MARIA ORTIZ v. FRANCISCO G. ORTIZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1742-06T31742-06T3

MARIA ORTIZ,

Plaintiff-Respondent,

v.

FRANCISCO G. ORTIZ,

Defendant-Appellant.

________________________________________________________________

 

Submitted July 3, 2007 - Decided July 24, 2007

Before Judges Parker and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-673-07.

Thomas E. Shields, III, attorney for appellant.

Spinato, November, Conte & Acquaviva, attorneys for respondent (Marie L. Napoliello, on the brief).

PER CURIAM

Defendant Francisco G. Ortiz appeals from a final domestic violence restraining order entered on October 5, 2006. We reverse and vacate the final restraining order (FRO).

The facts pertinent to this appeal are as follows. On October 1, 2006, plaintiff Maria Ortiz brought pizza home for her two children. Defendant, her husband, asked why she didn't get pizza for him, and she said she "didn't have money . . . for another pizza." Plaintiff testified that defendant "got very angry and irate, and [after she left the room] he threw the baby's game cube into . . . our entertainment center that had glass." When her son ran to tell her what happened, plaintiff called 9-1-1. While she was calling 9-1-1, defendant said, "[Y]es, go ahead, call them, go ahead, but things are going to get worse."

Defendant did not deny the allegations, but testified that after defendant told him she didn't buy any pizza for him, he "stepped on one of the kids' toy[s], and took it, and threw it . . . . [and] broke the glass."

Based upon that testimony, with no prior history of domestic violence, the trial court found:

I do observe that the . . . plaintiff is upset while she's . . . relating this detail to me. I also find that a final restraining order needs to be entered, not because she's upset, but because what she tells the court is essentially admitted by . . . the defendant.

And I find that [the] criminal mischief occurred in the breaking of . . . some glass, [which] was done intentionally. And I find that there was a threat, and that's the way she took it. Objectively, I find that she was correct in that she certainly had a basis for believing that it was a threat because of what had just happened, and which is essentially admitted . . . by the defendant. Terroristic threats. It's what the law calls a terroristic threat. It's a threat, and it's defined in our statutes, [N.J.S.A.] 2C:12-3.

I also find that criminal mischief occurred. By the way, there is no history given in the . . . complaint of prior domestic violence, but I am entering a . . . final restraining order in any event. The criminal mischief consisted [of] the breaking of the glass that belonged in the house. Criminal mischief is defined in [N.J.S.A.] 2C:17-3.

The court then proceeded to engage in lengthy colloquy with the parties regarding child support and the parties' respective incomes and expenses. The court then entered what is essentially an extensive pendente lite support order without the parties' having an opportunity to negotiate, submit appropriate documentation or make their arguments. Both parties appeared pro se.

In this appeal, defendant argues:

POINT ONE

DEFENDANT'S WORDS, THAT BY CALLING THE POLICE "THINGS ARE GOING TO GET WORSE" FAIL TO CONSTITUTE A TERRORISTIC THREAT WHERE THERE WAS NO INQUIRY OF HOW THOSE WORDS WERE MEANT BY DEFENDANT OR INTERPRETED BY PLAINTIFF; NO PRIOR HISTORY OF DOMESTIC VIOLENCE; AND NO LINK BETWEEN THE WORDS AND ANY ACT TO BE CARRIED OUT.

POINT TWO

NO CRIMINAL MISCHIEF OCCURRED, BY THE BREAKING OF THE PANEL OF GLASS, SINCE OWNERSHIP OF THE GLASS WAS NOT ESTABLISHED AND THE BREAKING WAS NOT INTENTIONAL.

POINT THREE

ALTHOUGH THE TRIAL COURT DID NOT FIND THAT DEFENDANT COMMITTED ANY ACT OF DOMESTIC VIOLENCE HARASSMENT, IT IS ADDRESSED HERE IN THE EVENT THE REVIEWTING [SIC] COURT ELECTS TO TAKE ORIGINAL JURISDICTION OF HARASSMENT.

NO HARASSMENT OCCURRED HERE, SINCE THE BREAKING OF THE GLASS WAS NOT SHOWN TO HAVE BEEN DONE WITH A PURPOSE OR INTENT TO HARASS; NOR WERE THE WORDS "THINGS ARE GOING TO GET WORSE" ESTABLISHED TO HAVE BEEN SAID WITH THE PURPOSE OR INTENT TO HARASS. ALSO, WITH NO PRIOR HISTORY OF VIOLENCE, THESE WORDS AND THE GLASS BREAKING DO NOT CONSTITUTE HARASSMENT.

With respect to terroristic threats, N.J.S.A. 2C:12-3 provides in pertinent part:

a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience. . . .

b. A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him [or her] in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

In Cesare v. Cesare, 154 N.J. 394, 402 (1998), the Supreme Court considered the crime of terroristic threats in the context of domestic violence. The Court found it necessary to consider a plaintiff's history of abuse in evaluating a domestic violence complaint when terroristic threats are alleged. Ibid.

Proof of terroristic threats must be measured by an objective standard. The pertinent requirements are whether: (1) the defendant in fact threatened the plaintiff; (2) the defendant intended to so threaten the plaintiff; and (3) a reasonable person would have believed the threat . . . .

Although we agree that, under an objective standard, courts should not consider the victim's actual fear, courts must still consider a plaintiff's individual circumstances and background in determining whether a reasonable person in that situation would have believed the defendant's threat . . . . Therefore, in a domestic violence context, a court should regard any past history of abuse by a defendant as part of a plaintiff's individual circumstances and, in turn, factor that history into its reasonable person determination.

