L.S. v. P.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

L.S.,

Plaintiff-Respondent,

v.

P.S.,

Defendant-Appellant.

___________________________

November 23, 2016

Argued October 18, 2016 Decided

Before Judges Kennedy and Gilson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0694-15.

Thomas S. Pavics argued the cause for appellant.

Evan R. Weinstein argued the cause for respondent (Weinstein Lindemann & Weinstein, attorneys; Mr. Weinstein, of counsel and on the brief; Melissa E. Gluck on the brief).

PER CURIAM

Defendant appeals from a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A. 2C:33-4(c), and criminal mischief, N.J.S.A. 2C:17-3. We affirm.

The facts were established at a three-day trial where both parties were represented by counsel, and at which both parties, as well as a police officer, testified. At the time of the incident that gave rise to the restraining order, the parties had been married for over fifteen years and they had two teenage children. In December 2014, defendant informed plaintiff that he wanted to separate. Although he continued to live in the marital home, he stopped using the master bedroom and slept in a separate bedroom. After defendant moved out of the master bedroom, plaintiff put a cable lock on the door to that room.

On February 18, 2015, the parties got into a verbal argument concerning the tuition for the children's private schools. During that argument, defendant picked up a glass pitcher, threw it, and it shattered. Plaintiff and the children immediately left the house and plaintiff did not return until approximately 4 p.m.

During the day, defendant text-messaged plaintiff, asking her to "be a good wife and clean up the mess." The text message went on to state

I also need laundry done. I am out of sweaters to wear to run our business. I also appreciate it if you would bring me dinner every night so I don't have to eat potato chips. And I insist that you get ready by 7 a.m. so you have enough time to make the kids breakfast. I don't want them going to school anymore on an empty stomach. Thank you. Oh, it's cheaper to keeper. Welcome home.

When plaintiff returned home, she noticed additional shattered glass on the floor. When she went upstairs, she found the lock to the master bedroom door had been removed and the door itself was broken. Several pieces of furniture in the master bedroom had been turned over and a lamp had been broken. Plaintiff also noticed that defendant had taken a shower in the bathroom in the master bedroom.

After consulting with her attorney, plaintiff contacted the police, sought and obtained a temporary restraining order, and filed a domestic violence complaint against defendant. A Warren Township police officer responded to the home and observed broken glass in the kitchen area, damage to the master bedroom door and turned over furniture. He took pictures of what he observed and those pictures were entered into evidence at the trial.

Defendant does not dispute certain facts concerning what took place on February 18, 2015. He acknowledged that he and his wife got into an argument. He also acknowledged that he smashed a glass pitcher. After his wife and children left, he acknowledged that he broke approximately twelve glasses by throwing them on the kitchen floor. He then acknowledged that he went up to the master bedroom, broke the bedroom door, turned over furniture in the bedroom, and took a shower.

After hearing the evidence presented at trial, on April 22, 2015, the trial court entered an FRO against defendant. The court made detailed findings of facts and conclusions of law, which were set forth on the record. The trial court found that defendant had committed the predicate acts of harassment and criminal mischief. With regard to criminal mischief, the court found that defendant had broken the pitcher and glasses and had deliberately damaged the master bedroom door. Although the court found that the damaged property was jointly owned marital property, the court reasoned that defendant's actions constituted destruction of property of another within the predicate act of criminal mischief.

The court also found that defendant had engaged in the predicate act of harassment under N.J.S.A. 2C:34-4(c). In that regard, the court found that defendant acted with a purpose to harass plaintiff. In making that finding, the court noted that defendant did not stop his destructive behavior after breaking the glass pitcher. Instead, defendant went on to break other glasses, he then went upstairs and broke the door of the master bedroom, turned over furniture and took a shower. The court found that all of that behavior was intended to demonstrate control and manipulation over plaintiff and it was done for the purpose of harassing her.

Finally, the trial court found that plaintiff was in need of an FRO and that the second prong of the test under Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006), had been established.

Defendant now appeals the FRO and he makes three arguments: (1) his conduct did not constitute harassment; (2) he did not engage in criminal mischief by breaking jointly owned marital property; and (3) there was no showing of a need for the issuance of the FRO.

