A.B v. L.S.M

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0223-10T3

A.B.,

Plaintiff-Respondent,

v.

L.S.M.,

Defendant-Appellant.

________________________________________________________________

Argued March 15, 2011 Decided May 6, 2011

Before Judges Parrillo and Espinosa.

On appeal from Superior Court of New Jersey, Family Division, Hunterdon County, Docket No. FV-10-000138-11.

Kenneth W. Thomas argued the cause for appellant (Lanza & Lanza, LLP, attorneys; Mr. Thomas, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from the entry of a final restraining order (FRO) against him that was based upon harassment, N.J.S.A. 2C:33-4(a) and (c). For the reasons that follow, we do not find the evidence sufficient to support a finding of harassment under N.J.S.A. 2C:33-4(a) but affirm the entry of the order based upon N.J.S.A. 2C:33-4(c).

The parties lived together for approximately four years and had two daughters together. At the time of the FRO hearing, their daughters, "Heidi"1 and "Barbie," were three years and twenty-two months old, respectively. Plaintiff had two other children, "Brenda," ten, and "Oscar," fourteen, and defendant had a daughter, "Susie," fourteen.

At the FRO hearing, plaintiff testified about an incident that occurred on August 13, 2010. She stated that when defendant came to pick up the children for parenting time that day, he told her he wanted to talk to her; that "he really, really missed [her] and he wanted to hug and kiss [her.]" She told him that she was not interested and had "no desire to have him touch [her.]"

At approximately 9:00 p.m. that evening, plaintiff received a text message from defendant. He stated that the girls forgot a teddy bear and blanket. She sent a text message back, asking if he needed them and he replied, "yes." Plaintiff brought her friend, Lori Ann Mortarulo, with her to defendant's residence. She explained:

Because every time he comes to my house he wants to hug me and he wants to come close to me and talk in front of the girls. And I don't want to. I keep telling him I don't want to.

Plaintiff stated that when she went to the door to hand him the items, defendant told her that the children were already asleep, which led her to believe that the call regarding the teddy bear and blanket was merely a ruse to get her to come to his home. He grabbed hold of her to keep her from leaving. She told him to "please stop and to please leave [her] alone, that [she didn't] want to be touched."

Mortarulo testified that when plaintiff went to the door, defendant came outside and, instead of taking the teddy bear and blanket, he grabbed plaintiff's wrist. Plaintiff backed away and defendant moved in closer, giving her a bear hug. Mortarulo testified that plaintiff's hands went down to her side, stiff, and that when she returned to the car, plaintiff was shaky, pale, and upset.

Plaintiff applied for and obtained a temporary restraining order (TRO) on August 16, 2010. Defendant acknowledged service of the TRO on the same date.

At the FRO hearing, plaintiff also testified about incidents that occurred both before and after August 13.

Plaintiff testified that, on June 18, 2010, she returned home after picking up Oscar and his friend from school. Defendant was waiting, angry that she had picked up her son's friend and had not picked up his daughter. He called plaintiff a "bitch" and told her that she had ruined his daughter's birthday. Plaintiff admitted that she "may have" yelled and cursed at him as well. Defendant attempted to leave the driveway in plaintiff's car, but got a flat tire by driving over a bicycle and had to return to the driveway. When he put a jack under the car to change the tire, plaintiff told him to stop, that he had done enough damage for one day. She attempted to take the jack and he pushed her on her shoulders. When she tried to remove the jack a second time, he pushed her again. At this time, plaintiff threw Heidi's "sippy cup" at defendant, breaking his nose. Defendant left with Heidi, stating that he was going to dinner and shopping.

That evening, defendant told plaintiff that they had to talk. He offered her two choices - either he would leave or he was going to live in the basement. She replied that he should leave. Following this incident, each of the parties applied for temporary restraining orders that were subsequently dismissed.

On or about August 7, 2010, defendant went to plaintiff's home, unannounced, shortly after 9:00 pm, and knocked on her bathroom window. He said that he wanted to sit and talk with her. Plaintiff testified that she told him, "I didn't want him around me, I don't want him anywhere near me, I had enough of him and his daughter, and I wanted them to leave me alone." She stated that he sent her a text message on his way home in which he said he had no idea how much he had hurt her and promised to leave her alone. However, the incident that prompted plaintiff to seek this restraining order occurred just six days later.

On another occasion, she went to pick up the girls from defendant's home with her son, Oscar. Plaintiff testified that defendant was crouching down behind the girls, grinning at her. She stated that she did not recognize her daughter; that defendant cut the "three year old's hair from halfway down her back to her shoulders and he gave her bangs straight across. And he also cut [the] 22 month old daughter's hair straight across the front and when it was wet it wasn't straight." She asked him what he had done to their hair. Plaintiff testified that he grinned at her, looked at her son and said, "how do you live with that bitch[?]" Oscar testified and corroborated his mother's account.

When asked why defendant had cut the girls' hair, plaintiff testified that defendant knew she liked Heidi's hair as it was and she thought it was "to harass [her] to get [her] to yell or do something that [she's] not supposed to in front of the girls." She said defendant thought it was funny; he was grinning at her when she got there.

