LARRY HOWARD v. CHRISTINE HOWARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4593-04T34593-04T3

LARRY HOWARD,

Plaintiff-Respondent,

v.

CHRISTINE HOWARD,

Defendant-Appellant.

_________________________________

 

Submitted February 6, 2006 - Decided March 1, 2006

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Camden County, Chancery Division, Family Part, Docket No. FV-04-002652-05.

Adinolfi and Spevak, attorneys for appellant (Amy C. Goldstein and Scott J. Levine, on the brief).

Archer & Greiner, attorneys for respondent (Lee M. Hymerling and Michael A. Weinberg, on the brief).

PER CURIAM

Defendant, Christine Howard, appeals the Family Part's April 18, 2005, final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. We affirm.

Plaintiff and defendant were married on August 6, 1988. They have three minor children born January 14, 1990, May 26, 1993, and August 28, 1994. In Spring 2005, although the parties resided in the family residence, they slept in different bedrooms. On April 6, 2005, plaintiff filed a complaint for divorce. On April 10 and 11, 2005, the parties involved themselves in heated arguments causing plaintiff to file a complaint under the Act against defendant on April 12, 2005, alleging acts of harassment and assault. A temporary restraining order (TRO) was entered that date barring defendant from the marital residence and any other place where plaintiff may be found. An amended TRO was entered on April 14, 2005, permitting defendant to continue working at a retail pizza store owned by the parties in Jackson, and prohibiting plaintiff from the store pending further order of court. On the same day, defendant filed a cross-complaint, alleging harassment and assault, and a TRO was issued that date against plaintiff. On April 18, 2005, an FRO hearing was conducted by Judge Meloni at the conclusion of which he determined that defendant had committed an act of domestic violence, i.e., harassment, contrary to N.J.S.A. 2C:33-4c, which led to the entry of the FRO that defendant now appeals. Judge Meloni also determined that defendant had failed to prove that plaintiff committed an act of domestic violence, dismissed defendant's cross-complaint, and vacated the TRO entered thereunder.

At the FRO hearing, the court heard testimony from plaintiff, defendant, and Vincent Char, a co-employee of plaintiff. Plaintiff testified as follows. On April 10, 2005, plaintiff confronted defendant concerning defendant leaving their oldest son, Brandon, on the prior day in the company of another boy, the father of whom plaintiff believed was "seeing" the defendant. During the confrontation, defendant crumpled plaintiff's reading glasses, attempted to break plaintiff's cellular phone, and slapped plaintiff in the face with a tennis shoe. The cellular phone was on the nightstand, and plaintiff believed that defendant was going to break it, "because she broke . . . my cell phone earlier. This is my second cell phone as a result of her breaking the first one." "She tried to break my cell phone and I grabbed her hand, we both had the cell phone and I had the cell phone in a position that stopped it in mid point because it was going to get snapped in half." Brandon, who had just come out of the bathroom, came over and took the cellular phone out of defendant's hand. When Brandon returned the phone to plaintiff, plaintiff noticed that it had a "number on it." The parties continued "yelling very loudly" at each other and defendant "took her tennis shoe which was . . . in her hand and slapped [plaintiff] across the face." When asked to describe the force of the slap, plaintiff stated:

It was a good smack. It was a good slap in the face. It did [not] knock me down, it did [not] -- you know, I did [not] see stars, but it hurt. . . . I just said I can [not] believe you hit me[,] or something to that effect. I said, well hit me again, hit me again, I said, you know, I should call 911.

On April 11, 2005, defendant entered plaintiff's bedroom at approximately 5:00 a.m., turned the lights on in the room, turned the radio on loudly, prevented plaintiff from showering and dressing, ripped buttons off two of plaintiff's shirts, removed the party's checkbook from underneath the mattress, and ripped up personal papers of plaintiff. For most of the morning, defendant followed plaintiff around the house wherever he went "stay[ing] right up very close" attempting to gain access to a duffle bag that plaintiff was carrying. While attempting to dress, plaintiff noticed that defendant had taken six of his sport jackets, a suit, and a leather jacket from the house, leaving him with few clothes to wear.

Defendant testified that on the morning of April 10, 2005, she returned home from Sunday services to change clothes and pick up their oldest son with the intent to proceed to the pizza store in Jackson. While their oldest son was in the shower adjacent to the master bedroom, defendant entered the master bedroom for the purpose of advising their son that she was ready to leave for the store. At this time, plaintiff commenced yelling at defendant for allowing their son to be in the company of the other boy. Defendant described plaintiff's actions as "[t]rying to provoke me and aggravate me because if there [is] one thing I did [not] ever want through this whole ugly mess is to involve the children and my two boys[.] [N]ot only was he yelling at me, he was saying your mother is a liar." Defendant testified that it was at this point that "the sneaker incident" occurred.

