B.S.J v. R.M.J

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1337-07T11337-07T1

B.S.J.,

Plaintiff-Respondent,

v.

R.M.J.,

Defendant-Appellant.

_______________________________

 

Submitted: February 25, 2009 - Decided:

Before Judges Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-792-07.

Buttafuoco, Arce & Price, L.L.C., attorneys for appellant (Nicholas R. Buttafuoco, on the brief).

Neal H. Flaster, L.L.C., attorneys for respondent (Neal H. Flaster, on the brief).

PER CURIAM

Defendant R.M.J. appeals from a domestic-violence final restraining order (FRO) entered against her on October 5, 2007, in favor of plaintiff B.S.J. following a five-day trial before Judge Ann R. Bartlett. The FRO: prohibited defendant from engaging in any further acts of domestic vio lence; barred her from plaintiff's home and place of employment; prohibited her from having any form of communication with plain tiff, his mother, and his business associates, from causing any harassing communications to be made to them, and from stalking them; and prohibited her from possessing any guns, weapons, or firearms identification cards. The FRO also: granted plaintiff exclusive possession of the home in Brick Township; permitted parenting time in accordance with the pendente lite order in the dissolution action; and imposed a civil penalty.

The parties had been married for seventeen years before they separated in the spring of 2006. That separation eventually led to plaintiff's application for a temporary restraining order (TRO) on April 10, 2007, pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 (the Act). Plaintiff alleged that defendant sent harassing e-mails to him and his employer on February 3, 2007, and April 4, 2007, and to him alone on April 3, 2007. He also alleged she made a harassing telephone call to him on March 7, 2007. Plaintiff further alleged that there was a history of harassing communications dating back to June 6, 2005. The harassing e-mails related to plaintiff's sexual ori entation and threats to expose it to various individuals who were then unaware of it, all of which were admitted into evidence.

The judge issued a four-page written decision in which she made the following findings of fact:

The court finds that on February 3, 2007 defendant sent an e-mail to plaintiff's employer, whom she believed to be the presi dent or vice president of [a] real estate company. In the e-mail defendant referred to plaintiff's "alternate lifestyle, his affair, having to subject myself to Aids tests." She also referred to his "male friend" and his "secret." On March 26 she sent an e-mail to plaintiff in which she stated "I'm sure your mother knows where and who you are with so you will not mind it being discussed in court in front of her." On April 3, 2007 defendant sent plaintiff another e-mail saying "If we have to go to court, your mother will end up finding out where and whom you are living with and what you are to too [sic]." Defen dant sent another e-mail on April 4, 2007 to two persons at plaintiff's place of busi ness, one of whom was the president or vice-president and wife of the recipient of the February e-mail. In this latest e-mail [defendant] included a trail of e-mails between the parties about plaintiff's par enting time and addressed plaintiff's child support arrearages and the employer's apparent failure to garnish his wages.

At the time that all these e-mails were sent, plaintiff, who is gay, had not dis closed his sexual preference to his employer or to his mother. Plaintiff is a high-producing real estate sales team leader. He feared that such a disclosure would nega tively affect his referrals from both inside the real estate company and outside clients. He was embarrassed and hurt by the e-mails that revealed his sexual orientation. He was also concerned that the e-mails about the parties' divorce difficulties would put a strain on his relationship with his bosses and exclude him from the movers and shakers within his company. He was so concerned about defendant's threats regarding his mother that he was forced to come out to her in April 2007.

Plaintiff testified that there was a his tory of similar harassing behavior by defendant. In June 2006 defendant sent him an e-mail warning him that she would not tolerate his leaving the children with his mother on his parenting time weekend so that he could go "play homo." In August 2006 she wrote an e-mail which was addressed in the salutation to plaintiff's mother but sent, apparently as a veiled threat, to the e-mail address at his place of business that is used by the entire sales team. In it she stated that he is gay, that he has a whole new set of homosexual friends, and that she has some "nice pictures" from her private investigator to show to plaintiff's mother.

The judge further found that plaintiff was a credible wit ness, whose "testimony was factual, consistent and his manner of delivery and tone manifested the indigna[tion] of someone who had been wronged." Defendant's testimony, on the other hand, "was marked by incredible explanations of why she sent the e-mails with such personal content to plaintiff's bosses and sales team."

