M.W. v. M.T.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.W.,

Plaintiff-Respondent,

v.

M.T.W.,

Defendant-Appellant.

____________________________________

February 19, 2016

 

Submitted January 11, 2016 Decided

Before Judges Sabatino and Accurso.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-1788-15.

August J. Landi, attorney for appellant.

Nicholas J. Turco, attorney for respondent.

PER CURIAM

Defendant M.T.W. appeals the trial court's issuance of a Final Restraining Order ("FRO") against her in favor of her former husband, plaintiff M.W., under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The court concluded from the trial evidence that defendant had deliberately harassed plaintiff by calling the police on multiple occasions to check on him while he was having parenting time with their children. The court also found that those repeated acts were sufficiently annoying to justify the imposition of prospective restraints. Applying our deferential scope of review to the trial court's findings, we affirm.

The record indicates that the parties are divorced and the parents of five children. At the time of the trial court proceedings, the two older children primarily resided with plaintiff, their father, and the three younger children primarily resided with defendant, their mother. The parties have had ongoing disputes over custody and parenting time issues, with associated post-judgment motion practice in Monmouth County where defendant now resides. Plaintiff resides in Essex County, where he is employed as a police officer in one of the municipalities in that county.

Plaintiff filed an application for a temporary restraining order ("TRO") under the Act on December 19, 2014, alleging that defendant had persisted in harassing him by requesting the local police in municipalities where plaintiff resides to perform so-called "welfare checks"1 when the children were in his care. The complaint noted that defendant had previously been charged with such harassment in 1998, although apparently that did not lead to the entry of an FRO. At the domestic violence trial in this case, plaintiff elaborated2 further that defendant had made terroristic threats over the telephone in 1998 to plaintiff while he was on duty at the police department. In addition, plaintiff testified that in October 2010, after he had moved to West Orange following his divorce, defendant made multiple and unjustified calls to the West Orange Police Department, which resulted in police going several times to plaintiff's residence for a "wellness check" that apparently confirmed that the children were not being harmed.

According to plaintiff's testimony, the 1998 telephone call threatened him to such a degree that a police lieutenant directed the desk personnel to "make a complaint, and listen to the [telephone] tapes," which led to defendant being arrested at her employment. Plaintiff also testified that when he was living in West Orange defendant requested the police to conduct a similar "wellness check" multiple times.

Plaintiff did acknowledge that on one of those occasions the police had good reason to check on his children because his son had apparently told his mother that he was playing with a "gun," although it was only a toy gun. However, on other occasions, defendant called the West Orange police in situations in which the children had not come to defendant's premises, or had not called or spoken with her.

The incident that prompted plaintiff's domestic violence complaint in this case occurred on December 19, 2014. Under the parenting time arrangements then in place, the parties' sixteen-year-old daughter, who resided with plaintiff, was apparently expected to spend parenting time with defendant on that date. According to plaintiff's testimony, the oldest child would customarily drive them down to their mother's residence. Plaintiff further testified that he offered to drive the sixteen-year-old himself from his residence in Cedar Grove if she wanted him to do so, but was reluctant to force the sixteen-year-old to go to her mother's place if she was unwilling. He explained that he expected his teenage daughters to communicate directly with their mother to mutually arrange visits, and that his attorney had been sending letters asking that such arrangements be made directly with the children. He also testified that defendant did not telephone him or the daughter to discuss the daughter's non-appearance that day, but instead contacted the Cedar Grove Police Department.

As described by plaintiff, in response to defendant's call, police officers from Cedar Grove appeared at his house and told him that they were doing "a well-being check" on his daughter, who was then sleeping. The daughter woke up and stated that she did not feel like going to her mother's residence that day. The police officers accepted her assertion and then left.

Plaintiff contended that these repetitive acts by defendant were annoying and, among other things, required him to report the police involvement at his residence to internal affairs personnel within his own police department. His complaint seeking restraints stated that defendant "repeatedly sends the police to his house for this type of check and he feels harassed." Plaintiff twice advised the court that "I just want to be left alone."

In her own testimony, defendant acknowledged that she had contacted the police on December 19, 2014. She explained that she had done so because her daughters had failed to appear for parenting time in accordance with scheduled plans, and that plaintiff and the daughters had failed to communicate with her. She stated that she had gotten the police involved because of this and other similar situations with her children, and denied trying to harass or bother plaintiff.

