E.D v. P.D

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0692-09T3

E.D.,

Plaintiff-Respondent,

v.

P.D.,

Defendant-Appellant.

_______________________________________________

December 13, 2010

Submitted December 1, 2010 - Decided

Before Judges Fisher and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0243-10.

Copeland, Shimalla, Wechsler & Lepp, attorneys for appellant (Amy Wechsler, of counsel; Tam Abitante, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order (FRO) entered against him and in favor of his ex-wife, pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Because the predicate acts were not alarming or seriously annoying but akin to what we have described as "ordinary domestic contretemps," Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995), because the judge did not find defendant acted with the purpose to harass, and because the judge did not find restraints were necessary to protect plaintiff from immediate danger or to prevent further abuse, we reverse.

The trial consisted only of the testimony of the parties, who represented themselves. Although he did not specifically enumerate the acts of domestic violence found to have occurred, we discern from the judge's credibility findings that he found all the acts alleged by plaintiff to have occurred as plaintiff described them; accordingly, we will assume the judge found the following facts, which we take from plaintiff's testimony:

-- on July 24, 2009, defendant called plaintiff "repeated[ly]";

-- on July 25 and 26, 2009, defendant made "several" telephone calls to plaintiff while she was at work; she told him to send an e-mail, but he "continued to call, refused to send an e-mail, [and] was yelling about" whether she had made payments necessary for their children to play soccer and engage in cheerleading; during these telephone calls, defendant was "very aggressive and hostile";

-- on August 5, 2009, plaintiff was standing outside a yoga studio when defendant "stopped his car, rolled down his window and yelled . . . [']get your ass home and take care of your kids[']";

-- on August 11, 2009, defendant telephoned plaintiff at work again to complain about the soccer and cheerleading fees; according to plaintiff, "the phone call lasted a couple of minutes and I was trying to be business-like, as I was standing in my office and I said to him, [']can you please slow down?['] He said [']no, I won't slow down. If I slow down, I might get nice.['] And the phone call ended [with defendant] saying, 'get it done, bitch,' and he hung up";

-- on August 12, 2009, plaintiff answered their daughter's cellphone; defen-dant was on the line and "insult[ed] and harass[ed]" plaintiff about her "financial history, [her inability] to pay bills";

-- later on August 12, 2009, while returning home from yoga class, plaintiff's vehicle passed defendant's; he "slowed down, . . . stared at me, put up his middle finger and glared, just a crazed look on his face."

Based on these implicit findings, the judge entered an FRO.

Defendant appealed, raising the following arguments for our consideration:

I. THERE EXISTS INSUFFICIENT CREDIBLE EVI-DENCE IN THE RECORD TO SUSTAIN THE FINDING THAT APPELLANT COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST RESPONDENT.

A. THE TRIAL COURT FAILED TO MAKE A SPECIFIC FINDING AS TO WHAT WAS DONE TO CONSTITUTE A PREDICATE ACT OF DOMESTIC VIOLENCE.

B. EVEN IF THE TRIAL COURT HAD MADE A FINDING THAT THE APPELLANT COMMITTED HARASSMENT, IT FAILED TO MAKE A SPECIFIC FINDING OF INTENT TO HARASS.

C. THE TRIAL COURT ERRONEOUSLY FOUND THAT THERE WAS A HISTORY OF DOMESTIC VIOLENCE.

II. THE TRIAL COURT DID NOT MAKE THE RE-QUIRED DETERMINATION THAT A FINAL RESTRAIN-ING ORDER WAS NECESSARY TO PROTECT RESPON-DENT FROM FUTURE ACTS OF DOMESTIC VIOLENCE.

III. THE TRIAL COURT ERRED BY FAILING TO FULLY CONSIDER WHETHER RESPONDENT WAS USING DOMESTIC VIOLENCE COMPLAINT TO GAIN AN ADVANTAGE IN THE PENDING FM AND DYFS MATTERS.

IV. THE CONDUCT OF THE PROCEEDINGS DEPRIVED THE APPELLANT OF HIS RIGHT TO A FULL AND FAIR HEARING.

V. THE CUMULATIVE EFFECT OF THE ERRORS MANDATE A REVERSAL OF THE ENTRY OF THE FINAL RESTRAINING ORDER.

Because we conclude (a) the judge did not find defendant acted with the purpose to harass, (b) the predicate acts were not of sufficient significance, and (c) the judge failed to find an FRO was necessary to prevent an immediate danger or further abuse, the FRO must be reversed without our needing to reach defendant's other arguments.

A

To obtain an FRO pursuant to the Act, a plaintiff must first prove by a preponderance of the evidence that the defendant committed one of the predicate acts referred to in N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. See Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Here, we discern from the judge's oral decision that he viewed plaintiff's allegations as fitting either subsection (a)1 or (c)2 of N.J.S.A. 2C:33-4.3 Harassment as defined in either subsection requires proof that defendant acted "with purpose to harass."

