DIANN JOHNSON v. SHAWN DUNLAP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3204-04T53204-04T5

DIANN JOHNSON,

Plaintiff-Respondent,

v.

SHAWN DUNLAP,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 9, 2006 - Decided February 7, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Family Division, Mercer County, Docket No. FV-11-000892-05.

Mark S. Guralnick, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant, Shawn Dunlap, appeals the Family Part's January 18, 2005 final restraining order (FRO) against him. The FRO memorializes the court's January 18, 2005 oral decision finding defendant in violation of the Prevention of Domestic Violence Act (DVA), N.J.S.A. 2C:25-17 to -33, based on defendant having committed the offense of harassment against plaintiff, Diann Johnson, between December 18, 2004 and January 4, 2005. The judge determined that the nearly 200 telephone calls, e-mails and text messages the defendant made or sent to plaintiff, plaintiff's new boyfriend of two months and her boyfriend's mother, after plaintiff asked defendant to stop, constituted the making of communications in "any other manner likely to cause annoyance or alarm[,]" contrary to N.J.S.A. 2C:33-4a. We affirm.

On January 4, 2005, plaintiff signed a domestic violence complaint and sought a temporary restraining order (TRO) against defendant, her former boyfriend. Consistent with the DVA, a TRO was entered, ex parte, on the date of plaintiff's complaint. On January 18, 2005, a final hearing was held, which led to the entry of the FRO that defendant now appeals.

Plaintiff and defendant had a dating relationship for several years. They lived together at defendant's home with defendant's son from a prior relationship. Until their breakup, plaintiff, defendant and the child functioned as an intact family unit.

When the parties separated, defendant called or sent e-mails until he was able to induce some communication with plaintiff. Plaintiff saved the messages, responding selectively over a period of time to the messages.

Plaintiff claims that she was harassed by the last round of messages. She concedes the initial messages represented attempts by defendant to revive their broken relationship and initially had no purpose to harass. Plaintiff contends that the calls escalated and the tenor of the calls changed after she asked him to "leave me alone and let me have my life to live."

Defendant contends that his recent pattern of calling and sending e-mails was no different than the previous methods of messaging the plaintiff. He contends their purpose was to renew their fallen relationship, to collect contribution for bills incurred, and to explain the effect of their breakup on his ten year old son. Defendant asserts that there was never a purpose to harass the plaintiff or an intent on his part to cause her annoyance or alarm.

Plaintiff stated, "Originally, yes, I did want to be friends but that was before we started fighting all the time and before he started threatening to blow his brains out and blame it on me." Plaintiff also testified:

After all of this had happened, I've been getting phone calls as early as eight o'clock in the morning, as late as four o'clock in the morning, constantly. If I don't answer my phone, then he continues to call back and call back, minutes apart, sometimes within the same minute. I've gotten voice mails threatening that if I won't talk to him, then he's just going to have to do what he has to do.

He has told me that he is going to come after my boyfriend and beat the piss out of him.

. . . .

He has told me that his friends have found out where I live, that supposedly they won't give him the address, but then he would tell me that he did have the address and that he was going to come after me and Mike.

. . . .

He said that he was going to have me arrested on criminal charges that I owe him money just because of the fact that there are bills through the apartment that are behind in payments, and therefore I should share the responsibility of those bills.

. . . .

I'm a model. He has gone to my photographers, telling them -- pretending to be my father, telling them that they -- that he wants all of the pictures and that I'm a drug addict and that I'm a whore and that -- he e-mails me, calling me a whore and that I look like a slut and --[.]

The court made the following findings:

She testified that subsequent to their departure from one another, that she had received numerous voice mails from him.

. . . .

She further testified that she has advised him to stop calling her but that, in fact, the calls have continued, that she has received approximately 200 calls between the dates of December the 18th and January the 4th of 2005. She further testified that he has called her photographer and that his friends have called her boyfriend and her boyfriend's mother.

She submitted to the Court P-1, which is, in fact, a list of calls that she has documented but that, in fact, is a compilation of the calls that have been submitted to her.

. . . .

There was also testimony from Mr. Pietrowski, Mike Pietrowski, who is her current boyfriend, who testified that the parties have been dating for approximately two months, that he has received calls from Mr. Dunlap in which he has threatened him with bodily harm.

. . . .

