M.J. v. G.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5628-04T35628-04T3

M.J.,

Plaintiff-Respondent,

v.

G.D.,

Defendant-Appellant.

________________________________________________________

 

Submitted January 24, 2006 - Decided February 15, 2006

Before Judges Coburn and Collester.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family Part,

Monmouth County, FV- 13-1919-05.

Jabin & Fleming, attorneys for appellant

(Christian P. Fleming, of counsel and on

the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order issued under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We reverse.

At the conclusion of the bench trial, the judge found these facts. Both parties were "very decent people." Plaintiff "loved" defendant, "cared for him," and "did not want to see him get in trouble." Although she dealt for a while with defendant's anger, jealousy, and drinking, they reached a point when they also began "seeing other people." On the night of May 13, 2005, when the incident under consideration occurred, defendant picked up plaintiff at her house and drove with her to a restaurant, where they had some alcoholic drinks and dinner. As they drove from the restaurant, defendant became "agitated." Both were somewhat intoxicated. Although defendant knew that plaintiff wanted to be taken straight home, when he reached an intersection where a right turn would have led to her home, he turned left, intending to pull into a shopping center parking lot on the right-hand side, where he wanted plaintiff to "stay and listen to what he had to say." But while the car was still moving, plaintiff opened the door and started to get out. As a result, she fell on the pavement and suffered minor injury. Police were called to the scene. Defendant said he called them, and there was no contrary testimony, but the judge did not make a finding on this point. After speaking with the parties, the police arrested defendant for criminal restraint and false imprisonment. The judge noted one prior incident. In July 2004, defendant punched plaintiff in the head, causing her to bleed.

Based on those facts, the judge found that defendant had committed the petty disorderly offense of harassment, N.J.S.A. 2C:33-4. Before reaching that conclusion, she noted that without the prior history, she "might have been inclined to say it was a foolish event that happened in a matter seconds, leave it be." But she was impressed by the fact that "the anger and the jealousy and the rage caused [defendant] to put his hand on [plaintiff] on a prior occasion," and said that lead her "to the inescapable conclusion that [she] must issue a final restraining order in this circumstance."

The judge did not find that defendant had committed either false imprisonment or criminal restraint. Instead, relying on N.J.S.A. 2C:33-4, she found that defendant "had the purpose to harass [plaintiff] by engaging in this conduct of not letting her get out of her car, not letting her go home when she wanted to, telling her that she was going to stay and listen to what he had to say." The judge also found that defendant had "communicate[d] with [plaintiff] in a manner likely to cause her annoyance and alarm" and added that because this was a situation "where [plaintiff] did not feel free to get out of her car, and where she was not taken home when she asked to be taken home, I do believe that a final restraining order is the appropriate result."

In pertinent part, the harassment statute provides that

a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes . . . a communication or communications . . . in offensively coarse language, or in any other manner likely to cause annoyance or alarm[.]

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

 
Although defendant argues otherwise, we find no basis for disturbing the judge's finding that defendant had communicated in a manner likely to cause annoyance. It matters not that plaintiff was never alarmed by his conduct; she was clearly annoyed, and rightly so. But defendant also argues that the evidence does not support the judge's conclusion that he had the requisite "purpose . . . to harass." And on that point he is correct. The judge reached the legal conclusion that defendant intended to harass plaintiff, but she did not find any fact to support that conclusion. Indeed, she expressly found to the contrary when she said, while finding the facts, that defendant turned into the parking lot, contrary to plaintiff's wishes, because he wanted her "to stay and listen to what he had to say." Therefore, we are obliged to reverse.

Reversed.

(continued)

(continued)

4

A-5628-04T3

RECORD IMPOUNDED

February 15, 2006