W.A.W. v. P.R.R.PER CURIAM Defendant-ex-wife, P.R.R., appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered against her after trial. She contends that plaintiff-ex-husband, W.A.W

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3054-09T1

W. A. W.,

Plaintiff-Respondent,

v.

P. R. R.,

Defendant-Appellant.

_______________________________

December 17, 2010

Submitted December 1, 2010 - Decided

Before Judges Gilroy, Ashrafi and Nugent.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County, Docket No. FV-20-000550-10.

Dughi & Hewit, P.C., attorneys for appellant (Kristin M. Capalbo, on the brief).

Joseph P. Depa, Jr., attorney for respondent.

PER CURIAM

Defendant-ex-wife, P.R.R., appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered against her after trial. She contends that plaintiff-ex-husband, W.A.W., failed to meet his burden of proving the two-part test for entry of a restraining order as set forth in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). We agree and reverse.

In Silver, we held that a judge considering a complaint for a domestic violence restraining order has a "two-fold" task: first, the judge "must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred"; and second, "whether the court should enter a restraining order that provides protection for the victim." 387 N.J. Super. at 125-26 (citation omitted).

Cognizant of our limited scope of review, Cesare v. Cesare, 154 N.J. 394, 413, 416 (1998), we conclude that plaintiff did not prove the second part of the Silver test. In the particular circumstances of this case, the trial court should have considered the efficacy of a consent order that had been entered in the parties' matrimonial case to prevent future acts of harassment by defendant. Consideration of that evidence, in the context of no prior history of domestic violence by defendant and the isolated nature of the harassing conduct in this instance, leads us to conclude that a domestic violence order was not needed to protect plaintiff against the risk of future harassment.

Much of the evidence at trial was not disputed. The parties were married in 1998. They did not have children. In October 2007, defendant-wife was granted a domestic violence final restraining order against plaintiff-husband. That order remained in effect at the time of trial in this matter. On May 18, 2009, a dual final judgment of divorce was entered incorporating a property settlement agreement (PSA) negotiated through the parties' attorneys. The PSA as executed was prepared in typewritten form, but it also contained several handwritten paragraphs, including paragraph 27 providing that the parties would "not disclose or discuss this case" or "out-of-Court statements, in the parties' Final Restraining Order" except with their attorneys.

On the morning of May 18, 2009, before arriving at the courthouse for the matrimonial case, defendant placed in the mail three letters addressed to persons that were related to or associated with plaintiff. The letters made accusations and gave warnings of plaintiff's alleged violent proclivities. They recounted specific acts of violence that he had allegedly committed against defendant. Included with the letters were photographs depicting defendant's injuries and damage to property allegedly caused by defendant's violent conduct.

One of the persons to whom the letters were sent was a friend of plaintiff. At trial, the friend testified that he knew plaintiff for more than twenty years through their common interest in martial arts, but his acquaintance with defendant was only as plaintiff's wife. He had not seen defendant since early 2007. When he and his wife received the package she mailed, they were shocked and upset because it was "an attempt at character assassination and to change our relationship" with plaintiff. The friend testified that he found defendant's accusations hard to believe, but receipt of the mailing had "strained" his relationship with plaintiff "a bit."

The other two recipients did not testify. Plaintiff testified that one of them was another friend of his for more than thirty years through his martial arts activities, and the third was his sister-in-law, whom defendant had not seen since 2003. Plaintiff testified that he was "upset, physically, mentally disturbed . . . very annoyed, extremely agitated, and alarmed" when he learned about the mailings. He admitted he was not afraid that defendant would do any physical harm to him, since he was a blue belt, sixth degree, in karate. He testified that:

My biggest concern and anxiety and fear that this was she's threatening me with these packages through third parties, it was obviously intended to me to cause me harm and annoyance and to agitate me, to strike out at me after the divorce was finalized.

. . . .

I was concerned that every potential employer that I was going to deal with, newspapers, she was going to be sending these, what are equivalent of poison pen packages, out to them also.

As an additional basis for his concerns, plaintiff testified that defendant had called him after entry of her October 2007 final restraining order, and she had repeatedly come unannounced to the martial arts facility he attended. He feared that she was purposely trying to cause him to violate the existing restraining order against him so that he would be arrested and charged.

Defendant stipulated at trial that she had mailed the three letters with their enclosures, but she testified that she had done so before she came to court on May 18, 2009 and, thus, she did not intend to violate the non-disclosure provision of the PSA. She said her purpose was to warn persons who might be in a position to prevent harm to children that might come into contact with plaintiff.

Defendant also testified that the contacts alleged by plaintiff after she obtained a restraining order against him were infrequent and for legitimate and necessary purposes. None of them resulted in her actually coming into contact with or speaking to plaintiff. Her few visits to the martial arts facility occurred when plaintiff was not there, and they were for the purpose of dropping off with a mutually agreed-upon person plaintiff's belongings left in the marital home. The one phone call she made to him, leaving a message on his answering machine, was to make arrangements to take a mutual acquaintance to the airport because she could not do so.

The trial court did not find credible defendant's explanation of her purpose in mailing the letters and pictures. The court found that defendant's purpose was "to intervene in [plaintiff's] life." Based on the tone of the letters and the absence of close relationships between defendant and the recipients, the court found that the packages were "meant to arouse and inflame, and . . . to harass [plaintiff]" and that they were "clearly acts of harassment." On appeal, defendant challenges the trial court's findings and conclusions.

