B.P v. J.J.P

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1853-07T31853-07T3

B.P.,

Plaintiff-Respondent,

v.

J.J.P.,

Defendant-Appellant.

__________________________________

 

Argued: September 24, 2008 - Decided:

Before Judges Lihotz and Messano.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-940-08.

Jerome J. Turnbach argued the cause for appellant (Horn, Turnbach & Rybar, LLC, attorneys; Mr. Turnbach, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a Family Part order granting plaintiff's request for entry of a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (PDVA). Defendant argues his communication was made to his daughter and not intended to be transmitted to plaintiff, his wife, or to cause plaintiff annoyance or alarm. Moreover, defendant maintains the conduct was not domestic violence. Defendant also urges reversal of a provision in the FRO restraining him from the premises of the parties' jointly owned and operated business. We have considered the arguments in light of the record and applicable legal standards and we affirm.

The parties jointly own J&J Landscaping (J&J). J&J operates a five acre garden center and retail store. The store sells large and small plants and trees, both wholesale and retail, to contractors, landscapers, and the general public. Following their separation and while their divorce was pending, the parties commenced negotiations to accommodate their joint operation and management of J&J. The business had cash flow problems: bills were behind and back wages were due to employees. The parties' proposed agreement scheduled plaintiff or defendant to operate the store and set forth the priority of payments due to employees and creditors.

On November 4, 2007, as a result of an incident that occurred at the business, plaintiff filed a domestic violence complaint with the Toms River Township Municipal Court alleging harassment. A temporary restraining order (TRO) was entered pending the final hearing.

The hearing was conducted before a Family Part judge and the parties and their daughter testified as to the events underlying plaintiff's request for a FRO. On November 4, plaintiff was scheduled to work at J&J. The J&J employees had quit two days earlier because defendant failed to sign their paychecks. At approximately 12:30 p.m., plaintiff briefly left the store to pick up the parties' youngest daughter. Plaintiff arranged for the parties' twenty-one-year-old daughter to "watch the register" along with her friend "Ashley." A new employee, "Kyle," was in the store stocking shelves. Shortly after plaintiff left J&J, defendant arrived. The parties' daughter testified defendant "started getting mad that we were working there" and he began yelling, stating "we were all going to have to leave."

Ashley called plaintiff and explained defendant was at the store "yelling and screaming." Plaintiff asked Ashley to hand the phone to the parties' daughter and then asked her daughter to allow her to speak to defendant. The daughter said, "wait." Defendant began to leave the store and walked out to his car. Instead of leaving, he returned to the store and continued yelling.

Plaintiff could hear defendant "aggressively cursing" telling their daughter: "F-her"; "She's f-ing crazy"; "I'm going to close this business down"; "We're going to have big f-ing problems"; "I have a big f'ing problem with her now"; "I'll make her lose her house"; "She can't work"; "I'm closing this business down"; and "We're closed." Plaintiff requested entry of an FRO, expressing her fear of defendant because he "doesn't do anything he's supposed to do in all of these court orders."

Plaintiff insists defendant knew she was on the telephone. The parties' daughter stated she did not ask defendant to speak to plaintiff. Although she "was not sure," the parties' daughter "thought [defendant] knew" plaintiff was on the telephone because he was standing approximately two feet away from his daughter looking directly at her.

Defendant did not dispute making the comments attributed to him. He testified he was "venting some anger" upon learning the employees had quit and he believed his daughter, Ashley, and Kyle were working without supervision. Defendant stated he had "absolutely" no knowledge plaintiff was on the telephone and no intention that his daughter relate his comments to plaintiff.

Plaintiff also testified as to a prior altercation with defendant, which resulted in the entry of a temporary restraining order. In May 2007, plaintiff, accompanied by several employees, took J&J paychecks to defendant's home for his signature. Plaintiff stated defendant became violent, grabbed one employee by the neck and told plaintiff he would "crush her skull and put her in the ground." Defendant agreed the incident occurred but only admitted he said he "was going to hit her with a basket." On May 31, 2007, prior to the FRO hearing in that matter, plaintiff consented to the entry of civil restraints and dismissed her domestic violence complaint.

Judge Goldman made detailed fact and credibility determinations, rejecting defendant's argument that his conduct was "mere venting to his daughter of his frustration with the ambient events and nothing more." The judge stated:

I've listened and observed the parties' testimony, listened to the daughter's testimony, and I notice [plaintiff] was nervous. It was certainly uncomfortable sitting here, but she was more afraid and I sensed fear in her voice. I certainly sensed fear in [the daughter's] voice. Part of it is her sickness, but part of it is the genuine fear she felt.

And worse than that is that from [defendant's] voice I sense nothing but contempt for this whole process with a sneering attitude.

. . . .