After considering the evidence, the trial judge found that the parties, as divorced spouses, had been involved in a domestic relationship that indisputably confers jurisdiction upon the Family Part to enter restraints under the Act. The judge further concluded that defendant had committed the predicate act of harassment under the statute by calling the police on December 19, 2014 for a wellness check. The judge observed that the December 19, 2014 call needed to be "viewed in the context of the defendant having called the police on numerous prior occasions when . . . the plaintiff lived in West Orange." The judge credited plaintiff's testimony that "between 2011 and late 2013 there were at least three or four other calls for welfare checks . . . when the defendant did not get what she believed was her [rightful] parenting time."

Citing the definition of harassment in N.J.S.A. 2C:33-4 and several of the reported cases applying that definition, the judge rejected defendant's argument that her conduct did not amount to harassment. In particular, the judge found unpersuasive defendant's claim that "these are merely innocent acts of attempting to check up on her daughter and what's happening with her parenting time[.]" Instead, the judge was persuaded that her conduct was designed to harass defendant. As the judge explained

There was absolutely no reason for the defendant to have reached out to the Cedar Grove Police on December 19[,] 2014. The plaintiff had made it clear in the text messages that were exchanged that he was not going to engage with the plaintiff regarding what [the sixteen-year-old] was going to do that night.

If the defendant wanted to have contact with [the sixteen-year-old], she needed to reach out for [the sixteen-year-old] directly. She could also do it through her sister, who has provided transportation back and forth before.

The defendant was well aware, based upon the text messages, that [the sixteen-year-old] was not going to be delivered to her house that night without some other direct communication. The plaintiff told her, leave me alone. Instead, she calls the Cedar Grove Police and she sends them to the defendant's home to conduct a "welfare check" on the child. There was no reason for that. And that's exactly where the dual purpose comes in.

While on it's face it seems innocent, but under the circumstances of what's taken place, it's being done to harass, and irritate, and bother, and is -- is certainly alarming and annoying under the circumstances.

So, the predicate act of harassment is made out.

Turning to the Act's second required element of the need for prospective restraints under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), the judge concluded that an FRO was warranted in this case because of defendant's persisting conduct and its capacity to continue to inflict serious annoyance upon her ex-husband. In that regard, the judge found significant the prior history of phone calls to police

Then we have the prior history not only of what happened in 1998, but also the multiple phone calls to the West Orange Police where the same type of conduct was undertaken by the defendant.

The defendant's not going to stop undertaking that conduct without a restraining order being in place. That's clear to the Court.

The judge specifically addressed each of the multiple factors under N.J.S.A. 2C:25-29(a) in determining whether a restraining order is necessary, and found that the majority of them favored such relief. Among other things, the judge noted the previous history of domestic violence; the parties' continued financial intertwining as mutual parents in the aftermath of the divorce; the best interests of the children; and the protection of plaintiff's safety.

Based on these findings, the court issued an FRO that same day. The FRO forbids defendant from appearing at plaintiff's residence or place of work, making or causing anyone else to make harassing communications to him, or threatening to harm him. The FRO deferred to the Family Part in Monmouth County jurisdiction over the parties' other disputes.

On appeal, defendant seeks to vacate the FRO. Her singular point in her brief is that her conduct in requesting "wellness checks" on the children residing with plaintiff by the local police does not comprise a predicate act of harassment supporting entry of restraints under the Act.

The applicable law is well settled. To obtain an FRO under the Act, a plaintiff must establish two key elements by a preponderance of the evidence. First, a plaintiff must prove that defendant committed one of the predicate offenses enumerated in N.J.S.A. 2C:25-19(a). Second, if a predicate offense is shown, plaintiff must also establish that a restraining order is necessary for the protection of the victim. J.D. v. M.D.F., 207 N.J. 458, 475-76, 488 (2011); L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 536 (App. Div. 2011).

In reviewing an FRO issued by the Family Part following trial, our scope of review is limited. The Family Part's findings are binding on appeal "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is particularly appropriate in cases where the evidence is largely testimonial in nature and hinges upon a court s ability to make assessments of credibility and veracity based on its observation of testifying witnesses. Id. at 412. A trial judge, rather than an appellate court, has a better opportunity to evaluate credibility. Ibid.; see also S.D. v. M.J.R., 415 N.J. Super. 417, 429 (App. Div. 2010).