In a domestic violence case, the standard of review on appeal is very deferential to the trial court's findings of fact and the conclusions of law based on those findings. In Cesare, supra, 154 N.J. at 413, 416, the Supreme Court placed trust in Family Part judges to assess evidence of domestic violence and the need for a restraining order. Regarding the function of the appellate court, the Court held:

[A]n appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice."

[Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).]

Here, the trial judge's findings and credibility determinations, and his conclusion that defendant had a purpose to harass her ex-husband by mailing the letters and other items, are consistent with the evidentiary record and do not offend the interests of justice. See State v. Hoffman, 149 N.J. 564, 577 (1997) ("A finding of purpose to harass may be inferred from the evidence presented.").

We also agree with the trial court that a single alarming communication may in appropriate circumstances constitute an act of domestic violence warranting a restraining order. See Cesare, supra, 154 N.J. at 402. In McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007), we held that the defendant's sending graphic pornographic pictures of plaintiff to her sister and then implying that he would also send them to her son and her employer were egregious acts of harassment that justified entry of a final restraining order, even in the absence of any history of prior domestic violence by the defendant.

On the other hand, the commission of one or more predicate offenses listed in the domestic violence statute, N.J.S.A. 2C:25-19a, does not automatically warrant issuance of a restraining order. Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). Whether a restraining order should be issued depends on the seriousness of the predicate offense, see Cesare, supra, 154 N.J. at 402, on "the previous history of violence between the plaintiff and defendant including threats, harassment and physical abuse," and on "whether immediate danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248; Peranio, supra, 280 N.J. Super. at 54; see N.J.S.A. 2C:25-29a. The second part of the test set forth in Silver, supra, 387 N.J. Super. at 126, requires that the trial judge assess the plaintiff's need for a final restraining order to protect against immediate danger or future acts of domestic violence. In this case, unlike the facts of McGowan, supra, 391 N.J. Super. 502, there was no evidence of further threats to disclose embarrassing information after the mailings of May 18, 2009.

Here, plaintiff's reaction after he learned of the mailings was to seek a remedy through the matrimonial case. His attorney filed a post-judgment motion on June 24, 2009, seeking a sanction of $25,000 for defendant's alleged violation of paragraph 27 of the PSA. Another Family Part judge heard the motion on September 25, 2009, and denied the requested sanction. On that date, however, according to defendant, the parties entered into an agreement on the record stating: "[I]n the event it is proven by a preponderance of the credible evidence that the Defendant has hereafter violated paragraphs 26 and 27 of the Final Judgment of Divorce, then it is agreed that the Plaintiff is entitled to liquidated damages in the amount of $1,500.00 per violation."1

Apparently dissatisfied with that result, plaintiff filed a complaint for a domestic violence restraining order on the same date as his motion for post-judgment sanctions was denied, September 25, 2009. He alleged harassment based on the May 18, 2009 mailings and for defendant's conduct preceding that date, such as coming to his place of recreation and leaving a message on his answering machine many months earlier.

Defendant argues that if plaintiff was not satisfied with the result in the matrimonial case, he should have taken an appeal in that action. She argues that plaintiff's delay of more than four months, from May to September, in filing a complaint for a restraining order indicates that defendant posed no threat to plaintiff. Additionally, defendant had made no further mailings or other communications regarding plaintiff after executing the PSA with its non-disclosure provision.

The trial court ruled that evidence of post-judgment proceedings in the matrimonial action was irrelevant and inadmissible. We agree that the order in the matrimonial case was not a bar to plaintiff's request for a domestic violence restraining order. Nevertheless, the entry of an order establishing specific monetary sanctions upon defendant's violation of the non-disclosure provision was relevant to assessing the risk that defendant would again commit acts of harassment such as the mailings. The civil order could adequately deter future harassment when considered in conjunction with the absence of any prior acts of domestic violence by defendant and the minimal contacts between the parties that had occurred since their separation. The fact that defendant had not attempted any similar communications since entry of the final judgment of divorce was also evidence that the mailings were an isolated incident of harassment.

We emphasize that our view of the evidence is tied closely to the specific facts of this case. We do not suggest that a civil restraining order may be routinely presented as an adequate defense of a complaint seeking a domestic violence restraining order. In this case, the trial court described plaintiff's need for a domestic violence restraining order as a very close case. The court made a comparative credibility determination, "by maybe just an ounce," in favor of plaintiff, implying that it did not weigh heavily plaintiff's protestations of interference in his life by defendant. Consideration of the deterrent effect of the matrimonial consent order tips the scales, in our judgment, against plaintiff's current need for protection by means of a domestic violence restraining order, especially in view of the single isolated incident of harassment proven against defendant.2

We conclude that entry of a domestic violence restraining order was inconsistent with the relevant and reasonably credible evidence, see Cesare, supra, 154 N.J. at 412, and not necessary to protect plaintiff against future acts of harassment, see Silver, supra, 387 N.J. Super. at 126.

Reversed.

1 Defendant refers to the agreement as a consent order. We have not been provided a written consent order in the appellate record. It appears that the order was orally issued by the judge in the matrimonial action, but we also have not been provided a transcript of the matrimonial post-judgment proceeding.

2 Defendant has also alleged that the trial court displayed favoritism by referring on the record to plaintiff's attorney by his first name while addressing defense counsel by her last name. First-name familiarity with plaintiff's attorney appears to have had its genesis in joint participation of judge and attorney in a recent Inn of Court, which was mentioned during the trial. The court's several rulings during trial adverse to defendant's positions, together with a final unsatisfactory outcome, may have led defendant and her attorney to question the significance of the judge's acquaintance with adversary counsel. We are confident that the references were inadvertent, but they should not occur.