. . . [I] disagree with [plaintiff's counsel's] analysis of the case because she said [defendant] was yelling at [his daughter]. No, he wasn't yelling at [his daughter]. He was yelling through [his daughter] to his wife. He was yelling at [his daughter] so that [she] would communicate. I do believe that he, . . . knew her mother was on the phone. He was yelling to make a point to his wife through [his daughter], the intermediary. And that's how I view it. He didn't lose his temper at [his daughter].

. . . I think this was something he provoked. This was an argument he provoked.

. . . .

I think he has better control of himself. I think he didn't lose it that day. I think he came spoiling for a fight.

The court determined defendant used "course and offensive" language "to instill fear and take away any peace of mind of the [plaintiff]," such that his statements caused both annoyance and alarm and were intended to intimidate plaintiff. Based on defendant's prior conduct, the court concluded defendant's actions were domestic violence and granted plaintiff's request for an FRO, prohibiting defendant's communication and contact with plaintiff and barring him from plaintiff's home and J&J.

On appeal, defendant again argues his conduct was "mere venting" and not designed to harass, annoy or alarm plaintiff. Further, he maintains he had no direct contact with plaintiff and demonstrated no intent to have his daughter convey a message to harass, alarm or annoy his estranged wife. Defendant also argues his words, although "unpleasant," relate to a matrimonial dispute surrounding finances and amounted to "business contretemps," not domestic violence. Thus, defendant suggests the facts do not establish an act of domestic violence. Finally, defendant argues the trial court abused its discretion in excluding him from the parties' jointly owned business.

We begin by noting the principles governing our review. "The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). 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 required "'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 this court would come to "a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). We intervene only when "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand . . . correction." Ibid.; State v. Castagna, 387 N.J. Super. 598, 604-05 (App. Div. 2006), certif. denied, 188 N.J. 577 (2006). "However, no special deference is accorded a trial judge's interpretation of the law." Connell v. Diehl, 397 N.J. Super. 477, 491 (App. Div.), certif. denied, 195 N.J. 518 (2008).

The trial court found defendant committed acts of "harassment," one of the enumerated predicate offenses, which when committed in connection with domestic violence, supports the entry of an FRO. See N.J.S.A. 2C:25-19a(13). A person is guilty of "harassment," if, "with purpose to harass" another, he or she

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[.]

[N.J.S.A. 2C:33-4.]

A single harassing act can constitute domestic violence for the purpose of the issuance of an FRO. State v. Hoffman, 149 N.J. 564, 580 (1997); McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007).

It is undisputed that plaintiff never spoke directly to defendant on the day of the incident. Thus, we must review whether defendant's indirect communication "through the parties' daughter" satisfied the necessary statutory elements of the offense.

In making his findings, Judge Goldman relied upon our holding in Castagna, supra, 387 N.J. Super. at 605. In Castagna, we noted that to find the defendant's indirect communication to his estranged wife constituted harassment under subsection (a)

the State was required to establish that he spoke to [an intermediary] "with purpose to harass" his wife and with purpose to "cause" [the intermediary] to make a communication in a manner likely to cause annoyance or alarm to his wife. N.J.S.A. 2C:33-4a. Thus, the offense requires a purpose that encompasses two objects harassment of his wife and "causing" [the intermediary] to make the communication.

[Ibid.]

In that matter, we reversed the defendant's conviction for harassment in violation of the FRO because we found no evidence "to support a finding that it was the defendant's conscious object to cause [the intermediary] to convey an alarming message with the purpose of harassing his wife or with awareness that [the intermediary] would deliver the statement in a 'manner likely to cause annoyance or alarm' to his wife." Id. at 608; N.J.S.A. 2C:33-4(a).

Since there is rarely direct proof of intent, "purpose may and often must be inferred from what is said and done and the surrounding circumstances." Id. at 606. In this case, it is undisputed that defendant, while screaming at his daughter and Ashley, screamed, "F-her"; "She's f-ing crazy"; and "There's going to be big f'ing problems." He then left the store but stated he was "coming back." Rather than leaving, defendant re-entered the store and continued to scream while the parties' daughter was speaking to her mother on a cell phone. Defendant's additional comments were threatening and included that he was going to make plaintiff "lose her house," "throw everyone out" and "close the business down." Defendant did not deny any of the ascribed comments and admitted his conduct caused his daughter to become "nervous and upset."

It is undeniable that defendant used "offensively course language" and delivered his message in a threatening tone. Also, on their face, defendant's words were directed to and intended for plaintiff. Presumably crediting the testimony of plaintiff and the parties' daughter, the court specifically made a finding that defendant knew plaintiff was on the phone. The message when heard certainly caused plaintiff "annoyance and alarm."

