E.C. v. C.B.T., SR

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1185-12T2

E.C.,

Plaintiff-Respondent,

v.

C.B.T., SR.,

Defendant-Appellant.

_____________________________

Argued April 24, 2013 Decided May 6, 2013

Before Judges Axelrad and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-382-13.

Mark J. Molz argued the cause for appellant (Law Offices of Mark J. Molz, attorneys; Mr. Molz, on the brief).

Katherine D. Hartman argued the cause for respondent (Attorneys Hartman, Chartered, attorneys; Ms. Hartman, on the brief).

PER CURIAM

Defendant appeals from a final restraining order (FRO) entered against him in favor of plaintiff under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Because the record does not demonstrate that defendant engaged in the "course of conduct" required to establish the predicate offense of stalking, and because the judge did not find the restraints were necessary to protect plaintiff from immediate danger or further acts of domestic violence, we reverse.

The trial consisted only of the testimony of the parties, who were represented by counsel. Plaintiff testified that defendant was her "ex-boyfriend." They had lived together between May and August 2011, but now lived separately. Since their separation, plaintiff testified all the parties did was argue. She alleged defendant caused a scene with one of her customers at work; threatened to tell her parents that her father had cheated on her step-mother; and told her he planned to post "sexual photographs" she had taken of herself and given to him on "Craigslist and some other dirty sites - - just to put them out there on dirty, sexual sites."

However, on cross-examination, plaintiff admitted the parties continued to have an intimate relationship at least through June 2012. She also admitted that shortly before the August 18, 2012 incident that formed the basis for her request for a FRO, she again sent defendant a "slide show" of compromising photographs of herself.

On August 18, plaintiff planned to go to her high school reunion. She discussed the reunion with defendant and he asked to go to the event with her. However, plaintiff told him not to go. Plaintiff went to the reunion and, after it was over, went to a nearby bar with some of her old classmates.

"At some point," plaintiff testified she "looked across into the next room and I saw [defendant] walking in towards me and my friends." Defendant "was very angry[.]" Although she testified she "already knew where this was going[,]" plaintiff introduced defendant to her friends. She testified defendant "immediately started screaming - - screaming, calling me names" and accused her of cheating on him. Plaintiff asked defendant to go outside with her and talk.

Once they were outside, the two argued. Plaintiff testified she had been drinking, both at the reunion and at the bar before defendant arrived. Although she admitted she "was under an influence," she stated she was "totally coherent." Defendant told plaintiff he wanted to follow her home and she "said he can do whatever he wanted, just don't let me see you, I'm not stopping my night."

Plaintiff went back into the bar and the group decided to "cut the night short." Plaintiff agreed to drive one of her male classmates to his parents' home. As she did, she testified she saw defendant's car "in my rearview mirror and I didn't mind, I mean, I just - - I'm used to it. He followed me home."

After they reached the classmate's home, defendant pulled up and plaintiff told him "[y]ou cannot create havoc in the neighborhood." She alleged he then began screaming at the classmate and threatened "he could kick his - - his butt, you know, hurt him real bad." The classmate called the police and defendant left the scene. However, he returned after the police arrived and spoke to the officers. He asked the police to follow plaintiff as she drove to her own parents' home. Although the record is not clear, it appears the police administered a sobriety test to plaintiff. Plaintiff testified she "was coherent enough that I did whatever the policeman asked me. I passed. And I was able to explain myself, drive home." Plaintiff drove to her parents' home, where she spent the night and most of the next day, August 19, 2012.

Early in the morning on August 19, defendant sent plaintiff some "insulting" text messages and he threatened to tell her stepmother that plaintiff's father had had an affair. She responded to some of the text messages. Later in the afternoon, defendant came to the parents' home and plaintiff asked him to leave. He did so. That evening, plaintiff returned to her own home.

In the morning on August 20, defendant went to plaintiff's house and apologized "for his bad behavior." Plaintiff listened and explained "that this could not go on." She stated, "I wasn't mad - - not exactly not mad, I just - - it just needed to stop. I didn't have an argument with him. I was nice. I listened to him outside. We talked, it was fine, but it just had to stop."

