R.H. v. S.A.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

R.H.,

Plaintiff-Respondent,

v.

S.A.G.,

Defendant-Appellant.

________________________________________________________________

July 21, 2015

Argued March 9, 2015 Decided

Before Judges Espinosa and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-2981-13.

Jane A. Herchenroder argued the cause for appellant.

Ioannis S. Athanasopoulos argued the cause for respondent (Athanasopoulos Law Firm, LLC, attorneys; Mr. Athanasopoulos, on the brief).

PER CURIAM

The parties, who were divorced in 2000, each sought restraining orders against the other pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. After conducting a hearing, the trial judge entered final restraining orders (FROs) against each of them. The FRO against defendant was based upon a finding that she committed the predicate act of harassment, N.J.S.A. 2C:33-4(a). This appeal concerns only defendant's appeal from the entry of the FRO against her.

Plaintiff testified that in January 2013, he agreed to permit defendant, his ex-wife, to reside at his home because she had a financial hardship and would also be able to provide care for their children. He described a verbal and physical altercation he and defendant had on June 17, 2013, the day of their youngest son's graduation. When he entered his son's room, he found it messy, with the graduation robe on the floor. He called his son to come upstairs and, in a loud voice, told him to pick up his room. As his son started to pick up his clothing, plaintiff decided to rest on his son's bed.

He testified defendant came into the room and, in front of their son, said, "Why are you yelling at the child? . . . You're trying to enforce control over your young child? You're a low class. You're a whore. You're a prostitute." Plaintiff stated he tried to get out of the room but defendant tried to scratch and hit him to prevent him from leaving. Plaintiff said he "put her hands down" when she tried to scratch him. Their oldest child came into the room and took her to the side so plaintiff could leave. Plaintiff testified defendant was cursing and yelling, and threatened to call the police.

Plaintiff denied hitting defendant. He said she was trying to assault him as he was trying to get out of the room and that she was "trying to bang herself" when he left her in the room. He left the house to look for his son. When he returned, he was arrested on defendant's charge he committed an act of domestic violence.

On the next day, defendant and her sister came to his place of business. Plaintiff testified defendant said,

[O]ne day in prison is not enough. I will show you what I'm going to do with you. You got away . . . from my brother in Egypt . . . . This time I will kill you. I will kill you.

Defendant's sister said, "I will show you," and threw a stapler at plaintiff. Plaintiff explained that defendant's reference was to her brother's assault on him with a knife. Two employees of plaintiff's, Omila Elias and Suffar Amin, testified they witnessed defendant's threats to him at his restaurant.

Plaintiff denied defendant's allegations that he had struck her in 1999, 2004 and 2007, and that in January 2013, he almost pushed her out of the car and screamed at her.

Defendant testified to a history of domestic violence by plaintiff that included incidents while she was pregnant. She said he banged her head against a closet, struck her with his open hands and his feet, beat her, threw a suitcase at her, and almost pushed her out of a car on one occasion.

Defendant provided the following version of the events on June 17, 2013. She admitted confronting plaintiff after he yelled at their son and telling him, "you used all your power . . . only on us." She said he was insulted and ran toward her, pulling her by her hand and hit her with a closed fist in her face. She denied scratching plaintiff, stating he did not give her the chance to do anything. Defendant said she was bleeding from her nose and teeth, and that a bridge in her mouth was broken. She experienced pain in her hand and saw that her finger was injured. She stated plaintiff also hit her right eye and her head. After the police arrived, she was taken to the hospital by ambulance, where her hands were x-rayed and a brace was put on her hand.

Photos of defendant's injuries were received in evidence. Catherine Tansey, defendant's co-worker, testified that when she saw defendant on June 18, 2013, defendant had an injured eye, a puffy and swollen face, and an injured finger.

The trial judge prefaced his findings of fact with assessments of the parties' credibility. He found "neither party to be entirely credible." He said defendant was evasive and volunteered information she wanted to provide that was not responsive to the questions asked her. He found plaintiff's testimony to "suffer[] from the same problem" and that "some of his testimony is simply not believable." He rejected plaintiff's contention that defendant caused the substantial bruising under her eye. Accordingly, the judge said his findings of fact "do not correspond precisely to either party's testimony or evidence, but they are what I found actually occurred."

The judge found that, after plaintiff yelled at their son to clean up his room, defendant made the remark about using his powers which plaintiff viewed as an insult. He further found that plaintiff struck defendant in the face; they continued to struggle and defendant also suffered an injury to her hand. On the following day, defendant and her sister went to plaintiff's business. Noting plaintiff's testimony on what followed was corroborated by his employees, the judge found

They went into his store, said that told him that one day in jail was not enough, that she at one point was going to kill him and made reference to some incident that allegedly happened between [plaintiff] and [defendant's] brother where [plaintiff] testified that her brother had tried to cut him.

In any event, [defendant] said to [plaintiff] that the next time he wouldn't get away, that she would kill him. And her sister threw a stapler . . . .

