A.S. v. R.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A.S.,

Plaintiff-Respondent,

v.

R.D.,

Defendant-Appellant.

______________________________

October 1, 2013

Argued September 17, 2013 Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-412-13.

Alison C. Leslie argued the cause for appellant (Leslie Law Firm, LLC, attorneys; Ms. Leslie, of counsel and on the briefs).

A.S., respondent, argued the cause pro se.

PER CURIAM

Defendant appeals from an August 28, 2012 final restraining order (FRO) under the Protection Against Domestic Violence Act, N.J.S.A. 2C:25-17 to -34. Defendant's former boyfriend obtained the order after the court found defendant committed an act of harassment against him. See N.J.S.A. 2C:33-4 (defining harassment); N.J.S.A. 2C:25-19 (defining harassment as an act of domestic violence). We reverse.

I.

The trial was conducted informally. The court questioned plaintiff generally, and then asked defendant to respond. The court invited plaintiff to question defendant, but did not ask defendant if she wished to cross-examine plaintiff. The parties were not invited to make opening or closing statements.

Plaintiff briefly testified that a week before the hearing, he received two text messages from defendant, including one that was "troubling" to him. So, he went to the police. Plaintiff did not testify about the substance of the messages. He testified that he had a dating relationship with defendant that ended about a year earlier. He also alleged his email account was hacked, and someone knew his password, but did not assert defendant was responsible.

Defendant provided a more detailed picture of the parties' relationship. She testified they engaged in a dating relationship for a year-and-a-half. For defendant, the dating relationship was extra-marital. As a result of the affair, defendant's husband of twenty-two years separated from her in July 2011. Defendant planned to build a life with plaintiff.

However, in September 2011, plaintiff suddenly ceased all contact with defendant shortly before a planned vacation to Florida. Defendant admitted sending 200 to 400 text messages. She said they inquired, "[W]hat's happening? Where are you? Why aren't you calling me? I went to your house? Are you okay?" Plaintiff's sister eventually informed defendant that he had gone to Florida with another woman, and she should not look for defendant. Defendant sent additional messages to plaintiff, seeking an opportunity to talk to him. He did not respond. After November 6, 2011, defendant ceased further efforts to contact plaintiff until the two texts plaintiff mentioned. In the meantime, defendant learned plaintiff married another woman in June 2012.

Defendant explained she was a professional recording artist. She alleged that in July 2012, she received reports that plaintiff was trying to interfere in her career.

I was told that there was a nasty message posted on Facebook about me on a friend's band page. By the time I got to the page, the post is gone; however, I printed the page, because you can see clearly that the page responded to . . . [A.S.'s] new wife. Now, I don't know what her post was, because it's deleted. I just know I got a call that said she's now bad-mouthing me, okay?

She also alleged she received a report that plaintiff had called a radio station to complain that it would not play defendant's music. She implied the call was intended to portray her in a negative light with the radio station, because such calls are unwelcome. She also testified she heard that he and his wife were attending her performances.

In response to these reported incidents, defendant admitted she sent two text messages to plaintiff. She read the text of the messages into evidence:

A. Okay. So, the first text I sent to him was after I heard she was posting nasty things on my page. I wrote:

"What is wrong with you? You didn't do enough damage to my life? I'm finally coming to grips with being a part-time single mother and now you and your new wife are going to reopen my wounds and rub salt by being friends with [M.A.] and are going to the gigs. Are you for real? The people I introduced you to and that you talked about and you didn't like.

["]Do you tell Anna how I used to sing those songs to you? I'm sorry. "Do you tell Anna how I used to sing those songs to you, or do you just sit there and think about me and what we had? Or maybe the four of you sit around and bash me. You all have something in common. You all hurt me. Jesus, [A.S.], it's sick. Why would you do this? Just keep turning the knife.

["]There was a time I thought you were a genuine man, what a let down. You are moral-less and have obviously found some sick satisfaction out of hurting me tremendously.

["]Please stop. Do the right thing for once and just stop. Find your own life. There are millions of bands in New Jersey . . . . Stay out of my world of music. You hurt me enough and it's not right. And for God sakes, at least have the courtesy to show your new wife the respect of not sharing what we shared. That's sick."

That I sent. Didn't get a response. I didn't expect to get a response.

