H.L.W v. BRUCE D. DAWSON

 

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4533-09T2

H.L.W.,

Plaintiff-Respondent,

v.

BRUCE D. DAWSON,

Defendant-Appellant.

________________________________________________________________

March 3, 2011

 

Argued January 11, 2011 - Decided

 

Before Judges Carchman and Graves.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-2041-10.

 

Robert P. Panzer argued the cause for appellant (Szaferman, Lakind, Blumstein & Blader, P.C., attorneys; Mr. Panzer, of counsel and on the brief).

 

Devan J. Theiler argued the cause for respondent (Theiler & Mourtos, L.L.C., attorneys; Mr. Theiler, of counsel and on the brief; Nickolas C. Mourtos, on the brief).

PER CURIAM

Defendant Bruce D. Dawson appeals from an April 28, 2010 Final Restraining Order (FRO) restraining defendant from, among

 

other things, having any contact with plaintiff H.L.W. or

her children. The FRO was entered pursuant to the Prevention of Domestic Violence (DV) Act, N.J.S.A. 2C:25-17 to -35 (the Act). We affirm.

These are the relevant facts adduced at trial. Plaintiff and defendant met when plaintiff purchased defendant's boat hauling business in July 2006. The parties commenced a dating relationship in January 2007, which plaintiff ended in December 2008. After January 2009, the parties continued to have contact, as defendant continued to refer boat hauling calls to plaintiff; however, their relationship soured, and at the time of the alleged DV complaint, the parties were actively litigating a breach of contract claim.

In June and July 2009, plaintiff filed DV complaints against defendant resulting in the issuance of Temporary Restraining Orders (TRO), which were subsequently vacated after trial. Another complaint was filed on September 14, 2009, alleging that defendant stalked and harassed plaintiff. After the issuance of a TRO, plaintiff agreed to dismiss the pending FRO by execution of a consent order entered on October 19, 2009. The order, executed by both parties, provided that: "Defendant is hereby restrained from contacting, communicating directly with or through a third party the Plaintiff and her family members and employees." The order also restricted defendant from entering or being within one thousand feet of two specific addresses and Causeway Boat Rentals.

Plaintiff filed another DV complaint against defendant on April 19, 2010. In this complaint, plaintiff alleged that on the evening of April 17, 2010, defendant approached her while she was out with a friend, Robert, and would not leave when asked to do so. Plaintiff also claimed that as she and her friend left, defendant took pictures of her friend, and later followed plaintiff while she was driving. Defendant filed a DV complaint against plaintiff four days later on April 23, 2010, also based on events that occurred on April 17, 2010. Specifically, defendant alleged that plaintiff was waiting outside of a bar to see him on April 17.

At the hearing on the cross-complaints, plaintiff indicated that she was having dinner at the Gateway Restaurant in Ship Bottom with her friend when defendant walked into the restaurant. She was standing at the bar talking to a client when defendant entered and looked at her. She and defendant made eye contact, and defendant proceeded to walk over to where Robert was seated at the bar. Defendant denied seeing plaintiff when he entered the bar.

According to Robert, he turned his back to defendant when defendant entered, but defendant sat one seat away from him at the bar. Robert turned to defendant and told him, "You can t be in here. Look, she s right there." In response, defendant looked at plaintiff, who had walked over to where Robert was sitting and shrugged his shoulders without making a verbal response. Defendant denied shrugging his shoulders but agreed that he did not respond.

After defendant refused to leave, plaintiff and Robert left for another restaurant in Surf City, approximately one mile away. Plaintiff had parked approximately twenty feet from the only entrance to the Gateway restaurant. When leaving the restaurant, plaintiff took pictures of the location of her parked car and defendant s parked truck to show that defendant had to walk past her car on his way into the restaurant. Additionally, defendant admitted to taking a picture of Robert outside the restaurant when Robert and plaintiff left.

Three hours later at about 10:00 p.m., as plaintiff was driving past the Gateway Restaurant to proceed home from Surf City, defendant pulled out of the restaurant parking lot and followed her for approximately a quarter-mile before turning off the road. There was no additional contact between defendant and plaintiff. Robert indicated that unbeknownst to plaintiff, he followed her when she left the Surf City restaurant, he saw defendant pull out of the Gateway restaurant and follow plaintiff as she drove by the restaurant.