Our scope of review is limited when considering an FRO issued by the Family Part following a bench trial. A trial court's findings are binding on appeal "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). This deference is particularly appropriate where the evidence at trial is largely testimonial and hinges upon a court's ability to make assessments of credibility. Ibid. We also keep in mind the expertise of trial court judges who routinely hear domestic violence cases in the Family Part. Id. at 413. Consequently, we 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. v. M.J.R., 415 N.J. Super 417, 429 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412). Nevertheless, when we address a question of law, a "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." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The PDVA was enacted to further New Jersey's "strong policy against domestic violence." Cesare, supra, 154 N.J. at 400. Domestic violence occurs when an adult or emancipated minor commits one or more of the acts on a person covered by the PDVA. N.J.S.A. 2C:25-19(a). When determining whether to grant an FRO, a trial judge must engage in a two-step analysis. Silver, supra, 387 N.J. Super. at 125-26. "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." Id. at 125; see also N.J.S.A. 2C:25-29(a) (providing that an FRO may only be granted "after a finding or an admission is made that an act of domestic violence was committed"). Second, the court must determine that a restraining order is necessary to provide protection for the victim. Silver, supra, 387 N.J. Super. at 126; see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (explaining that an FRO should not be issued without a finding that "relief is necessary to prevent further abuse" (quoting N.J.S.A. 2C:25-29(b))).

I. Harassment

The trial judge here found that defendant committed the predicate act of harassment in violation of N.J.S.A. 2C:33-4(c). That statute provides that a person commits harassment "if, with purpose to harass another, he [or she]: . . . c. [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33-4(c). A violation of subsection (c) "requires proof of a course of conduct. That may consist of conduct that is alarming or it may be a series of repeated acts if done with the purpose 'to alarm or seriously annoy' the intended victim." J.D., supra, 207 N.J. at 478 (quoting N.J.S.A. 2C:33-4(c)). Our Supreme Court has explained that serious annoyance or alarm means "to weary, worry, trouble, or offend." Ibid. (quoting State v. Mortimer, 135 N.J. 517, 581 (1994)).

Here, defendant does not dispute that he smashed a pitcher, broke glasses, broke the master bedroom door, and turned over furniture in the master bedroom. He argues, however, that all of that was done as an outlet for his frustration and it was not done to harass his wife. Defendant also argues that because the events all took place in one day, they do not constitute a course of alarming conduct or of repeatedly committed acts.

The trial court, however, found that defendant engaged in a series of acts with the purpose to harass his wife. In explaining his decision, the court focused on defendant's intent to "control" and "manipulat[e]" his wife. Thus, defendant argues that there was really no finding of a purpose to harass by defendant. Such a reading is not supported by the record. The trial judge stated that "defendant's purpose to harass may be inferred from the evidence presented and from common sense and experience." The court then went on to state: "[i]n this particular case, the [c]ourt finds that there was an act of domestic violence of harassment." That finding was supported by adequate, substantial, and credible evidence in the record.

II. Criminal Mischief

The trial judge also found that defendant committed the predicate act of criminal mischief. N.J.S.A. 2C:17-3(a); N.J.S.A. 2C:25-19(a)(10). An individual is guilty of criminal mischief if he or she "[p]urposely or knowingly damages tangible property of another." N.J.S.A. 2C:17-3(a)(1). Here, there is really no dispute that plaintiff acted "purposely or knowingly" and did damage the pitcher, glassware, and master bedroom door.

Defendant argues, however, that those items were not "property of another" because they were the joint marital property of the parties. We have rejected this argument. N.T.B. v. D.D.B., 442 N.J. Super. 205, 218-19 (App. Div. 2015). In N.T.B., we held that when one spouse damages marital property that is jointly owned, each spouse holds his or her interest in that property independently from the other. Ibid. Accordingly, we concluded that when the defendant broke the bedroom door in the marital home, he destroyed property of another and, therefore, committed the predicate act of criminal mischief. Id. at 219.

Defendant argues that N.T.B. was issued after the restraining order in this matter was issued and that the holding in N.T.B. is dicta. We reject those arguments. N.T.B. interpreted the existing criminal mischief statute and, therefore, its rationale applies because there was no contrary rule or different interpretation. Id. at 217-21. Moreover, N.T.B. was issued to determine whether a spouse's destruction of a door within the couple's jointly owned marital home may constitute the predicate act of criminal mischief. Ibid. That published decision is, therefore, not dicta.

III. The Need for an FRO

Finally, defendant argues that there was no evidence supporting a finding that plaintiff needed the protection of an FRO. The trial court found, however, that defendant's actions and defendant's own admissions demonstrated that he could engage in further acts of domestic violence. That finding was also supported by substantial credible evidence in the record.

Affirmed.