T.R v. F.R

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2454-09T3

T.R.,

Plaintiff-Respondent,

v.

F.R.,

Defendant-Appellant.

___________________________________

January 27, 2011

Submitted December 8, 2010 - Decided

Before Judges Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1249-10.

F.R., appellant, pro se.

T.R., respondent, pro se.

PER CURIAM

Defendant F.R. appeals from the final and amended final restraining orders entered against him and in favor of his wife under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We affirm.

I

After twenty-nine years of marriage, plaintiff left the marital home on November 15, 2009. On November 16, 2009, plaintiff filed a domestic violence complaint that stated:

11/15/2009 PLA STATES SHE LEFT THE MARITAL HOME AND LEFT DEF A NOTE. PLA STATES THE DEF SHOWED UP AT HER EMPLOYER THIS MORNING WANTING TO TALK TO HER. PLA STATES THE DEF WAS ESCORTED OUT BY A POLICE OFFICER. DEF THEN CALLED THE PLA AT WORK WANTING TO TALK TO HER. DEF WAS ADVISED NOT TO CALL BACK. DEF WILL CHECK THE MILEAGE AND THE GAS GAUGE ON THE CAR. DEF WILL CALL PLA AT WORK TO MAKE SURE SHE IS THERE. DEF WILL CALL HER BEFORE SHE LEAVES WORK AND TIMES HER AND WILL THEN CALL HER AT HOME. DEF WILL SCREAM, YELL AND ACCUSE PLA OF CHEATING IF THE MILEAGE AND GAS ARE WRONG. DEF CONTROLS EVERYTHING THAT THE PLA DOES.

Below the narrative section, the form contained the following preprinted language: "Which constitute(s) the following criminal offense(s). (Check all applicable boxes)." The box marked with a check was "harassment." In the section of the complaint stating "Any prior history of domestic violence reported or unreported? If yes, explain," the complaint stated, "Verbal, physical, mental & emotional abuse: Def controls Pla whereabout. Def blames Pla for it."

On November 17, 2009, plaintiff filed an amended domestic violence complaint in which she added specific instances of verbal and mental abuse that had occurred during the previous month, and numerous instances of emotional, physical, and verbal abuse that had occurred during the course of the marriage.

A judge granted a temporary restraining order that was served on defendant. A trial was conducted on December 10, 2009. Plaintiff and defendant were the only witnesses.

Plaintiff testified she and defendant were married on May 23, 1980, and had four children who now range in age from nineteen to twenty-eight. On November 15, 2009, plaintiff left the marital residence after tolerating years of control and abuse from defendant. Before leaving she wrote a note to defendant which stated, in part:

I'm sorry I had to leave this way. No family or friends know where I am or know that I have left. You have told me many times to get out and how I have destroyed your life. I can see because you tell me daily all you want is the 401k -- and then to have me gone. I can't give you that money because it is all I have and have left to start a new life. I hope you can understand what I have been saying daily is I need peace, no yelling, no fighting, no accusing me of everything under the sun; just peace.

....

Please give me some time before we talk if for both of us to stop and think what is the best way to go forward. And I wish you only luck and happiness and please let me have some ....

The next day defendant appeared at the school where plaintiff worked as a librarian. When security guards stopped him at the front door, he insisted on seeing someone inside, and the guards finally had to escort him to his car and make him leave. After he left, he "kept calling" the school. Plaintiff's co-worker explained to defendant that he could not call the school and should not call anymore. As the result of defendant trying to enter the school and then repeatedly calling, plaintiff was told that because she worked with children from four to fourteen, "this could not take place here and this just had to be removed from the facilities at all times."

Plaintiff next testified to the abuse she endured during her marriage. Defendant wanted to know exactly where she was at all times. He wanted to know when she left the house. If she drove him to work, he wanted to know when she arrived at work. He called her when she arrived at work and when she returned home "to make sure it takes a certain amount of time to go from one to the other." He knew the mileage from their home to her place of work and checked her car mileage daily. He permitted her a weekly allowance of $10 for lunch. He told her what neighbors she could and could not talk to. He accused her of flirting with her son's friends if they came to the house. He listened to her phone calls then questioned her about them.

According to plaintiff, defendant was verbally and physically abusive. He constantly accused plaintiff of cheating and called her a whore and a pig. One day, shortly before plaintiff left, she went to a support group for help. When defendant discovered excessive mileage on her car, he demanded to know where she had been. She refused to tell him. During the ensuing days, their daughter gave birth to their granddaughter. Plaintiff thought the birth of their granddaughter would cause defendant to forget his concern about the excessive mileage, but one day he came home from work, began grabbing and shaking her, and said, "I know and I'm not going to let the mileage go." He insisted she tell him where she had been, and he hit her on the chin. He continued to "badger" her throughout the week about the mileage.

Plaintiff claimed that was not the first time defendant had been physically abusive. Throughout their marriage he punched, slapped, and kicked plaintiff, blackening her eyes and bruising her body. Additionally, he threatened that if she ever left he would destroy her and kill her. Plaintiff now lives in a shelter.