Based upon these facts, the trial judge found that each party committed a predicate offense: plaintiff committed an act of simple assault, N.J.S.A. 2C:12-1(a), against defendant on June 17, 2013, and defendant committed an act of harassment, N.J.S.A. 2C:33-4(a), against plaintiff on June 18, 2013. The judge found further that, given the "unusual history" between the two parties and the nature of the two incidents, there was a need for each of them to have a FRO against the other to prevent further domestic violence.

Defendant presents the following arguments in her appeal

POINT I

THE TRIAL COURT'S ENTRY OF A FINAL RESTRAINING ORDER AGAINST THE DEFENDANT WAS NOT SUPPORTED BY SUBSTANTIAL, CREDIBLE EVIDENCE AND THE ACTS COMPLAINED OF BY THE PLAINTIFF DID NOT CONSTITUTE DOMESTIC VIOLENCE SUBJECT TO PROTECTION UNDER THE NEW JERSEY PREVENTION OF DOMESTIC VIOLENCE ACT.

POINT II

THE CREDIBLE EVIDENCE BEFORE THE COURT FAILED TO ESTABLISH THAT A FINAL RESTRAINING ORDER WAS NECESSARY TO PROTECT THE PLAINTIFF FROM ANY FUTURE ACTS OF DOMESTIC VIOLENCE.

We are unpersuaded by these arguments.

"In our review of a trial court's order entered following trial in a domestic violence matter, we grant substantial deference to the trial court's findings of fact and the legal conclusions based upon those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)), certif. denied, 216 N.J. 587 (2014). We should not disturb "the factual findings and legal conclusions of the 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." Cesare, supra, 154 N.J. at 412 (citation and quotation marks omitted).

[T]he task of a judge considering a domestic violence complaint . . . [is] two-fold[:]

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. In performing that function, 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. Stated differently, when determining whether a restraining order should be issued based on an act of assault or, for that matter, any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property.

. . . .

The second inquiry . . . is whether the court should enter a restraining order that provides protection for the victim.

. . . .

[T]he 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 v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006) (fourth alteration in original) (citations and quotation marks omitted).]

Defendant first argues that the evidence here failed to establish the predicate act of harassment. We disagree.

The trial judge found defendant violated N.J.S.A. 2C:33-4(a), which provides a person is guilty of harassment

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 . . . .

In State v. Hoffman, 149 N.J. 564 (1997), our Supreme Court stated the following elements are required to establish such a violation

(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.

[Id. at 576.]

The Court noted the distinction between the "the serious annoyance" required by N.J.S.A. 2C:33-4(c), and the "annoyance" required under subsection (a). Id. at 580-81. The Court instructed "the term 'annoyance' should derive its meaning from the conduct being scrutinized. . . . [S]ubsection (a) proscribes a single act of communicative conduct when its purpose is to harass. Under that subsection, annoyance means to disturb, irritate, or bother." Id. at 580. The Court also emphasized the "mode of speech employed," id. at 583, stating "[t]he statute criminalizes speech that invades one's privacy by 'its anonymity, offensive coarseness, or extreme inconvenience' because it is 'aimed, not at the content of the offending statements but rather at the manner in which they were communicated.'" C.M.F. v. R.G.F., 418 N.J. Super. 396, 403 (App. Div. 2011) (quoting Hoffman supra, 149 N.J. at 583).

Defendant's threat to kill plaintiff was not a "trivial and petty communication[]." See J.N.S. v. D.B.S., 302 N.J. Super. 525, 532 (App. Div. 1997). This was also not a "single outburst" that was "the product of transitory anger" and therefore insufficient to establish an intent to harass. See C.M.F., supra, 418 N.J. Super. at 403; see, e.g., State v. L.C., 283 N.J. Super. 441, 448-51 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996); Peranio v. Peranio, 280 N.J. Super. 47, 51-56 (App. Div. 1995).

Defendant delivered the threat to kill a day after the simple assault, when, presumably, sufficient time to cool off had passed. Her stated purpose for making the threat was that one day in prison was insufficient punishment for plaintiff's assault upon her. She underscored the seriousness of the threat by alluding to her brother's prior attack on plaintiff and the fact plaintiff "got away." And she chose to deliver the threat at plaintiff's business, in front of his employees, causing him an enhanced degree of embarrassment. There was adequate evidence to support a finding of the predicate offense of harassment.

Defendant next argues there was insufficient evidence an FRO was necessary to protect the plaintiff from future acts of violence. The need for an FRO is not limited to protection from physical danger. This factor is also satisfied "to prevent further abuse." Silver, supra, 387 N.J. Super. at 127. Since harassment is one of the enumerated predicate acts of domestic violence, the need to prevent further harassment will suffice. Although the court should assess the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to determine if the protection of an FRO is necessary, Silver, supra, 387 N.J. Super. at 127, we note the statute does not limit the court's consideration to those factors. See N.J.S.A. 2C:25-29(a) (listing the factors a "court shall consider but not be limited to"). As the trial judge found, there was a history of discord between the parties, albeit not all created by defendant. Given the nature of the threat and the manner in which it was delivered in light of that history, we discern no reason to disturb the trial judge's conclusion that the FRO was necessary in this case.

Affirmed.