Defendant admitted that he knew that plaintiff was driving a silver Honda with a certain license plate that evening. He stated that it was a coincidence that he was driving behind her when leaving Gateway, as he was on his way to his home located approximately one block from the restaurant. Both Robert and plaintiff discussed the possibility that defendant would be at the Gateway prior to going there, and they agreed to leave in the event that he appeared.

In addition to the contact on April 17, plaintiff and Robert both indicated that defendant called Robert seeking information about plaintiff, an allegation that defendant denied. Plaintiff also indicated that defendant tried to contact her through her business's Facebook page three times between March 13 and 14, 2010. Finally, plaintiff noted that she was afraid of defendant, and he would not leave her alone.

Other witnesses corroborated plaintiff's complaint that defendant makes unwanted contact with her. According to Robert's son, S.B., approximately two weeks prior to the hearing, defendant stated that he would not leave plaintiff alone. S.B. observed defendant drive past plaintiff s home, which is located on a dead-end street. Z.D., plaintiff s son, confirmed that he witnessed defendant approach his mother at a marina during summer 2009.

Defendant conceded "that there [was] a pattern of unwanted contact" prior to the April 17 incident; however, he claimed that plaintiff and her children drove by his house "several times," and that this was the basis of his April 2010 DV complaint against plaintiff in addition to the April 17 incident. Defendant agreed, however, that "in [plaintiff s] defense, if she s coming on Long Beach Island and coming off Long Beach Island, she has to drive by my house on some of those occasions[,]" and that he did not know whether she was just passing by or "stalking" him. As to the April 17 incident, defendant admitted that plaintiff was already in the bar when he arrived, despite stating in his complaint that he arrived at the Gateway bar prior to plaintiff.

Following trial, the trial judge dismissed defendant's complaint as meritless. As to plaintiff's complaint, the judge noted that both parties acknowledged "a substantial prior history of inappropriate actions that could constitute harassment . . . ." The judge assessed the credibility of H.L.W., Robert and Dawson regarding the evening of April 17, and concluded that defendant's actions on that date constituted harassment. He issued the FRO, and this appeal followed.

On appeal, defendant raises the following issues:

POINT I

 

THE TRIAL COURT'S FINDING THAT MR. DAWSON COMMITTED THE PREDICATE ACT OF HARASSMENT ON APRIL 17, 2010 WAS CONTRARY TO CONTROLLING LEGAL PRINCIPLES AND WAS NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE.

 

A. The Trial Court's Finding that Mr. Dawson acted with the Intention to Annoy and Alarm was contrary to Controlling Legal Principles and was not Supported by Adequate, Substantial, Credible Evidence.

 

B. The Trial Court's Finding that Mr. Dawson Committed An "Action" Prohibited by N.J.S.A. 2C:33-4 was contrary to controlling Legal Principles and was not Supported by Adequate, Substantial, Credible Evidence.

 

1. Mr. Dawson Did Not Violate Subsection (a) of N.J.S.A. 2C:33-4.

 

a) Mr. Dawson Did Not Make a Communication.

 

b) Mr. Dawson Did Not Make a Communication In a Manner Prohibited by Subsection (a).

 

2. Mr. Dawson Did Not Violate

Subsection (c) of N.J.S.A. 2C:33-4.

 

a) Mr. Dawson Did Not Engage In a Course of Alarming Conduct With Purpose to Alarm or Seriously Annoy.

 

b) Mr. Dawson Did Not Engage In Repeatedly Committed Acts With The Purpose To Alarm or Seriously Annoy.

 

POINT II

 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FINDING THAT THE SECOND PRONG OF THE SILVER V. SILVER ANALYSIS WAS SATISFIED.

 

POINT III

 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY RELYING UPON CERTAIN PURPORTED "PRIOR HISTORY" OF THE PARTIES.