Plaintiff testified defendant called her that evening and "was argumentative again." At 10:48 p.m., plaintiff sent an e-mail or text to defendant.1 Later that night, plaintiff testified she was "having a hard time sleeping" and, at 2:13 a.m. on August 21, she sent an e-mail to defendant stating she had not cheated on him.

Thereafter, plaintiff testified she stopped communicating with defendant. On August 22, her classmate told her about a message defendant had posted on the classmate's Facebook page. On August 31, plaintiff filed her complaint seeking a FRO.

Defendant testified that he stopped living with plaintiff in August 2011. However, the couple continued to date. Defendant stated it was "an on and off relationship that wasn't healthy[.]" Sometimes, the parties would be angry and "block" each other on their telephones. On other occasions, plaintiff would send defendant photographs of herself and invite him over to her house. Defendant testified that, in the month preceding August 18, 2012, plaintiff sent him a total of sixteen photographs.

In the afternoon of August 18, defendant testified he and plaintiff exchanged over forty text messages. At some points, they were joking with each other about the reunion that night and at others, they argued. Defendant stated the plan was for plaintiff to attend the reunion and the parties would later "hook up" after it was over.

Defendant went to the bar, which was two blocks from his home, and saw plaintiff there with her friends. He testified she was "clearly intoxicated" and he asked her to step outside with him. She did so. He was concerned with how she was going to get home and he offered to drive her. Plaintiff stated she was going to drive her classmate to his parents' home and plaintiff stated he "was welcome to follow her" to make sure she was "okay."

When they got to the classmate's house, defendant testified the classmate became angry and wanted to fight him. Defendant drove away. When he saw the police, he returned and asked them to follow plaintiff home to ensure her safety.

Thereafter, defendant testified the parties exchanged telephone calls, texts and e-mails. He stated he could not recall whether he sent plaintiff any insulting or threatening messages.

At the conclusion of the trial, the judge issued a FRO against defendant and in plaintiff's favor. The judge noted that the case "really comes down to a credibility call" and stated, without explanation, that she "believed" plaintiff's account as to what occurred.

The judge focused almost entirely on the events surrounding the reunion on August 18. She found defendant approached plaintiff in the bar and that plaintiff "could tell he was angry. She testified to that." The judge stated she believed plaintiff "wanted to go outside and explain. I don't know why she had to, actually. There was no relationship at all at this point except those text messages going back and forth." The judge also found defendant followed plaintiff to her classmate's home, but made no finding as to whether this was with plaintiff's knowledge and consent. The judge stated she believed defendant screamed at plaintiff's classmate and then asked the police to follow plaintiff home.

The judge then stated:

[T]his allegation about the stepmother and wanting to give details to her father - - to her stepmother of her father's affair, I believe that happened as well. That was - - I would constitute that as a threat of some sort.

And then Monday he came to her home in Evesham. Yes, he did. And then there was no opposition to the fact that she testified that [he] also intervened with a customer that she had - - accusing her of having an relationship. He didn't respond to that at all.

The judge continued:

The dilemma I have is why these pictures after all this was happening? Why these pictures?

She tells him to stop and then submits naked pictures to him. that's the dilemma I have. What is she - - what is she trying to express by doing that? Is that leave me alone? Is that I - - the relationship will continue? I don't know. I can't understand that motive - - motivation.

Nevertheless, the judge ruled that plaintiff had "proven, by way of a preponderance of evidence, at least stalking. I assume that maybe harassment could be incorporated under that particular statute, but stalking[.]" In explaining this ruling, the judge began by quoting portions of the anti-stalking statute, N.J.S.A. 2C:12-10. The judge stated:

It says, stalking:

". . . a person is guilty of stalking if purposely or knowingly engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of a third person . . ."

That's what it says. And I think on this particular evening, he followed her. I think that she was fearful. And again, I don't give a lot of credence to e-mails and Facebook and all that nonsense because that's not a face to face exchange. Nobody is in danger. Nobody suffers from that.