I had the sneaker and I absolutely did not pull my arm back. What I did was I picked up the sneaker in my hand. Well, I did [not] pick it up, it was in my hand, I lifted it like you would be correcting a child. I do [not] hit my children. Never. I do [not] do that. I held the sneaker to his mouth and I said you need to shut up, you need to stop this, you just need to stop and I -- I'm going to say maybe 4 or 5 times I shook the sneaker at him. It was not this, absolutely not. Now, if it hit -- he says it hit him, if it hit him, I do [not] know, all I know is that I was hitting it towards his mouth[,] like you would reprimand -- if I had a finger I would have gone like that. The sneaker happened to be in my hand.

When asked whether she could recall if "there was any physical contact between the sneaker and [plaintiff]," defendant responded: "No, I've been trying to recollect. I'm sure it could have hit him, I can [not] say that it hit him." The trial judge in describing defendant's mannerism for the record stated "[S]he [is] indicating it was [not] like a round house kind of thing, but more of a lecturing kind of motion with her hand."

Concerning the incident with the cellular phone, defendant testified that she grabbed the phone intending to call the police.

I walked right behind him. I grabbed the cell phone. I picked it up. When I was ready to open it, the cell phone was closed. I picked it up, when I went to open it he jumped behind me to grab the cell phone out of my hand. I had it clasp[ed] in my hand closed. The cell phone was absolutely -- the flip phone was closed.

Defendant testified that no one could have hit the redial button due to the position that the phone was in her hand. While the two struggled over the cell phone, defendant "went down and bumped [her] eye . . . [o]n the nightstand" resulting in a "black and blue discoloration" above her right eye. "It was just very sore to touch and it had an abrasion."

Concerning the incident of April 11, 2005, defendant admitted that she entered the master bedroom for the purpose of getting ready because that's where "[her] clothes are and everything, and it [is] the only shower in the house that we use." When she entered the bedroom, she turned on the closet light, "[n]ot the overhead lights," and turned the radio on, but not loudly. She never touched the volume button on the radio, but only changed the station to "smooth jazz." Defendant admitted that she removed the checkbook from underneath the mattress in the master bedroom where plaintiff had it hidden, together with defendant's personal address book and several receipts. She placed the items in the kitchen because plaintiff had not "given me any money to run the home, and it ha[d] been a month." Defendant returned the checkbook in about an hour to an hour and one-half. Defendant admitted that she followed plaintiff around the house that morning "because he had a gym bag that he has a habit of ta[k]ing[,] and he has different things in the gym bag[,] and I wanted to see what he had or if he had some money." Lastly, she admitted that she had removed the clothes from the house, but had done so only to take the clothes to the cleaners while she housecleaned.

Mr. Char testified that he knew both parties because he was a co-worker of plaintiff. On April 10, 2005, Mr. Char's daughter brought his cellular phone to him, and he saw that he had a message from someone who he thought was plaintiff. He listened to the message, and "heard an argument between Mr. and Mrs. Howard." The message was played in court, and the trial judge heard plaintiff say "[g]et away from me or I'll meet you in court, tramp. Get away from me. Get away from me. Do you want to slap again? Slap again, come on. One more, slap me again."

Following the testimonial hearing, the trial judge found defendant's testimony not credible, and dismissed her cross-complaint and the TRO.

So I find that . . . part of the [defendant's] explanation is not credible. And I do not find that the incident happened the way she alleges it did.

. . . .

I find that there was [not] an act of domestic violence that occurred on . . . April 10[] as alleged[,] and accordingly[, ] that application by [defendant] is denied.

The judge found plaintiff's testimony credible, giving considerable weight to the telephone message, and determined that defendant committed an act of domestic violence, i.e., harassment.

[T]he [c]ourt finds that after [listening] to the tape that it was loud, that it was [not] using crude language, it was [not] using threatening language, other than to say . . . get out of here you fake. And the other note that I made is when he said slap me again corroborating what he [said] happened on that day.

The plaintiff says that the defendant slapped him across the face with a tennis shoe. The defendant does not deny the tennis shoe, [she] denies slapping him in the face with it. Says that it may have touched his face[,] but she was doing it as a mother would do [to] a child [when] lecturing the child about being angry or hostile or acting in an inappropriate way.

. . . .