 

A. The Trial Court Committed Reversible Error by Finding that Both Parties Conceded That There Was a Prior History That Rose To The Level of Harassment.

 

B. Plaintiff Improperly Relied upon Allegations That Were Dismissed After Trial.

 

We first set forth our standard of review as it is particularly relevant to our analysis of the issues before us.

While a trial court's legal conclusions are not entitled to any special deference, State v. Hupka, 203 N.J. 222, 231 (2010), our review of a trial court's findings of fact is limited. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009). Generally, "[a]n appellate court must defer to the trial court's factual findings so long as they are supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 185 (2010). Further, "[b]ecause of the family courts' special jurisdiction and expertise in family matters," including domestic violence complaints, "appellate courts should accord deference to family court factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quotations omitted). We will intervene only when the trial judge's factual findings and legal conclusions are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Klumpp v. Borough of Avalon, 202 N.J. 390, 412 (2010) (quotations omitted).

Additionally, a trial judge's opportunity to evaluate credibility is better than that of an appellate court. S.D. v. M.J.R., 415 N.J. Super. 417, 429 (App. Div. 2010) (quotations omitted). Particularly relevant, "[d]eference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Ibid.

In determining whether a plaintiff has established a sufficient basis for the issuance of a FRO, the trial judge must apply the two-pronged analysis that we described in Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "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:25-19(a) has occurred." Ibid.

N.J.S.A. 2C:25-19 defines "domestic violence" as the inflicting of any one or more of fourteen acts, listed in subsections (1) to (14), upon a person protected under the Act. N.J.S.A. 2C:25-19(a)(1) to (14). Harassment, as defined by N.J.S.A. 2C:33-4, is included as a predicate offense under the Act. N.J.S.A. 2C:25-19(a)(13). Harassment is defined as:

 

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.

 

[N.J.S.A. 2C:33-4].

 

A plaintiff must demonstrate (1) that defendant's purpose was to harass and (2) the occurrence of an action under subsection (a), (b), or (c) of N.J.S.A. 2C:33-4. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:33-4 (2010). Defendant maintains the trial judge erred in finding he committed the predicate act of harassment because plaintiff failed to establish that he had a purpose to harass and that he committed an act under subsection (a), (b), or (c).

Defendant avers that the trial judge committed reversible error by finding that he acted with the purpose of harassing plaintiff on April 17, 2010. To support a charge of harassment, plaintiff must establish by a preponderance of the evidence that defendant's purpose was to harass. L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999).

"'A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result.'" State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)). Plaintiff must prove that defendant's conscious object was to "annoy," "torment," "wear out," or "exhaust." State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (citing Webster's II New College Dictionary 504 (1995)), certif. denied, 188 N.J. 577 (2006).

"A finding of a purpose to harass may be inferred from the evidence presented[,]" and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577. Because direct proof of intent is often absent, "purpose may and often must be inferred from what is said and done and the surrounding circumstances[,]" and "[p]rior conduct and statements may be relevant to and support an inference of purpose." Castagna, supra, 387 N.J. Super. at 606 (citations omitted). See also State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995) ("While we might or might not have made the same inferences, our role is one of determining whether the trial judge's inferences were rationally based on evidence in the record.").

Here, the trial judge found that Robert's and plaintiff's testimony regarding the prior history between plaintiff and defendant and the events of April 17 was credible and persuasive. In concluding that "Dawson's actions were intended by him to be annoying, intended by him to create alarm, especially in light of the past relationship between the parties and the prior history[,]" the judge noted that absent the prior history "what happened on the 17th probably wouldn't rise to a level for the need of a [FRO]."

Regarding April 17, the judge observed that defendant remained in the bar after Robert told him plaintiff was there as well, and that defendant took pictures of Robert and gave him the thumbs up when Robert and plaintiff left the Gateway restaurant. He also found that defendant's following plaintiff in her car that night may have been a coincidence, but that it was unlikely given defendant's prior conduct. In addition to defendant's conduct on April 17, the judge noted that defendant accessed plaintiff's Facebook page three times in the span of twenty-four hours.

