MARY A. STEELE v. KEITH J. DUFFY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5848-01T35848-01T3

MARY A. STEELE,

Plaintiff-Respondent,

v.

KEITH J. DUFFY,

Defendant-Appellant.

 

Submitted December 6, 2005 - Decided February 22, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FV-21-524-02.

Michelle Treiber, Emil W. Nardachone, attorneys for appellant (Michelle Treiber, on the brief).

Carter, Van Rensselaer and Caldwell, attorneys for respondent (William J. Caldwell, on the brief).

PER CURIAM

Defendant Keith Duffy appeals from the May 30, 2002 entry of a Final Restraining Order (FRO) pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, in favor of plaintiff Mary A. Steele. We reverse.

Plaintiff and defendant are both employed as corrections officers. They engaged in a dating relationship for approximately three and one-half years. According to plaintiff, in December 2001, she told defendant that the relationship was over and that she no longer cared to see him. At the time, the two were at her residence and, when he refused to leave after she told him that the relationship was ended, she summoned the police to remove him from the premises.

From then until the middle of March 2002, defendant telephoned her, left messages on her answering machine, stopped by her work area and visited her home uninvited. Plaintiff described these efforts to contact her as "constant" and testified that defendant called her as often as ten times in a single day. Many times she could identify that he was the caller and she would pick up the receiver and then immediately hang up. On other occasions, however, defendant would call from an unfamiliar number and plaintiff would speak with him. She testified that she told him to "get on with [his] life, it's over."

In March 2002, plaintiff had her telephone number changed and the telephone calls from defendant ended. Thereafter, according to plaintiff, he sent her cards and letters, stopped by her work area and came to her residence. Prior to the time when the complaint was filed, plaintiff complained to her supervisor about defendant and he was transferred to another correctional facility. He did not thereafter visit her at work.

During her testimony, plaintiff referred to these events as harassing. However, when asked, she characterized defendant's intentions throughout as being an effort to communicate how much he truly loved her. She testified that she did not want to file a complaint because she did not want to adversely affect defendant's employment.

When the trial judge asked plaintiff what event had caused her to file her complaint, she described an incident in which defendant left a Mother's Day gift on her porch, along with a note that told her to leave it on the porch if she did not want it. She left the items on the porch and, it appears, defendant retrieved them. The next day, however, he left her a note. Although the note is not included in the appellate appendix, plaintiff testified that the note was a "good-bye" letter from defendant. In it, defendant wrote that he understood that the relationship really was over and that he was going to move on.

During the hearing that led to the issuance of the FRO, plaintiff conceded that there was nothing in the final note itself that was threatening or alarming and she did not describe it as harassing, in contrast to her description of the earlier series of communications. Although the final note was not threatening or alarming, plaintiff testified that it was "the last straw" and she filed her complaint the day after she received it.

We need not recount defendant's testimony at trial except to note that he believed that the two had decided to remain friends following their breakup. He described how plaintiff had called upon him for assistance in a variety of ways between the December breakup and the date when the complaint was filed. He denied that he intended to harass or alarm plaintiff at any time and he described the letter that caused her to file her complaint as his effort to bring closure to the relationship by acknowledging that it was over.

Based on this evidence, the judge concluded that plaintiff was entitled to the entry of the FRO. He found that plaintiff was "very credible" and that the acts she described constituted harassment, N.J.S.A. 2C:33-4, thus entitling her to protection. N.J.S.A. 2C:25-19a(13). In particular, he relied on the December incident in which the police had been summoned, the repeated telephone calls and visits between December and March after plaintiff had told defendant that the relationship was over, the letter defendant left at plaintiff's residence on Mother's Day and the final note he left for her on the day before she filed the complaint.

In particular, the judge found that defendant had committed harassment of plaintiff because:

[T]he defendant just simply just didn't give up. He just kept trying to win her back and I have no doubt that somewhere, you know, the defendant has love for this woman. But the problem is that once she says it's over, and I think she was very tolerant in not filing this complaint in -- between December and March when all the phone calls were made. But she said it's over. She said it's through. It's not going to happen. She has a right to terminate the relationship and, at some point in time, you know, the other party just has to accept that it's over.

. . . .

But I do find that the defendant is guilty or has committed an act of domestic violence and has violated N.J.S.A. 2C:33-4. I find that to making the communications that he made, especially the ten phone calls per day, and his constant calling her, it did cause her annoyance. Obviously, it caused her annoyance that she came in and filed this complaint.