[Id. at 402-03 (emphasis added) (internal citations omitted).]

Here, the parties had been married for eighteen years and lived in the marital home owned by defendant, with their two children and plaintiff's mother. Plaintiff is employed as a research scientist at Schering-Plough, where she earns $85,000 a year, and defendant is employed at Jet Aviation in Teterboro, earning approximately $88,000 a year.

Accepting plaintiff's testimony as true, it is clear that the objective standard has not been met. Ibid. Defendant acknowledged that he said, "Things will get worse" if plaintiff called the police. That statement, however, could have a host of meanings in the context of this case. Given the absence of a prior history of domestic violence, the absence of allegations of abusive language or behavior on defendant's part during the incident, it appears that defendant's conduct in throwing the child's toy, resulted from his annoyance at stepping on the toy. The breaking of the glass was incidental to the throwing of the toy, not intentional conduct. Nothing in the parties' history indicates that defendant intended to threaten plaintiff physically, or even emotionally when he said, "Things will get worse." Objectively, it appears that the statement was a reflection of the parties' deteriorating relationship.

As noted in Cesare, the elements of a terroristic threat require plaintiff to prove that (1) defendant threatened to kill or harm her; (2) he intended to threaten her; and (3) he did so under circumstances reasonably causing her to believe the threat. Id. at 402. During the course of her testimony, plaintiff did not even testify that she was frightened by defendant's conduct or that she believed he would harm her. After making its findings that defendant had committed acts of terroristic threats and criminal mischief, the trial court asked plaintiff if she was afraid of defendant and she answered, "Yes, sir." Although the court indicated that plaintiff appeared to be "upset" while she was testifying, we do not necessarily infer that her apparent distress in the court room resulted from defendant's conduct. The parties had been involved in a long-term marriage, had two children, and each had a good job. Moreover, plaintiff's mother resided in the marital home. Since there was no prior history of domestic violence and no indication that the parties had appeared in court previously, it is not unusual - and indeed it may be expected - that a plaintiff appearing in court for the first time in a matrimonial matter would appear "upset."

Applying the objective standard to the parties' testimony in the context of their prior history, we find that plaintiff has not proven the elements of terroristic threats. In a similar case, Peranio v. Peranio, 280 N.J. Super. 47, 49 (App. Div. 1995), the parties were separated and in the process of divorcing when they got into an argument and the defendant stated, "I'll bury you." After a trial, the court issued a final restraining order, finding that the defendant's statement constituted harassment. Id. at 52. We reversed, finding that the statement was not made for the purpose of harassing plaintiff and that the statement did not meet the statutory definition of harassment. Id. at 55. We further held:

Separate and apart from these evidential insufficiencies which preclude a finding of the predicate act of harassment, defendant's conduct was plainly never contemplated by the Legislature as domestic violence. Here, there was absolutely no history of threats, harassment, physical or mental abuse or violence between the parties, who were on the threshold of dissolving their marriage when a conflict over property occurred. What happened was that plaintiff and defendant, whose relationship the trial judge correctly characterized as broken down, had a disagreement. As a result, defendant said something to plaintiff in annoyance which upset and alarmed her. Why she was alarmed in light of the pacific history of the couple is hard to say. Although it can safely be observed that defendant's conduct was no model, application of the domestic violence law to it diminishes the suffering of true victims of domestic violence and misused the legislative vehicle which was developed to protect them. It also had a secondary negative effect: the potential for unfair advantage to a matrimonial litigant.

[Id. at 56 (emphasis added).]

As in Peranio, we cannot discern why plaintiff said she was afraid of defendant, given the absence of a history of domestic violence and the circumstances surrounding this incident. See Ibid. Simply stated, on the record before us, defendant's conduct does not rise to the level of a terroristic threat.

With respect to criminal mischief, N.J.S.A. 2C:17-3 provides in pertinent part:

A person is guilty of criminal mischief if he:

(1) Purposely or knowingly damages tangible property of another or damages tangible property of another recklessly or negligently in the employment of fire, explosives or other dangerous means listed in subsection a. of N.J.S.A. 2C:17-2 [causing or risking widespread injury or damage]; or

(2) Purposely, knowingly or recklessly tampers with tangible property of another so as to endanger person or property, including the damaging or destroying of a rental premises by a tenant in retaliation for institution of eviction proceedings.

The criminal mischief statute requires that a person "purposely or knowingly" damage the "property of another." Here, the damage was done to property belonging to defendant. Plaintiff testified that when defendant threw the toy, he broke the glass in "our entertainment center." Thus, the entertainment center belonged to him as much as to plaintiff. One cannot be found guilty of criminal mischief for damaging one's own property. Moreover, although defendant's conduct in throwing the toy was negligent, there is nothing in the record to indicate that he "purposely or knowingly" did so to damage the entertainment center. Plaintiff was not present when defendant threw the toy and her testimony with respect to the allegation is hearsay. N.J.R.E. 802. Defendant acknowledged throwing the toy after he stepped on it. Apparently, he picked up the toy and threw it out of the way, careless of where it landed. While that conduct is not model behavior for a parent, it does not rise to the level of criminal mischief.

We have carefully considered the record in light of defendant's arguments and the applicable law. We are satisfied that the trial court erred in finding that defendant committed terroristic threats and criminal mischief. Accordingly, we reverse and vacate the FRO entered on October 5, 2006.

 
Reversed.

(continued)

(continued)

10

A-1742-06T3

RECORD IMPOUNDED

July 24, 2007