But on this occasion, August 18th, it's my view that she's proven her point and I believe that there was an intent manifested by defendant to cause her - - can I use that word agita - - or cause her fear; followed her into [the bar], followed her when she was delivering her friend to his parents' home, followed her to her home. And then subsequently came back to her house, when on at least four or five occasions, she told him to stop, even though her text messages sort of suggest something else.

This appeal followed.

On appeal, defendant argues the evidence did not support the judge's ruling that he had committed the predicate act of stalking and that the judge failed to find that the FRO was necessary to protect plaintiff from domestic violence. We agree.

In a non-jury case, we generally defer to the trial judge's findings of fact, which "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (l998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974). We will not disturb these findings on appeal unless the trial judge's findings are "so wholly insupportable as to result in a denial of justice." Rova Farms, supra, 65 N.J. at 483-84 (internal quotation marks and citation omitted).

In Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006), we held that a judge considering a complaint for a domestic violence restraining order has a "two-fold" task: "[f]irst, 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 a domestic violence restraining order is necessary to protect [a] plaintiff from immediate danger or further acts of domestic violence." 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 domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse," and on "whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. l995). See also Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. l995); N.J.S.A. 2C:25-29(a)(1)(2).

With regard to the first prong of the Silver test, the trial judge concluded that defendant had committed the predicate offense of stalking. The anti-stalking statute provides that a person is guilty of stalking "if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress." N.J.S.A. 2C:12-10b. Based on the clear language of the statute, we find there was insufficient evidence in the record to support the judge's finding.

To constitute stalking, a defendant must engage in a "course of conduct." Ibid. The term "course of conduct" means:

[R]epeatedly maintaining a visual or physical proximity to a person; directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person's property; repeatedly committing harassment against a person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person.

[N.J.S.A. 2C:12-10a(1).]

"Repeatedly" is defined as "two or more occasions." N.J.S.A. 2C:12-10a(2).

We are convinced the record does not substantively support the grant of the FRO against defendant for stalking. The judge did not explain why she found plaintiff more credible than defendant on this issue, did not address the many inconsistencies in plaintiff's accounts, and appeared to ignore defendant's factual allegations. Even if we were to accept the judge's credibility findings, however, there is no basis in this record for concluding that defendant had engaged in the "course of conduct" necessary to constitute stalking.

Here, defendant saw plaintiff in the bar after the reunion, became angry that she was there with her classmate and, at her request, accompanied her outside. The parties argued and defendant stated he wanted to follow plaintiff home. Plaintiff told him "he can do whatever he wanted, just don't let me see you, I'm not stopping my night." Following the argument between the classmate and defendant, defendant went home. There is simply nothing in the record to support the judge's finding that defendant then followed plaintiff to her own parents' house that evening. Instead, he asked the police to follow her to make sure she arrived safely because she had been drinking. The events on August 18 plainly do not constitute a "course of conduct" under N.J.S.A. 2C:12-10a(1).

While the parties thereafter exchanged texts and e-mails, the judge discounted them entirely, stating she did not "give a lot of credence to e-mails and Facebook and all that nonsense because that's not a face to face exchange. Nobody is in danger. Nobody suffers as a result of that." Indeed, while the judge found that defendant had acted on August 18 with the intent to cause plaintiff "agita - - or cause her fear," she went on to suggest that the test messages plaintiff had thereafter sent defendant "suggest something else."

Defendant's behavior was, in many respects immature and jealous. Under these circumstances, however, we are constrained to conclude there was insufficient evidence in the record to support the judge's finding that plaintiff established the predicate act of stalking on August 18 by a preponderance of the evidence. Silver, supra, 387 N.J. Super. at 125.

As to the second Silver prong, the judge failed to make any finding that the entry of a FRO was necessary to protect plaintiff. Id. at 126-27. The judge never explained why, if plaintiff were fearful of defendant, she went outside the bar with him alone on August 18; did not object to him following her to the classmate's parents' home; met with him, again alone, at her home on August 21; or continued to exchange texts and e-mails with him following the alleged stalking incident on August 18. Instead, the judge's determination was conclusory and not anchored in specific findings of fact which would have supported the finding that a FRO was necessary. Ibid. ("[T]he Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence restraining order.").

1 Several e-mails or texts were marked for identification at trial, but none of them were moved into evidence.