Now the defendant's response with regard to the missing clothing was that she was taking the clothing to the dry cleaners which would be -- which she does at the change of seasons. The [c]ourt finds that difficult to believe because the parties were not getting along in the least bit. I find it hard to believe that the defendant would do that favor or that accommodation for the plaintiff on her own in light of the hostility between the parties, clearly[,] there is hostility between the parties.

I do [not] think that the tape that we listened to was conjured up. I thought that the witness was a credible witness as he testified as to how the tape got onto his voice mail of his cell phone or how the message got on the voice mail of his cell phone. I do [not] think he particularly wanted to be involved in this matter[,] and it was very credible to me as he said the incident happened. . . .

All right, based on that this [c]ourt finds that the plaintiff in this instance has[,] in fact[,] shown by preponderance of credible evidence that there [has] been a violation of [N.J.S.A.] 2C:33-4[c]. I consider this to be a course of alarming conduct which had as a purpose to alarm or seriously annoy the plaintiff. I think that the defendant was upset about the financial arrangements, was upset about their life together[,] and was attempting to put herself in a position to make life uncomfortable for the plaintiff and have him move out, which I think she thought was going to happen some time in the past, but did [not]. Accordingly[,] I am going to enter a final restraining order against the defendant in that matter.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT FAILED TO MAKE FINDINGS OF FACT OR CONCLUSIONS OF LAW. THEREFORE, IT IS UNCLEAR FROM THE RECORD WHETHER DEFENDANT-APPELLANT WAS FOUND GUILT OF A VIOLATION OF N.J.S.A. 2C:33-4(a), (b) OR (c) AS INCORPORATED INTO N.J.S.A. 2C:25-17 [TO -35].

POINT II.

THE TRIAL COURT ERRED IN FINDING THE DEFENDANT COMMITTED AN ACT OF HARASSMENT AS PLAINTIFF FAILED TO PROVE INTENT AND FAILED TO PROVIDE PRIOR HISTORY OF DOMESTIC VIOLENCE COMMITTED BY DEFENDANT.

POINT III.

IN ORDER FOR THE COURT TO FIND HARASSMENT, THERE MUST BE A PREDICATE ACT OF HARASSMENT, WITHIN SUBSECTIONS (A), (B) OR (C) OF THE STATUTE.

"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). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision below.

Defendant argues that the trial judge erred in concluding that defendant had committed harassment, absent a finding of a prior history of domestic violence, the failure to find a predicate act of harassment, and the absence of intent. Defendant contends that the trial judge failed to differentiate between harassment and domestic contretemps between two divorcing people. Although we acknowledge this limitation on the scope of what represents domestic violence in a marital setting, Chernesky v. Fedorczyk, 346 N.J. Super. 34, 39-40 (App. Div. 2001); Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 56 (App. Div. 1995), we conclude that the actions committed by defendant as found by the trial judge, crossed the line from contretemps to domestic violence.

One violates the harassment statute, N.J.S.A. 2C:33-4c, when "a person[,] . . . with purpose to harass another, . . . [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." Integral to finding harassment constituting domestic violence is a "purpose to harass" by a "'course of alarming conduct' or repeated acts intended to alarm or seriously annoy another." Corrente, supra, 281 N.J. Super at 249 (quoting Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988)). In determining whether a party's actions constitute domestic violence, the statute requires that a trial judge's consideration include factors such as any previous history of domestic violence between the parties, including any threats, harassment, and physical abuse, and the existence of any immediate danger to person or property. N.J.S.A. 2C:25-29a(1) and (2). However, "a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation." Cesare, supra, 154 N.J. at 402.

In the present matter, the trial judge, like in most domestic violence actions, was required to make findings of fact after determining the credibility of the parties. Judge Meloni had the opportunity to assess each party's credibility based upon their testimony and demeanor, and found that plaintiff was more credible than defendant. The series of acts complained of occurred over a two-day period of time, with the judge determining that the acts constituted "a course of alarming conduct," with the "purpose to alarm or seriously annoy the plaintiff." We are satisfied from a review of the trial record, that the decision of Judge Meloni is adequately supported by credible evidence in the record. R. 2:11-3(e)(1)(A). We determine that there is no reason for us to interfere with his decision.

Affirmed.

 

Defendant references the year of the marriage in her brief as 1985, and plaintiff references the year as 1988. For the purpose of this opinion, the court has referenced the year as 1988, because that year is confirmed by the parties' Case Information Statements filed in connection with the matrimonial proceedings now pending in the Family Part, Camden County, under Docket No. FM-04-1440-05-A.

Copies of the cross-complaint and the orders issued thereunder were not submitted to this court as part of the record because defendant did not appeal from the dismissal of her cross-complaint.

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A-4593-04T3

RECORD IMPOUNDED

March 1, 2006