We reject as disingenuous defendant's argument that he "could not have calculated that [his daughter] would have conveyed the words to her mother in a manner likely to cause [plaintiff] alarm." Both the content and the manner in which the communication was delivered belie this contention. Defendant knew his daughter and plaintiff engaged in regular communication and contact. Further, he knew his daughter was tending the store at plaintiff's request. Defendant's menacing statements were made in very rough language and his accompanying actions were erratic and angry. The parties' daughter and Ashley were alarmed on November 4, and the daughter remained nervous as she repeated the event four days later during the final hearing. Thus, we determine substantial credible evidence in the record supports the finding that it was "defendant's conscious object to cause [his daughter] to convey an alarming message . . . with the awareness that [his daughter] would deliver the statement in a 'manner likely to cause annoyance or alarm' to his wife." Castagna, supra, 387 N.J. Super. at 608.

Further, the trial judge properly reviewed defendant's prior conduct and statements, finding them relevant to support an inference of his "purpose to harass." Id. at 606; see also Cesare, supra, 154 N.J. at 402 (noting "an ambiguous incident [may] qualif[y] as prohibited conduct, based on a finding of violence in the parties' past"). Approximately five months before the event at issue, a TRO was entered at plaintiff's request after defendant made threatening comments to strike her. That altercation also centered on the operation of J&J and particularly regarded its employees. Plaintiff agreed to dismiss the TRO upon entry of civil restraints to limit direct interaction between the parties. In light of defendant's previous history of domestic violence and the overall credibility determinations, the trial judge determined plaintiff was justifiably afraid of defendant's threatening conduct and there existed an "immediate danger to person or property." Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006). Judge Goldman concluded the existing civil restraints were insufficient and it was necessary to enter a domestic violence restraining order to protect plaintiff from defendant's abhorrent conduct. Id. at 126-28. Considering the proofs as a whole satisfies us that the trial judge's factual findings are evidentially supported by the record, and we accept his conclusions. Cesare, supra, 154 N.J. at 413-14; Johnson, supra, 42 N.J. at 162. We, therefore, affirm the entry of the FRO.

Defendant's remaining argument challenges the scope of the restraint. We note the PDVA is intended "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Accordingly, "the court shall grant any relief necessary to prevent further abuse[,]" N.J.S.A. 2C:25-29(b), including "restraining the defendant from entering the . . . place of employment of the victim . . . and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim . . . ." N.J.S.A. 2C:25-29(b)(6). In this instance, we examine whether the trial judge abused his discretion in barring defendant from J&J, the parties' co-owned business and defendant's place of employment.

In rendering his decision, the trial judge stated:

I don't know what's going to be with this business. I don't know whether [defendant] wants it to succeed or not. But . . . I suspect from what I've heard -- and I read between the lines -- that he really doesn't want it to succeed, that he's sabotaging it for whatever reason. It may be divorce oriented to put further pressure on the spouse. But that's not -- it has nothing to do with this decision today.

The judge further ordered the parties' accountant to make arrangements to clarify the total business inventory within two days.

"[I]n reviewing the exercise of discretion[,] it is not the appellate court's function to decide whether the trial court took the wisest course, or even the better course, since to do so would merely be to substitute our judgment for that of the lower court. The question is only whether the trial judge pursued a manifestly unjust course." Gittleman v. Central Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968).

Defendant generally suggests protection of his financial interest in J&J is required, thus the restraint must be modified. Defendant's complaint that plaintiff's sole control will adversely affect his interest in J&J is suspect. Prior to the incident, the vitality of the business was dubious. Defendant expressed an intent to close J&J's doors. No evidence supports J&J's precarious financial health resulted from plaintiff's mismanagement. The court accepted defendant's reasonable request for completion of an inventory by the independent accountant. No other requests were made.

This was the second domestic violence incident following defendant's objection to plaintiff's exercise of her designated business responsibilities. The proposed negotiated agreement made clear that both parties were knowledgeable about the business entity. The proposed agreement attempted to delineate the roles each party would assume going forward. Unfortunately, defendant was not content to follow that course. He was disruptive and interfered when plaintiff was properly exercising her responsibilities.

The trial judge made detailed credibility determinations. He found defendant was "spoiling for a fight" when he entered the business. Moreover, during the hearing, defendant displayed "contempt for th[e] whole process" and displayed "a sneering attitude." Defendant's conduct demonstrates the type of "abusive and controlling behavior" the PDVA seeks to curb. Cesare, supra, 154 N.J. at 397 (quoting Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995)). Plaintiff must be afforded the PDVA's broad protections against such a mind-set. We conclude the restraint was not "manifestly unjust" and further, that the Family Part is the most appropriate forum to amend the scope of the restraints or impose reasonably necessary provisions to safeguard defendant's financial interests.

Following our review of defendant's arguments, the record and the applicable law, we are not "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[.]" Johnson, supra, 42 N.J. at 162. Accordingly, we affirm.

Affirmed.

(continued)

(continued)

15

A-1853-07T3

RECORD IMPOUNDED

November 18, 2008