G.C. v. L.H.

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NOT FOR PUBLICATION WITHOUT THE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

G.C.,

Plaintiff-Appellant,

v.

L.H.,

Defendant-Respondent.

_________________________________

L.H.,

Plaintiff-Respondent,

v.

G.C.,

Defendant-Appellant.

_________________________________

October 27, 2016

Submitted October 17, 2016 Decided

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket Nos. FV-19-352-15 and FV-19-355-15.

Law Office of Peter J. Laemers, attorney for appellant (Peter J. Laemers, of counsel; Mariann C. Murphy, on the brief).

Respondent has not filed a brief.

PER CURIAM

Appellant G.C. appeals from an April 2, 2015 final restraining order (FRO) entered in favor of respondent L.H. pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. G.C. also appeals the Family Part's separate April 2, 2015 order denying his application for a FRO against L.H., and the court's two June 18, 2015 orders denying his motion for a new trial in both matters. We affirm.

We derive the following facts from the record. The parties were in a dating relationship for approximately six years between 2008 and December 2014. In his complaint seeking a FRO, which he later amended during the one-day trial, G.C. asserted as his predicate act that L.H. harassed him on March 15, 2015 when he encountered her at a half-marathon in New York City in which both parties were participating. G.C. alleged that when L.H. saw him, "she was giving me the middle finger, and [he] . . . did not know why." G.C. also argued that L.H. had "gone to the police and made complaints against" him.

G.C. cited several prior acts of domestic violence that allegedly occurred during the parties' lengthy relationship. He stated that, in July 2013, L.H. emailed him a photograph of herself with a belt around her neck and the subject line, "I'm going to kill myself." On another occasion, G.C. claimed L.H. struck him while she was drunk. G.C. also asserted that L.H.'s husband threatened to "blackmail" him by telling G.C.'s wife about his relationship with L.H. On the question of whether a FRO was necessary for his protection, G.C. stated, "When I came in here, I was going to say . . . unless [L.H.] want[ed] to proceed, I was going to ask to drop it, but if she proceeds, which she is," he wanted to seek a FRO against her.

L.H., who also amended her original complaint at trial, alleged that G.C. had engaged in a course of harassment against her after the parties ended their relationship. She also asserted that G.C. was stalking her.

L.H. testified that G.C. drove past her house several times a day until she complained to the police; took photos of cars in her driveway and then emailed them to her; and frequented establishments around her place of employment at times she was going to and leaving work, and on her breaks. L.H. also stated that G.C. continued to call and send texts to her after the break-up; took pictures of her children and mailed them to her; and repeatedly showed up at the gym where she worked part-time during the one hour per week she was there.

In addition, L.H. testified she found a tracking device inside her car and that G.C. admitted placing it there. She also stated that, the night before the half-marathon, G.C. re-routed calls from her cell phone to G.C.'s own phone. She reported this incident to the police. After she obtained a temporary restraining order against G.C., L.H. testified he sent her an email with the subject line, "Watchful Eye." L.H. also reported this incident to the police. L.H. stated she was "afraid for my safety, and my children's safety."

During his testimony, G.C. admitted he sent L.H. the email, but claimed he did so by mistake and that he immediately went to the police to advise them of the incident. G.C. also testified he stopped driving past L.H.'s home when the police advised him to take an alternate route; went to the gym where L.H. worked because he was member of the gym; and did not know anything about the calls that were allegedly being forwarded to his cell phone.

In his April 2, 2015 oral decision, the trial judge found that L.H.'s testimony was credible, while G.C.'s claims were not. With regard to G.C.'s request for a FRO, the judge concluded that the predicate act of giving someone "the bird" did not constitute harassment within the intendment of the PDVA, and that L.H. had a "good explanation" for why she went to the police to report G.C.'s actions against her. The judge further found the prior alleged acts of domestic violence listed by G.C. were isolated incidents, and that G.C. failed to establish a need for a FRO. Therefore, the judge dismissed G.C.'s complaint.

Turning to L.H.'s complaint, the judge found that G.C.'s course of harassing conduct constituted an act of domestic violence under N.J.S.A. 2C:33-4(c).1 Because G.C. continued to harass L.H. even after she went to the police, and she stated she feared him, the judge concluded that L.H. needed a FRO for her protection.

Thereafter, G.C. filed a motion for a new trial concerning both of the April 2 orders, which the judge denied in a written decision rendered on June 18, 2015. This appeal followed.

On appeal, G.C. argues the trial judge erred by dismissing his request for a FRO and by granting a FRO to L.H. G.C. also asserts the judge "denied [him] due process by refusing to permit [him] to testify and to submit evidence." We disagree with these contentions.