Defendant disputed plaintiff's testimony. According to him, the household bills were overwhelming and he paid most of them with credit cards. The bills included food, plaintiff's clothes, the car plaintiff drove, property taxes, and the mortgage. If plaintiff had only $10 per week for lunch, it was $10 more than he spent for himself on lunch. Defendant admitted that he and his wife argued, but claimed they were typical marital arguments, not violent arguments. He said things in anger that he did not mean. He described plaintiff's testimony as bologna. Finally, he testified that he wanted his wife to return home.

The trial judge found that plaintiff's testimony was credible. Concluding that this was a classic case of domestic violence, the trial judge found that defendant harassed plaintiff and that plaintiff was in need of an order of protection. The judge entered a final restraining order.

On appeal defendant argues that the trial judge's decision was against the weight of the evidence, that the evidence did not support a predicate offense, and that the evidence did not support an act of domestic violence. We disagree.

II

"[A]ppellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not disturb the trial court's findings unless they are demonstrated to lack support in the record or are inconsistent with the substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations based upon the opportunity of the judge to see and hear the witnesses. Cesare, supra, 154 N.J. at 411-12. See also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13. Although we owe no special deference to the trial courts' conclusions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J 366, 378 (1995), "we do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

In light of our standard of review, we accept the trial judge's finding that the events occurred as described by plaintiff.

A plaintiff seeking a final restraining order under the Act must prove "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." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Harassment, N.J.S.A. 2C:33-4, is one such predicate act. N.J.S.A. 2C:25-19a(13). Upon a finding of the commission of a predicate act of domestic violence, the court must consider whether it should enter a restraining order that provides protection for the victim. Silver, supra, 387 N.J. Super. at 126.

Harassment is defined in N.J.S.A. 2C:33-4, which provides in pertinent part:

Except as provided in subsection e., 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;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

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

"A finding of a purpose to harass may be inferred from the evidence." State v. Hoffman, 149 N.J. 564, 577 (1997) (citing State v. McDougald, 120 N.J. 523, 566-67 (1990); State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995)). "Common sense and experience may inform that determination." Ibid. (citing State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478 (1978)).

"[T]he provision in N.J.S.A. 2C:33-4(a) prohibiting conduct communicated in any manner likely to cause annoyance or alarm encompasses, for constitutional reasons, only those modes of communicative harassment that 'are also invasive of the recipient's privacy.'" Cesare, supra, 154 N.J. at 404 (quoting Hoffman, supra, 149 N.J. at 583). "[A]nnoyance" under subsection (a) means to "disturb, irritate or bother." Hoffman, supra, 149 N.J. at 580. "[S]erious annoyance under subsection (c) means to weary, worry, trouble, or offend." Id. at 581.

"A complaint charging harassment in the domestic violence context also requires an evaluation of the plaintiff's circumstances." Cesare, supra, 154 N.J. at 404 (citing Hoffman, supra, 149 N.J. at 584-85). "Although a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis." Id. at 402 (emphasis original). "Therefore, not only may one sufficiently egregious action constitute domestic violence under the Act, even with no history of abuse between the parties, but a court may also determine that an ambiguous incident qualifies as prohibited conduct, based on a finding of violence in the parties' past." Ibid. Our Supreme Court has explained:

The fears of a domestic violence victim and the turmoil she or he has experienced should not be trivialized. In different contexts, a recipient ... may not be alarmed or seriously annoyed, but some victims of domestic violence may rightly view a course of communicative conduct as seriously annoying, alarming, or threatening, or all of those things.

[Hoffman, supra, 149 N.J. at 586.]

Defendant argues that the trial judge made no finding about the incident at school and that the incident could not constitute harassment. Although the judge did not refer to the school incident explicitly, when he began to deliver his oral opinion, he stated that sub-section (b) of the harassment statute (establishing culpability when one subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so) was not applicable to the November 15 predicate offense, but instead was in "a prior history." The November 15 predicate offense described in the Domestic Violence complaint included the incident that occurred at the school where plaintiff was employed.

Defendant maintains that his conduct at the school, though perhaps embarrassing, annoying, or emotionally upsetting, did not amount to harassment. Defendant also argues that he did not have the "conscious object" of alarming or annoying the plaintiff. The history of defendant's abuse of plaintiff, his defiance of her note not to talk to her, and his repeated calls to plaintiff's school after being turned away by security guards, provided substantial, credible evidence that supported the trial judge's finding that defendant harassed plaintiff. The credible evidence supports a finding of the elements of harassment under N.J.S.A. 2C:33-4(c).

Finally, defendant contends that his conduct, as a matter of law, did not amount to domestic violence requiring a final restraining order. "Domestic violence is a term of art which describes a pattern of abusive and controlling behavior which injures its victims." Corrente v. Corrente, 281 N.J. Super. 243, 246 (App. Div. 1995). When evaluating complaints of domestic violence, trial courts must be mindful of the purpose of the Act to assure the victims of domestic violence the maximum protection from abuse the law can provide, N.J.S.A. 2C:25-18, yet not "trivialize[] the plight of true victims of domestic violence and misuse[] the legislative vehicle which was developed to protect them." Corrente, supra, 281 N.J. Super. at 250. "The [Act] was intended to address matters of consequence, not ordinary domestic contretemps ...." Ibid.

The conclusion that this was a matter of consequence, not ordinary domestic contretemps, is supported by substantial, credible evidence.

A