Q. Is there another one?

A. Yes, there is. This is short.

"And let me add one more thought for you to process: I am now moved beyond sad and miserable to extremely angry and bitter. Please don't force me to make my presence known in your lives. Nothing would give me greater satisfaction than to see you both miserable. This is your choice."

She denied any intention to threaten plaintiff. She stated, "I might have used the wrong words, but my sentiment is stay out of my life and my livelihood."

In response, plaintiff asserted he had "no intention of meddling in her music business." He claimed to have an innocent interest in following musicians who used to be in defendant's band, and currently played in some places where defendant has also performed.

The court found that defendant had harassed plaintiff. The court began by offering general observations about dating break-ups, the anguish often suffered by one person in the relationship, and his or her usually unsuccessful efforts to understand the reason for the break-up. The court then concluded that defendant committed harassment based on the hundreds of text messages she sent the previous fall and the two recent text messages. "[T]he plaintiff has proven, mostly by the very frank admission of the defendant, that the defendant committed a case of harassment." The court referred to "[n]umerous, numerous, numerous unanswered" text messages; then, apparently directly addressing defendant, stated, "I think you'd get the point . . . ."

Defendant responded that those text messages were sent ten months earlier. The judge continued:

And then on top of it, two e-mails, one of which contains a veiled threat which is probably why we're in Court. Not because of all the many before that. So, I do find that the plaintiff has proven by a preponderance of the evidence that the defendant committed the offense of harassment, and I'm going to make this a final order.

Among other forms of relief, the court barred defendant from plaintiff's residences, and place of employment; and barred her from harassing or stalking plaintiff. But, the order did not bar defendant from having contact or communications with plaintiff. It also expressly provided that its order "shall not preclude defendant from being in any place where [defendant] is employed."

This appeal followed. Defendant argues that her actions did not constitute harassment; the court failed to make essential findings that a restraining order was necessary to protect plaintiff, as required by Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006); and the court failed to afford defendant an opportunity to cross-examine plaintiff. We agree.

II.

We will not disturb a trial court's fact-findings if supported by "adequate, substantial, credible evidence[,]" and we accord deference to the family court based on its special jurisdiction and expertise. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We will reverse a trial court's findings that "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). We also exercise broader review when we consider "the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." Ibid. (internal quotation marks and citation omitted). We are compelled to reverse "if the court ignores applicable standards[.]" Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). We also owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts . . . ." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We comment first on the informality with which the court conducted the trial. The record does not reflect that the court advised the parties they were entitled to retain counsel, nor explained to defendant the serious consequences of entry of an FRO. Once the hearing began, the court failed to afford defendant an opportunity to cross-examine plaintiff. The record does not reflect that defendant was aware of her right to do so. While we have acknowledged the need of the court to focus and sometimes assume questioning in a trial involving pro se parties, the court must do so in a fair, orderly, and predictable way. Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006). The court must preserve "essential procedural safeguards including the right to cross-examine adverse witnesses . . . ." Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005); see also Franklin, supra, 385 N.J. Super. at 543 (citing Peterson, supra, 374 N.J. Super. at 124).

However, even absent defendant's opportunity to cross-examine plaintiff, he failed to present sufficient evidence to support entry of an FRO. Plaintiff sought an FRO based on his allegation that defendant committed the predicate offense of harassment. See N.J.S.A. 2C:25-19(a)(13) (identifying harassment as a predicate offense); N.J.S.A. 2C:33-4 (defining harassment).

The statute defines three forms of harassment, but an essential element of each is proof of a purpose to harass. See State v. Hoffman, 149 N.J. 564, 576-77 (1997).

[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.]

In applying the statute, "harass" must be given its ordinary meaning, namely, to annoy, torment, wear out, or exhaust the intended victim. State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.), certif. denied, 188 N.J. 577 (2006).

Plaintiff did not specify which form of harassment defendant allegedly committed, nor did the trial court make a specific finding, although it is apparent subsection (b) was not considered. Moreover, subsection (a) is generally focused on the mode of speech employed, and not a statement's content. Hoffman, supra, 149 N.J. at 583-84. However, plaintiff relied on the "troubling" content of the second text message. Defendant stated, "Please don't force me to make my presence known in your lives. Nothing would give me greater satisfaction than to see you both miserable." Thus, we consider plaintiff's claim under subsection (c).