Our review of a trial judge's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A judge's fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). 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)). This is so because the judge has the opportunity to see and hear the witnesses as they testify, thereby developing a "'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting D.Y.F.S. v. E.P., 196 N.J. 88, 104 (2008)). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

In adjudicating a domestic violence case, the trial judge has a "two-fold" task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). The judge must first determine whether the plaintiff has proven, by a preponderance of the evidence, that the defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A. 2C:33-4, and stalking, N.J.S.A. 2C:12-10, as conduct constituting domestic violence. Id. at 125-26. The judge must construe any such acts in light of the parties' history to better "understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim's continued fear of the perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); N.J.S.A. 2C:25-29(a)(1).

If a predicate offense is proven, the judge must then assess "whether a restraining order is necessary, upon an evaluation of the facts set forth in N.J.S.A. 2C:29-(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting Silver, supra, 387 N.J. Super. at 126-27). Whether a restraining order should be issued depends on the seriousness of the predicate offense, on "the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment[,] and physical abuse," and on "whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. l995) (citing N.J.S.A. 2C:25-29(a)); see also Cesare, supra, 154 N.J. at 402.

Applying these standards to the arguments raised by G.C., we discern no basis for disturbing the trial judge's decision to deny G.C.'s request for a FRO, or his decision to grant a FRO to L.H. First, there was substantial credible evidence to support the judge's finding that with respect to G.C.'s application for a FRO for harassment, G.C. failed to satisfy either prong of Silver. N.J.S.A. 2C:33-4 defines harassment, in relevant part, as follows

[A] person commits a petty disorderly persons offense 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; [or]

. . . .

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Proof of a purpose to harass is an essential element of N.J.S.A. 2C:33-4. See L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). "A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)). There must be proof that a defendant's conscious object was to "harass," that is, "annoy," "torment," "wear out," or "exhaust." State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (quoting Webster's II New College Dictionary 504 (1995)), certif. denied, 188 N.J. 577 (2006). Merely knowing that someone would be annoyed, as opposed to having a conscious objective to annoy, is insufficient to prove a purpose to harass. See State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).

"A finding of a purpose to harass may be inferred from the evidence presented[,]" and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577. Because direct proof of intent is often absent, "purpose may and often must be inferred from what is said and done and the surrounding circumstances," and "[p]rior conduct and statements may be relevant to and support an inference of purpose." Castagna, supra, 387 N.J. Super. at 606; see also State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995) ("While [the appellate court] might or might not have made the same inferences, [its] role is one of determining whether the trial judge's inferences were rationally based on evidence in the record.").

Here, we agree with the judge's determination that L.H.'s act of giving G.C. "the middle finger" during a public event did not constitute an act of harassment under N.J.S.A. 2C:33-4(a). G.C. did not claim he was "annoyed" or "alarmed" by the incident. Just as significantly, G.C. stated he was only proceeding with his complaint because L.H. had also asked for a FRO. Under these circumstances, G.C. did not establish that he needed a FRO to protect him from an immediate danger or to prevent further abuse.

Turning to L.H.'s complaint against G.C., the record fully supports the trial judge's finding that G.C. engaged in a course of alarming conduct with the purpose to alarm or seriously annoy L.H. Among other things, G.C. drove past L.H.'s home until the police told him to stop; sent L.H. photos of her children and cars parked in her driveway; admitted he placed a tracking device in L.H.'s car; parked his car where she would see it on her way to and from work and while she was on breaks; and repeatedly showed up during the one hour L.H. worked at the gym. As the trial judge properly concluded, these acts clearly constituted the predicate act of harassment.

There is also substantial evidence in the record to support the judge's conclusion, under the second prong of the Silver test, that a FRO was needed to protect L.H. The judge found that L.H. credibly testified that she was scared of G.C. In addition, although L.H. went to the police, G.C. continued his course of conduct. Under these circumstances, the entry of a FRO was needed to protect G.C. from further acts of domestic violence.2

Finally, G.C.'s argument that the judge deprived him of due process is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Our review of the record indicates that the judge permitted G.C. to amend his complaint, respond to L.H.'s amended complaint, present his proofs, and cross-examine L.H. G.C. therefore received all the process due him under the circumstances of this case.3

Affirmed.

1 The judge also found that G.C. stalked L.H. in violation of N.J.S.A. 2C:12-10.

2 In light of our ruling that the judge's issuance of a FRO to L.H. was fully supported under the harassment statute, N.J.S.A. 2C:33-4(c), we need not address the judge's alternative ruling that G.C.'s conduct also constituted stalking under N.J.S.A. 2C:12-10.

3 G.C.'s notice of appeal stated he was also appealing the trial judge's two June 18, 2015 orders denying his motion for a new trial. However, G.C.'s brief does not address this issue. We therefore assume this issue has been abandoned. Grubb v. Borough of Hightstown, 353 N.J. Super. 333, 342 n.1 (App. Div. 2002) (explaining that issue raised in notice of appeal but not briefed is abandoned). In any event, Rule 4:49-1(a) provides that a trial judge shall grant a new trial if, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." As reflected in our discussion of the trial judge's rulings, it is clear that G.C. did not meet this demanding standard in this case.