]" N.J.S.A. 2C:33-4(a). To establish harassment under N.J.S.A. 2C:33-4(a), the plaintiff must prove that "(1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient." C.M.F. v. R.G.F., 418 N.J. Super. 396, 402 (App. Div. 2011).

A finding of harassment requires proof that the defendant acted with a "purpose to harass." See Silver v. Silver, 387 N.J. Super. 112, 124 (App. Div. 2006). "A finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." State v. Hoffman, 149 N.J. 564, 577 (1997). If a defendant's anger motivates a verbal attack on a plaintiff, it does not negate the defendant's "intent to harass" pursuant to N.J.S.A. 2C:33-4(a). C.M.F., supra, 418 N.J. Super. at 404.

Significantly, the commission of a predicate act does not automatically "warrant the issuance of a domestic violence order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Rather, consideration of a domestic violence complaint is a two-fold task. Silver, supra, 387 N.J. Super. at 125. "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:25-19(a) has occurred." Ibid. Second, upon a finding that the defendant committed a predicate act of domestic violence, the court determines whether it "should enter a restraining order that provides protection for the victim." Id. at 126.

For the second prong, "the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. The factors which the court should consider include, but are not limited to

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the protection of the victim's safety; and

(6) The existence of a verifiable order of protection from another jurisdiction.

[N.J.S.A. 2C:25-29(a).]

Although the court is not required to incorporate all of these factors in its findings, "the Act does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.'" Cesare, supra, 154 N.J. at 401-02 (alteration in original) (quoting Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995)).

Ordinarily, domestic violence is "'more than an isolated aberrant non-violent act. While a single sufficiently egregious action may constitute domestic violence even if there is no history of abuse between the parties, a court may also determine that an ambiguous incident qualifies as domestic violence based on finding previous acts of violence.'" Silver, supra, 387 N.J. Super. at 123 (quoting Kamen v. Egan, 322 N.J. Super. 222, 227-28 (App. Div. 1999)). However, the PDVA is not intended to encompass "ordinary domestic contretemps." Corrente, supra, 281 N.J. Super. at 250. Rather, "[t]he [PDVA] is intended to assist those who are truly the victims of domestic violence." Silver, supra, 387 N.J. Super. at 124 (quoting Kamen, supra, 322 N.J. Super. at 229).

We are satisfied that the evidence in this case amply supports the judge's findings that defendant committed the predicate act of harassment under N.J.S.A. 2C:33-4(a) and a FRO was necessary under the totality of the circumstances to protect plaintiff and prevent further abuse. Even though the obscenities defendant used may not be enough themselves to constitute harassment under N.J.S.A. 2C:33-4(a), compare C.M.F., supra, 418 N.J. Super. at 403, with State v. L.C., 283 N.J. Super. 441, 445, 451 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996), defendant's threats to plaintiff and plaintiff's fear of him, combine to satisfy Silver.

Affirmed.

1 On appeal, defendant has abandoned his claim that plaintiff was not a household member.

2 We decline to address defendant's contention, raised for the first time on appeal, that the judge improperly considered irrelevant hearsay evidence. Defendant did not raise this issue before the trial judge, and it is not jurisdictional in nature nor does it substantially implicate the public interest. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997).