The judge concluded that defendant's purpose in making these communications was to embarrass plaintiff as profoundly as possible with the purpose to alarm or seriously annoy him, cit ing N.J.S.A. 2C:33-4c. She also concluded that the purpose of making the communications to his employer and business associates was to place plaintiff in "fear for his standing among his peers, dread that he might lose his customer base or even his job," and that "[i]nflicting such fears falls squarely with the meaning of to 'worry' and to 'trouble' in the [State v. ]Hoffman[, 149 N.J. 564, 581 (1997),] definition." Finally, the judge determined that "the two e-mails to different people at work, interspersed with threatening e-mails to plaintiff, in the totality of circumstances including the history of similar e-mails, constituted a course of conduct." Thus, she concluded that defendant had harassed plaintiff. She also concluded that an FRO would serve the purposes of the Act because plaintiff was entitled to conduct his business without fear of embarrassing e-mails and to enjoy his parenting time "free of thinly veiled threats and extortion messages." This appeal followed.

Defendant contends on appeal that the judge erred in find ing her guilty of harassment because the greater weight of the evidence was inconsistent with a finding of serious harm or annoyance to plaintiff. She also contends that the harassment did not rise to a level mandating the protection of the Act. Plaintiff urges that we should not disturb the judge's factual observations of defendant's demeanor and credibility, that the evidence fully supports finding a violation of N.J.S.A. 2C:33-4c, and that the FRO served the purpose of the Act.

Appellate review of the trial court's fact-finding function is circumscribed so that findings by the trial court are binding on appeal if supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (trial judge's findings of fact should not be disturbed unless "they are so wholly insupportable as to result in a denial of justice"). Trial courts that "hear the case and see the wit nesses . . . are in a better position to evaluate the credibil ity and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). However, even in this latter instance, the reviewing court will "nonetheless accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, ___ U.S. ___, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007). Thus, we will not disturb the judge's credibility determinations here.

The Supreme Court has observed that matrimonial courts pos sess special expertise and experience in the field of domestic relations. Cesare, supra, 154 N.J. at 412. "Because of the family courts' special jurisdiction and expertise in family mat ters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. While we remain cognizant that we owe no special deference to the trial judge's conclusions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we will not "second-guess [a Family Part judge's factual] findings and the exercise of their sound dis cretion," Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

When the Act was adopted, the Legislature declared that "domestic violence is a serious crime against society" because "there are thousands of persons . . . who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants." N.J.S.A. 2C:25-18. Thus, "the focus of the Leg islature was regular serious abuse between spouses. That this is so is underscored by the references to torture, battery, beatings, and killing in the findings." Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995) (emphasis added); see also Corrente v. Corrente, 281 N.J. Super. 243, 247 (App. Div. 1995) (stating same). The Legislature intended the Act "to assure the victims of domestic violence the maximum protection from abuse the law can provide." Peranio, supra, 280 N.J. Super. at 53 (quoting N.J.S.A. 2C:25-18).

Although the Act defines "domestic violence" as encompass ing many physically brutal acts, such as homicide and assault, the Legislature included crimes inducing fear within the defini tion, such as terroristic threats, N.J.S.A. 2C:12-3; lewdness, N.J.S.A. 2C:14-4; harassment, N.J.S.A. 2C:33-4; and stalking, N.J.S.A. 2C:12-10, as crimes constituting domestic violence. N.J.S.A. 2C:25-19. Thus, the Act recognizes that victims of emotional abuse are entitled to "the maximum protection from abuse the law can pro vide." N.J.S.A. 2C:25-18; see also Carfagno v. Carfagno, 288 N.J. Super. 424, 436 (Ch. Div. 1995) ("Recognizing that domestic violence occurs in a relationship where one party asserts power and control over the other, the victim is also protected from mental or emotional harm.").

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in her written opinion dated October 5, 2007. The findings and conclusions of the judge are supported by substan tial, credible evidence in the record, see Rova Farms Resort, Inc., supra, 65 N.J. at 483-84, and are consistent with the Act, Pazienza v. Camarata, 381 N.J. Super. 173, 184 (App. Div. 2005).

 
Affirmed.

(continued)

(continued)

9

A-1337-07T1

RECORD IMPOUNDED

April 24, 2009