Plaintiff testified that defendant cut Heidi's hair again on the Thursday prior to the FRO hearing, a date three days after she obtained a TRO. On this occasion, defendant cut an inch from one side of Heidi's hair, but not from the other side, and also cut her bangs again. Plaintiff also testified that, as she was attempting to get her daughters to come with her, defendant told Heidi that he did not know when he would see her again "because mommy was being mean and mommy was keeping her away from him." These statements were made despite the fact that defendant had parenting time every Monday and Thursday and alternate weekends pursuant to a court order.

Plaintiff testified further that defendant had sent her nasty emails on a regular basis, calling her names. In one email, he stated he was glad her dog ran away and got killed by a car, that even her dog ran away to get away from her because she is so mean.

Defendant testified that he did not ask plaintiff to bring a teddy bear to his home on August 13. He said he texted plaintiff to tell her Heidi had a difficult time falling asleep because she did not have her teddy bear. When plaintiff offered to bring it to his home, he accepted the offer. He admitted hugging her and said that her reaction "was strange because normally she accepts hugs but in this particular case her arms were straight down . . . ." Defendant denied that he grabbed her wrist and that plaintiff said anything to him about the hug. His purpose in hugging her was not to harass her but to thank her for bringing the teddy bear.

Defendant admitted going to plaintiff's home unannounced and knocking on her bathroom window in early August. He stated that plaintiff came to the door, hugged him, and started crying; that they sat and talked for approximately one half hour before plaintiff started to get angry and he decided to leave. Defendant denied plaintiff ever told him not to touch her.

Although defendant testified that things were going along well between them in early August, he admitted that he sent plaintiff an email on or about August 4 in which he said that even her own dog risked her life to get the hell away from plaintiff. Defendant stated that he apologized the next day.

Defendant admitted cutting his daughters' hair as part of "a beauty makeover" because his daughter asked him to cut her hair. He acknowledged that plaintiff was very angry when she saw the haircuts, yelled extremely loudly and stated that he ruined their hair. Defendant denied cutting his daughter's hair a second time or telling his daughter that he did not know when he would see her again.

The court rejected defendant's denials and versions of events, finding plaintiff's testimony to be more credible. The court concluded that defendant had committed acts of harassment under N.J.S.A. 2C:33-4(a) and (c) and entered an FRO. In this appeal, defendant argues the FRO was entered erroneously because he did not harass plaintiff, specifically, that he did not act with the requisite purpose to harass.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104.

N.J.S.A. 2C:33-4 states, in pertinent part:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, 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;

. . .

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[Emphasis added.]

Under either section of this statute, a defendant must act with the purpose to harass. Subsection (a) targets specific modes of speech, including the use of "offensively coarse language," and requires that the manner of speech be "likely to cause annoyance or alarm." The requisite purpose to harass is satisfied by a purpose "to disturb, irritate, or bother." State v. Hoffman, 149 N.J 564, 580 (1997). Subsection (c) requires a course of repeated conduct, motivated by a higher degree of purpose, "to alarm or seriously annoy." See ibid.

N.J.S.A. 2C:33-4(a) criminalizes speech that invades one's privacy by "its anonymity, offensive coarseness, or extreme inconvenience" because it is "aimed, not at the content of the offending statements but rather at the manner in which they were communicated." Id. at 583-84 (quoting State v. Fin. Am. Corp., 182 N.J. Super. 33, 39-40 (App. Div. 1981)). There is no evidence that any of defendant's communications were sent anonymously, at extremely inconvenient hours, or "in any other manner likely to cause annoyance or alarm." Therefore, under the facts as found by the court here, the only communications that could arguably support a finding of harassment under subsection (a) occurred when defendant referred to plaintiff as a "bitch" or used other "nasty names." The evidence reflects a tumultuous end to the parties' relationship in which coarse language is attributed to and admitted by each of them. Within the context of the parties' disintegrating relationship, we are satisfied that these comments did not constitute acts of harassment under N.J.S.A. 2C:33-4(a).

We next turn to consider the sufficiency of the evidence to support a finding of harassment under N.J.S.A. 2C:33-4(c). The evidence deemed credible by the trial court reflected that, at least as early as August 7, plaintiff told defendant that she did not want him near her and wanted to be left alone. Nonetheless, as the trial court found, defendant created a pretext for plaintiff to come to his house just days later to deliver a toy for a child already asleep and used the occasion to hug her and attempt to hold her against her will. He engaged in additional conduct plainly designed to seriously provoke plaintiff. Defendant falsely cast plaintiff as a "mean mommy" who would deprive the children of parenting time with him. He gave their daughters haircuts that, at best, were amateurish, and at worst, "ruined" their hair, knowing that plaintiff would be upset. In short, defendant used their daughters as pawns, willingly subjecting them to emotional upset, if not psychological abuse, and needlessly bad haircuts, with no apparent purpose other than to achieve the desired effect upon plaintiff. We need not discuss defendant's email regarding plaintiff's dead dog since even he has acknowledged his regret for sending the email. The evidence is therefore sufficient to prove that defendant "repeatedly committed acts with purpose to alarm or seriously annoy" plaintiff, constituting harassment under N.J.S.A. 2C:33-4(c).

1 Fictitious names are used for the children to protect their privacy.