On this record, we conclude that there was insufficient evidence that plaintiff was harassed; and that defendant acted with a purpose to harass that included a purpose "to alarm or seriously annoy." N.J.S.A. 2C:33-4(c). The Supreme Court has emphasized the care that a trial court must exercise to distinguish between the ordinary disputes and disagreements between persons in a past or current domestic relationship, and those acts that cross the line into domestic violence. J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011). In J.D., the Court reversed entry of a restraining order where the trial court had failed to find a purpose to harass. The defendant in J.D. passed by plaintiff's home in the early morning hours to document her cohabitation with another man, which the defendant intended to use to secure custody of the parties' children. Id. at 467-69. Similarly, in L.M.F. v. J.A.F., 421 N.J. Super. 523, 525, 530-31 (App. Div. 2011), we reversed a finding of harassment where the trial court failed to find that a defendant-father had the purpose to harass, although he repeatedly sent text messages to his former wife to obtain information about their daughter's academic performance.

A plaintiff's assertion that he or she felt harassed is not sufficient to prove purpose to harass. J.D., supra, 207 N.J. at 484. As the Court held, a "victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose." Id. at 487.

Here, the trial court failed to make a finding that defendant acted with a purpose to harass. Her two text messages on their face were written to keep plaintiff away. Defendant's statement about making her presence known did not threaten violence, but apparently signaled an intent to take appropriate action against plaintiff to combat what she perceived to be tortious interference with her career. The statement that she would take pleasure in plaintiff's misery was gratuitous, but within the scope of "'domestic contretemps.'" See J.D., supra, 207 N.J. at 475 (stating that a court must "draw[] the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of 'ordinary domestic contretemps.'") (quoting Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995)); see also Peranio v. Peranio, 280 N.J. Super. 47, 56 (App. Div. 1995) (finding that regardless of defendant's purpose, the statement "'I'll bury you'" standing alone "would not have satisfied the definition of harassment . . . unless it was manifested by a course or repeated acts of alarming conduct").

Moreover, plaintiff testified only that the text message from defendant was "troubling" and he went to the police station to seek relief. He did not testify that he perceived the message as a threat to his safety, nor did he present evidence to support such a perception. The evidence of prior text messages the substance of which included no threats does not qualify as a history of domestic violence, particularly since they contained no threats and plaintiff never asked that they cease, according to the record.1 See Sweeney v. Honachefsky, 313 N.J. Super. 443, 448 (App. Div. 1998) ("Surely the law must have some tolerance for a disappointed suitor trying to repair a romantic relationship when his [or her] conduct is not violent or abusive or threatening but merely importuning.").

Finally, even had defendant committed a predicate act of harassment, the court failed to make the requisite finding that plaintiff needed the protection of a restraining order. We stated in Silver, supra, that issuance of a final restraining order does not inexorably follow from a finding of a predicate act. The court must engage in a separate inquiry regarding the need for restraints. 387 N.J. Super. at 126-27.

This second inquiry, therefore, begins after the plaintiff has established by a preponderance of the evidence, the commission of one of the enumerated predicate acts "upon a person protected under this act by an adult or an emancipated minor[.]" N.J.S.A. 2C:25-19a. Although this second determination whether a domestic violence restraining order should be issued is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the facts set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse. See N.J.S.A. 2C:25-29b (stating that "[i]n proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse") (Emphasis added).

 
[Id. at 127.]

As the J.D.Court observed, "[m]erely concluding that plaintiff has described acts that qualify as harassment and omitting this added inquiry opens the door to potential abuse of the important purposes that the Act is designed to serve and threatens to 'trivialize the plight of true victims' in the process." 207 N.J.at 476 (quoting Corrente, supra, 281 N.J. Super.at 250).

The court here did not perform this second inquiry. Nor does the record support a finding that a restraining order was needed to protect the victim. Indeed, the court provided in its FRO that plaintiff was free to attend musical venues where defendant might be working. That speaks volumes that plaintiff faced no threat to his safety.

Reversed.

1 Plaintiff has included in his appendix text messages that defendant allegedly sent to his sister beginning in September 2011. As these were not introduced into evidence before the trial court, we do not consider them. See R. 2:5-4.