We also must bear in mind the expertise of Family Part judges, who routinely hear many domestic violence cases. Cesare, supra, 154 N.J. at 413. We therefore will 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." S.D., supra, 415 N.J. Super. at 429 (quoting Cesare, supra, 154 N.J. at 411-13).

The key question before us is whether the trial court erred in finding that defendant's behavior in calling the police for a "wellness check" on December 14, 2014, after having engaged in similar conduct on multiple prior occasions, comprises harassment under the statute. Given the particular context of this case and giving due deference to the trial judge's first-hand assessment of the quality and strength of the proofs, we affirm the judge's conclusion that the evidence sufficed to meet the statutory definition.

N.J.S.A. 2C:25-19(a)(13) enumerates that harassment is one of the predicate offenses that may support a finding of domestic violence and the issuance of a final restraining order. Harassment, in turn, is defined in the Criminal Code to include conduct in which a defendant, "with purpose to harass another, . . . [m]akes, 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[.]" N.J.S.A. 2C:33-4(a) (emphasis added). Subsection (c) of the definitional provision alternatively defines harassment to include "any other course of alarming conduct or of repeatedly committed acts with the purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33-4(c) (emphasis added). A single harassing communication may suffice under the Act. State v. Hoffman, 149 N.J. 564, 580 (1997).

Subsections (a) and (c) each require "a different analysis based on the facts alleged." J.D., supra, 207 N.J.at 477. Although both subsections involve two elements, the two differ with respect to the actus reus and the degree of the intended "alarm or annoyance." N.J.S.A.2C:33-4(a), (c).

Under subsection (a), the defendant must make a communication with the purpose to harass that is "likely to cause annoyance or alarm[.]" Ibid.; J.D., supra, 207 N.J.at 477. "Annoyance or alarm" has been said to mean "to disturb, irritate, or bother." J.D., supra, 207 N.J.at 477 (quoting Hoffman, supra, 149 N.J.at 580). Subsection (c), on the other hand, "requires proof of a course of conduct. . . done with the purpose'to alarm or seriouslyannoy' the intended victim." Id.at 478 (emphasis added). The Court has defined "alarm or seriously annoy" as "to weary, worry, trouble or offend." Ibid.(quoting Hoffman, supra, 149 N.J.at 580, 581).

As we have noted, the trial court found that defendant had "absolutely no reason" to call the Cedar Grove Police to request a wellness check, and inferred that her purpose was "to harass, and irritate, and bother[.]" The judge also noted "the multiple phone calls" of the "same type" to the West Orange Police while plaintiff was residing there. These findings are supported by ample credible evidence in the record.

Although we recognize that a parent legitimately concerned that his or her child may be in peril while with another caretaker would be justified in calling the police when she or he is unable to confirm the child's safety by less drastic means, the trial court reasonably concluded in the present case that such repeated calls by defendant were not motivated by such purely benign reasons.

The evidence adduced by plaintiff, which the trial court credited in its opinion, reflected a repetitive course of conduct indicative of an intent to alarm or annoy plaintiff and have his peace at home disturbed by police officers from another municipality. The judge had the prerogative to take that history into account in evaluating defendant's conduct. Plaintiff's status as a police officer himself who is obligated to report to his department his off-duty interactions with other police personnel, further supports a fair inference that, as the judge found, defendant's persistent actions were motivated, at least in part, by a desire to annoy and alarm him. The trial judge did not err in concluding, in essence, that enough was enough. The judge was not obligated, as defendant suggests in her brief, to relegate plaintiff to the limited protection of civil restraints that might have been procured in the underlying FM action. The stronger protections available under the Act were not improperly invoked in this particular setting.

Although it is not clearly argued in defendant's brief, we also reject any claim that the judge erred in his application of the Silver factors in evaluating the need for restraints. Here too, the repetitive nature of defendant's conduct and the ongoing need for the parties as co-parents to interact concerning their five children supports the entry of restraints to help assure that their future interactions are not misused as a means of harassment.

Affirmed.

1 At various places in the record, this is also termed a "wellness check" and a "well-being check."

2 Defendant does not contend in her brief on appeal that she was deprived of fair notice before trial of her alleged prior acts of harassment.