Certainly, an harassment claim does not require a statement from the defendant that he or she acted with an intent to harass the plaintiff. "A finding of a purpose to harass may be inferred from the evidence presented," which may be informed by "[c]ommon sense and experience." State v. Hoffman, 149 N.J. 564, 577 (1997). Here, the judge made no finding that defendant acted with this requisite purpose, nor may defendant's words and conduct be viewed as implicitly embodying a purpose to harass. Accordingly, in the absence of this "integral" finding, Corrente, supra, 281 N.J. Super. at 249, the judge's determination that defendant committed a predicate act cannot stand and the FRO must be reversed.

B

Even when viewed expansively, we cannot conclude from the judge's findings that defendant engaged in any communications or conduct that rose to the level of what the Legislature intended as "domestic violence." For example, in Corrente, the defendant threatened "drastic measure[s]," and later disconnected the plaintiff's telephone service; we held that communication and conduct could not be "characterized as alarming or seriously annoying." Id. at 249. In another case, we drew the same conclusion where the defendant said to the plaintiff, "I'll bury you," Peranio v. Peranio, 280 N.J. Super. 47, 55-56 (App. Div. 1995). And, where the defendant surreptitiously removed the plaintiff's belongings from their apartment and engaged in one occasion of shouting and door slamming, we likewise found no course of alarming conduct sufficient to constitute domestic violence. Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988). See also Kamen v. Egan, 322 N.J. Super. 222, 228 (App. Div. 1999) (holding that a single act of trespass, unaccompanied by violence or a threat of violence, was insufficient to justify issuance of an FRO).

Assessing the judge's opinion in the light most favorable to plaintiff, the evidence suggested only that defendant made multiple telephone calls to plaintiff about the payment of fees for the children's extracurricular activities, berated plaintiff and called her a "bitch," and made angry gestures and faces from a distance. Even had the judge found defendant spoke and acted with the purpose to harass -- which he did not -- these circumstances still failed to meet the standard necessary for entry of an FRO.

As then Judge (now Justice) Long stated for this court in Corrente, this type of conduct -- particularly during the course of matrimonial litigation, as here -- "was plainly never contemplated by the Legislature when it addressed the serious social problem of domestic violence." 281 N.J. Super. at 250. Instead, "the invocation of the domestic violence law" in this case, like Corrente, "trivialize[s] the plight of true victims of domestic violence and misuse[s] the legislative vehicle which was developed to protect them." Ibid.; see also Peranio, supra, 280 N.J. Super. at 56-57. In short, "[t]he domestic violence law was intended to address matters of consequence, not ordinary domestic contretemps such as this." Corrente, supra, 281 N.J. Super. at 250. We find those statements equally applicable here.4

C

The FRO must also be reversed because the judge did not find restraints were necessary "to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127; see also Kamen, supra, 322 N.J. Super. at 228. As explained by Judge Fall in Silver, supra, 387 N.J. Super. at 126-27, the finding of a predicate act satisfies only the first step in a two-step process. Because "the Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence retraining order," plaintiff was obligated to prove and the judge was required to find that restraints were necessary to "protect the victim from an immediate danger or to prevent further abuse." Ibid. Although there are certain acts of domestic violence that may reveal such a need without a judge's express finding, when the claimed predicate act consists of harassment or other types of nonviolent conduct, the judge is required to provide a principled analysis of why a restraining order is necessary to protect the victim from danger or further abuse.

Absent an expressed holding, or other findings from which we might discern such an implicit determination, we must conclude that plaintiff failed to prove the need for an FRO even if the proofs permitted a finding that defendant committed the predicate act of harassment.

1N.J.S.A. 2C:33-4(a) declares that harassment consists of the making or causing to be made, "with purpose to harass another," "a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm."

2N.J.S.A. 2C:33-4(c) declares that harassment consists of the engaging, "with purpose to harass another," "in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person."

3The judge's citation to the predicate acts in question here combined both subsections (a) and (c); that is, the judge stated:

In looking under the complaint that's been filed, it's [N.J.S.A.] 2C:33-4, harassment, a person commits a petty disorderly offense if with the purpose of harassment, he makes or causes to be made communications in an offensive language or in any matter likely to cause annoyance or alarm.

The judge did not thereafter determine which part or parts of the statute were violated here.

4The record is very murky as to whether there was a prior history of domestic violence. Plaintiff asserted "[t]here's a long prior history . . . going back to 1997 of threats and harassment, interfering with my work" but she only provided specifics related to her unsuccessful attempt to obtain an FRO five years earlier. We are mindful that defendant acknowledged "there's been a long history of reported domestic violence [that started] back in 1997," but his unspecific comments seemed to suggest that plaintiff's earlier claims, which were found without merit, were not dissimilar from those asserted here. Moreover, defendant testified and was not contradicted that after the earlier domestic violence action was dismissed, the parties continued to reside together, even after entry of a judgment of divorce. In any event, the judge made only one reference to this testimony -- "I've heard a litany of complaints that go back to 1997" -- and did not find that there was a prior history of domestic violence.