On his own behalf, Mr. Dunlap has testified that -- and has submitted to the Court D-1, which is a bill from his cell phone company which lists the incoming calls that he has received from the plaintiff in this matter and also the outgoing calls that he has made to her, his testimony being that many of the calls were to discuss the outstanding bills that remain in the compilation of bills that had been compiled by the two of them during the course of their two year period of living together. He also submitted D-2 which were e-mails that he had exchanged with the plaintiff.

. . . .

The court further finds that that relationship ended around Thanksgiving, that subsequent to that, that the defendant, in an attempt to rekindle the relationship that existed between the parties, had called the plaintiff on numerous times. The court further finds that she, in fact, had advised him to not call her again, and that after that -- after she had, in fact, asked him not to call her again, that the calls continued.

The New Jersey Statute 2C:33-4 defines harassment. Section a. says that a person commits a petty disorderly persons offense if, with the purpose to harass another, he 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.

And the court finds that any other manner likely to cause annoyance or alarm is the controlling factor in this matter. The telephone calls were numerous, that she had asked him to stop the telephone calls but yet they persisted.

As a consequence, the court finds that, in fact, there was an act of harassment that occurred and as a consequence, that constituted an act of domestic violence under the statute, and as a consequence, this court is going to enter a final restraining order.

"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) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 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.

Defendant cites our decision in Bresocnik v. Gallegos, 367 N.J. Super. 178 (App. Div. 2004), in support of his contention that the court erred in its finding of harassment against him. In Bresocnik, the plaintiff alleged as an act of harassment a letter that was hand-delivered to her at the school where she was teaching that was legally innocuous and neither threatening nor irrational. Id. at 182. In that case, the parties dated for six years with no indication of any hostility or violence and they were married for a matter of days before their marriage was annulled. Ibid. The letter complained of, although preceded by letters apparently never received by plaintiff and e-mails sent by defendant without content or description in the record, was an expression of love and regret by someone who had experienced the emotions of a six-year courtship, followed by a marriage that was immediately annulled. Ibid.

In Bresocnik, we cited to our earlier decision in Sweeney v. Honachefsky, 313 N.J. Super. 443 (App. Div. 1998) where we stated:

"We think it plain that all of these factors weigh in defendant's favor. We consider them in the light of our perception that the conduct here involved was, in terms of domestic violence, marginal at best. There was never the slightest suggestion of physical or verbal abuse, defendant never made any threats of any kind to plaintiff or her roommate, and he did not use offensive language. This was a brief dating relationship, which plaintiff broke off and defendant hoped to revive during the course of exactly one week by telephone calls and visits in which plaintiff participated. Perhaps it would have been wiser for him not to have tried to effect a rapprochement with plaintiff, but although his continued attentions may have been unwelcome, it is difficult to fit them comfortably into the rubric of domestic violence, which when harassment is the gravamen, requires a purpose to achieve that result . . . ."

[Ibid. (quoting Sweeney, supra, 313 N.J. Super. at 447-48).]

In Bresocnik, we noted that "the trial judge made no specific finding of a purpose to harass[,]" an essential element of the offense of harassment under subsection (a) of the statute. Id. at 183. We also determined that the facts in that case provided no support for such a conclusion and that such a finding is integral to a finding of harassment. Ibid. We found that the plaintiff's reaction to the defendant's efforts to communicate with her did not supply a basis to infer that his purpose was to harass. Ibid.

We are convinced, however, that the testimony and evidence here, as we have detailed it above, supports the court's finding of harassment. The number of calls, the tenor of the calls, and the threatening nature of the later communications permitted the court, in our judgment, to infer that the communications made were not for a merely neutral purpose but were instead for the purpose to harass. Additionally, the record supports the court's finding that they were communicated in a manner likely to cause annoyance or alarm.

Although the judge did not specifically find a purpose to harass, she recited the statutory definition of N.J.S.A. 2C:33-4a as requiring a purpose to harass before concluding that "the other manner likely to cause annoyance or alarm is the controlling factor in this matter." We are, therefore, satisfied that implicit in the judge's decision and clearly able to be inferred from her comments was a finding of an intent to harass. See State v. Hoffman, 149 N.J. 564, 577 (1997); Cesare, supra, 154 N.J. at 404. We are likewise convinced that the court's finding of harassment as constituting domestic violence proscribed by the DVA is supported by adequate substantial credible evidence.

 
Affirmed.

Plaintiff filed no answering brief. Jeffrey A. Newman, Acting Clerk of the Appellate Division on October 24, 2005, entered an order suppressing plaintiff's brief.

(continued)

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9

A-3204-04T5

RECORD IMPOUNDED

February 7, 2006