There was no dispute that defendant frequented the Gateway Restaurant; however, while it may not have been defendant's conscious object to annoy plaintiff when he entered the restaurant on April 17, reasonable inferences suggest that defendant's subsequent actions, including sitting near Robert, ignoring his warning that plaintiff was in the restaurant and remaining there despite plaintiff's presence, were intended to annoy and alarm plaintiff. Hoffman, supra, 149 N.J. at 577; Castagna, supra, 387 N.J. Super. at 606. Further, in determining whether defendant acted with the purpose of harassing plaintiff on April 17, the judge correctly considered the prior history of inappropriate conduct between defendant and plaintiff. We conclude that the trial judge did not err in finding that defendant acted with the purpose to harass plaintiff on April 17, 2010, and that the trial judge's findings were supported by adequate, substantial credible evidence. Cesare, 154 N.J. 394, 411-12 (1998).1

Defendant also challenges the judge's finding as to harassment under N.J.S.A. 2C:33-4(c). That subsection provides that an act of harassment is committed if, with purpose to harass another, a person "[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." Defendant argues that although the trial judge found that his actions were intended to annoy and alarm, he did not find that those actions would have alarmed a reasonable person in plaintiff's circumstances, and could not make such a finding based on the record. Defendant also argues that he did not engage in repeatedly committing acts with the purpose to alarm or seriously annoy.

"In contrast to subsection (a), which targets a single communication, subsection (c) targets a course of conduct . . . [t]he purpose of subsection (c) is to reach conduct not covered by subsections (a) and (b)." Hoffman, supra, 149 N.J. at 580. A minimum amount of time or duration is not necessary for defendant's actions to constitute "conduct" under N.J.S.A. 2C:33-4(c). State v. J.T., 294 N.J. Super. 540, 545 (App. Div. 1996). Instead, conduct "can be the 'chosen manner of conducting oneself' at a particular time or period." Ibid. (quoting Webster's Ninth New Collegiate Dictionary (9th ed. 1985)).

In State v. J.T., the defendant was convicted of harassment under N.J.S.A. 2C:33-4(c) for standing outside his wife's home and staring at her, despite a restraining order prohibiting him from contacting her. Id. at 542. Although the defendant did not speak to his wife, the trial judge nonetheless concluded his conduct constituted harassment because "'he was there for the purpose of being seen'" and that his presence was a "'passive form of a threat.'" Id. at 543. In affirming his conviction, we held that "[p]lacing oneself in a location and remaining there for some time may constitute a 'course of conduct.'" Id. at 545. We explained that

it cannot be doubted that defendant positioned himself in a location where his wife could see him as she exited the house . . . he did so despite the injunction from "having contact" with his wife and from "harassing [her] in any manner." That he was there with the purpose to harass her can be inferred . . . from the totality of circumstances. There is a difference between engaging in a "course of alarming conduct" and "repeatedly committ[ing] acts with purpose to alarm or seriously annoy" another, and the fact repeated acts were not involved does not mean defendant did not engage in a "course of alarming conduct."

 

[Id. at 544-45 (alterations in original).]

The facts here parallel J.T. Defendant remained in the Gateway Restaurant, despite knowing that plaintiff was present and Robert's warning, in violation of the civil restraint restricting him from contacting plaintiff. He shrugged his shoulders when told she was there and did not leave. The fact that this was a single act does not mean the conduct was not alarming. When placed in the context of the parties' prior relationship, these seemingly minor acts rise to the level of alarming conduct. In sum, defendant's chosen manner of conducting himself remaining in the bar and shrugging in response to the suggestion that he leave constituted conduct within the meaning of N.J.S.A. 2C:33-4(c). J.T., supra, 294 N.J. Super. at 545.

Additionally, we have previously noted that "acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Plaintiff's complaint did set forth a prior history of domestic incidents between her and defendant, and there was ample testimony as to the prior history between the parties. See id. at 250 (stating plaintiff's complaint in that case "asserted that there was no history of domestic violence, and there was no finding by the judge of a history of abuse or an immediate threat to safety").