Now he's saying now he wrote the good-bye letter on May 14th. But that good-bye letter came almost five months after the -- the parties had broken up and almost five months after the time that the plaintiff told him it was over. I, therefore, find that he did commit an act of domestic violence, namely harassment and I will enter this order.

On appeal, defendant asserts that the record was insufficient to permit the judge to infer that defendant acted with a purpose to harass and that the conduct described in the record does not constitute domestic violence as defined by the Act.

We note that the judge did not specify which subsection of the harassment statute he thought this conduct violated. In light of the plaintiff's testimony that it was only the final note that caused her to seek the FRO, we might presume that the judge based his decision on N.J.S.A. 2C:33-4a. However, as our Supreme Court has noted, a violation of that section includes the requirement that the court find that the communication was made for the purpose of harassment. See State v. Hoffman, 149 N.J. 564, 576-77 (1997). Here, however, there is no evidence that the communication was made for the purpose of harassment. Indeed, even plaintiff testified that defendant's intentions were essentially innocent.

As we have recently reiterated,

In order for a communication or conduct to constitute harassment and an act of domestic violence, the defendant must speak or act with the purpose to harass another, Murray v. Murray, 267 N.J. Super. 406, 408-09 (App. Div. 1993), and the words or conduct must be of a nature to cause alarm. Hoffman, supra, 149 N.J. at 564; D.C. v. T.H., 269 N.J. Super. 458 (App. Div. 1994).

[Chernesky v. Fedorczyk, 346 N.J. Super. 34, 39 (App. Div. 2001).]

Alternatively, we might infer that the judge intended to rely on N.J.S.A. 2C:33-4c as the basis for the FRO, particularly in light of his reference to a course of conduct. That subsection, however, requires both a finding that the conduct was made with the requisite intent, and that the purpose be "to alarm or seriously annoy" the recipient. Here, there is neither a finding that defendant's conduct rose to that level nor evidence in the record to suggest that it did.

In our view, the series of acts which the judge described as harassing communications consisted largely of communications by telephone that had ceased and visits at work that had ended well before plaintiff sought protection. In that context, these prior acts were relevant to the issue of whether defendant had engaged in prior acts of domestic violence, see Cesare v. Cesare, 154 N.J. 394, 413 (1998), but the focus of the inquiry about whether plaintiff had identified an act which would afford her relief should have been on the two letters that were left on her doorstep in May. The record reflects that there was nothing harassing about either of those letters and therefore nothing that would support the order. See J.F. v. B.K., 308 N.J. Super. 387, 391 (App. Div. 1998). Although under some circumstances, an earlier barrage of telephone calls might give ground to interpret otherwise innocent messages to constitute an act of harassment, see Tribuzio v. Roder, 356 N.J. Super. 590, 598-99 (App. Div. 2003), in this record, there are no such facts.

As we have previously commented, the Act

[I]s not designed to interdict all forms of unpleasant exchanges between parties. The law has serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as "a serious crime against society." N.J.S.A. 2C:25-18.

. . . .

The law . . . is not a primer for social etiquette and should not be used as a sword to wield against every unpleasant encounter or annoying interaction that occurs between household members, spouses, parents, or those who have had "a dating relationship." N.J.S.A. 2C:25-19d.

[Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004).]

Tested against this standard, the order cannot be sustained. The judge made no finding that defendant had a purpose to harass when he sent the letters that were the basis for plaintiff's complaint. The record does not reveal a sufficient factual basis to support such a finding or to permit him to infer such a purpose, which we have previously described as "integral to a finding of harassment." Id. at 183 (citing E.K. v G.K., 241 N.J. Super. 567, 570 (App. Div. 1990)). The judge's comment that the communications "[o]bviously . . . caused [plaintiff] annoyance [in] that she came in and filed this complaint" improperly elevated her subjective reaction to an innocent communication to the level of proof of an act of harassment. We have previously found this type of analysis to be inappropriate. See id. at 183.

Reversed.

 

We note that the record on appeal includes an order entered October 8, 2002, clarifying the FRO so as to permit defendant to possess firearms while on duty as a law enforcement officer.

The record on appeal does not contain a copy of any police report relating to this event. Rather, our description is based on plaintiff's assertions at the hearing in connection with the FRO.

(continued)

(continued)

9

A-5848-01T3

RECORD IMPOUNDED

February 22, 2006