The second step in evaluating the issuance of an FRO requires us to determine "whether the court should [have] enter[ed] a restraining order that provides protection for the victim." Silver, supra, 387 N.J. Super. at 126. Defendant maintains that the trial judge erred regarding the second prong set forth in Silver because he failed to find that an FRO was necessary to protect plaintiff from immediate danger or further acts of DV.

Even though second prong of the Silver analysis is "most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. Those factors include, but are not limited to, the following:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;
 
(2) The existence of immediate danger to person or property;
 
(3) The financial circumstances of the plaintiff and defendant;
 
(4) The best interests of the victim and any child;
 
(5) In determining custody and parenting time the protection of the victim's safety; and
 
(6) The existence of a verifiable order of protection from another jurisdiction.

 

[N.J.S.A. 2C:25-29(a).]

 

Because some of the aforementioned factors are "relevant only to the fashioning of a domestic violence remedy, N.J.S.A. 2C:25-29(a) does not mandate that a trial court incorporate all of those factors into its findings when determining whether or not an act of domestic violence has been committed." Cesare, supra, 154 N.J. at 401-02.

Here, the trial judge considered the events of April 17, in light of the following: the restraining order that was in effect on April 17; the parties' "troubled relationship" and their agreement that "there is a substantial prior history of inappropriate actions that could constitute harassment"; the pending civil litigation between the parties; defendant's calls to Robert regarding plaintiff; and defendant's attempts to access plaintiff's Facebook page.

After reciting these facts, the judge stated that defendant's acts on April 17 constituted harassment "especially in light of the past relationship between the parties and the prior history." He concluded that an FRO was necessary to protect plaintiff from "any further contact by the defendant." The trial judge considered the "previous history of domestic violence . . . between the plaintiff and defendant," N.J.S.A. 2C:25-29(a)(1), and specifically found that an FRO was warranted in light of this findings on the previous history of DV. Silver, supra, 387 N.J. Super. at 128.

Lastly, the record supports the trial court's finding an FRO was warranted in light of the parties' prior history and relationship. This is not a case in which a single "isolated aberrant nonviolent" act occurred without any prior incidents of DV. Cf. Kamen v. Egan, 322 N.J. Super. 222, 228 (App. Div. 1999) (concluding the trial court erred in finding that a "single act of trespass, unaccompanied by violence or a threat of violence was sufficient to justify the issuance of a restraining order under the Act"). We are satisfied that the judge satisfied the mandate of Silver by considering and making findings as to the previous history of DV between plaintiff and defendant.

Finally, defendant maintains that he "did not stipulate that his prior acts constituted harassment or domestic violence," and that "it was extremely prejudicial for the court to infer that [defendant] stipulated that he engaged in acts constituting domestic violence or harassment." Defendant also claims that the judge improperly relied upon prior DV allegations that were previously adjudicated and dismissed.

At the hearing on April 28, 2010, defendant conceded "that there [was] a pattern of unwanted conduct" prior to the April 17 incident. In his decision, the trial judge stated that "both parties acknowledge and both parties conceded that there is a substantial prior history of inappropriate actions that could constitute harassment." (Emphasis added). He also stated that "they both stipulate to the fact that there was probably on both sides inappropriate contact by the parties."

Defendant's agreement that there was "a pattern of unwanted conduct" was not mischaracterized in the judge's statement that "both parties conceded that there is a substantial prior history of inappropriate actions that could constitute harassment." Further, the judge did not state or rely, as defendant argues, on a stipulation by defendant that he engaged in acts constituting domestic violence or harassment. Defendant's claim that he was prejudiced by the judge's inference that he stipulated that he engaged in acts constituting harassment is without merit.

As to defendant's claim that the court improperly relied upon prior DV allegations that were previously adjudicated and dismissed, the judge focused on events between plaintiff and defendant, and did not permit testimony on previously adjudicated allegations. We find no error in this regard.

A

ffirmed.

1 Our finding on this issue makes it unnecessary to consider whether defendant's "shrug" in response to Robert's identifying plaintiff as being present in the restaurant was an act of harassment under N.J.S.A. 2C:33-4(a); however, we discuss its relevance to N.J.S.A. 2C:33-4(c), infra.