V.A.C. v. S.J.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0154-13T1

V.A.C.,

Plaintiff-Respondent,

v.

S.J.C.,

Defendant-Appellant.

______________________________

November 19, 2014

Submitted November 12, 2014 - Decided

Before Judges Reisner and Koblitz.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-00130-14.

Michael J. Beatrice, attorney for appellant.

Muscarella, Bochet, Edwards & D'Alessandro, P.C., attorneys for respondent (William C. Bochet, on the brief).

PER CURIAM

Defendant S.J.C. appeals from the July 18, 2013 Final Restraining Order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. He argues that the evidence was insufficient to support the judge's finding of harassment, as defined by N.J.S.A. 2C:33-4. We affirm substantially for the reasons expressed by Judge Frances A. McGrogan in her comprehensive opinion.

Defendant, who was represented by counsel, did not testify. Plaintiff's testimony at trial revealed the following facts. Plaintiff began dating defendant in December 2011 when she was a senior in high school and was working for defendant, who owns a gourmet meat and seafood delivery service. Defendant is thirty-one years older than plaintiff, and was a friend of plaintiff's father. The parties had a sexual and romantic relationship and sent text messages to each other frequently. At the beginning of April 2013, plaintiff ended the relationship, telling defendant to refrain from contacting her in any way. She testified that she ended the relationship because defendant was "essentially controlling [her] life."

After plaintiff told defendant she did not want him to contact her again, he sent over 100 text messages to her, some of an explicitly sexual nature. He sent long messages, some expressing jealousy about a male friend of hers, and frequently asking to meet her at various locations. He also told plaintiff in these messages that he saw her. He sent many photographs. He accessed plaintiff's Facebook page and sent her a picture of her Facebook page. Plaintiff did not respond to any of defendant's messages. The unwelcome contact from defendant caused her to do poorly in school and to be constantly on edge and unable to sleep.

Plaintiff blocked his messaging on May 31, 2013. On June 27, plaintiff saw defendant while she was jogging. Defendant slowed down and stared at her. On July 2, defendant came to her house where she was talking with her mother in the living room. He waited outside in his truck in front of the house for ten or fifteen minutes, after which he came to the door and rang the bell. When the door was not answered, defendant stood for a few minutes and then left. At that point plaintiff obtained a temporary restraining order.

The standard of review that governs our consideration of this appeal is well-established. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474 (1974)). Deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108 (1997)). "[T]he trial court . . . has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

To obtain an FRO based on harassment, pursuant to N.J.S.A. 2C:25-29(a), a plaintiff must prove by a preponderance of the evidence that defendant has committed the act of harassment, as defined in N.J.S.A. 2C:33-4. The types of harassment found by Judge McGrogan occur if a person, with purpose to harass another, "[m]akes, 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," or, with that same purpose, "[e]ngages 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) and (c). Our Supreme Court has said that "[a] finding of a purpose to harass may be inferred from the evidence presented and from common sense and experience." H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) (citations and quotation marks omitted).

Judge McGrogan found plaintiff credible. The judge described her demeanor as follows

I had the opportunity to observe the demeanor of [] plaintiff and [] defendant in court. [P]laintiff's demeanor during her testimony was at first calm. She then became teary as she testified about the last several months since she terminated the relationship. And her demeanor progressed to sobs leaving her barely []able to speak and needing a break.

The judge found that defendant knew plaintiff did not want any contact with him, not only because plaintiff told him so and did not answer any of his messages, but the judge also was able to determine from the content of defendant's messages that defendant was aware of plaintiff's wishes. For three months, defendant nonetheless persisted in pleading with plaintiff to contact him. The judge found that defendant pursued plaintiff relentlessly, sending numerous "disturbing" messages. Judge McGrogan analyzed the "totality of the circumstances" including the difference in age between the parties and plaintiff's testimony that defendant was "controlling," a classic sign of domestic violence. See State v. Hoffman, 149 N.J. 564, 585 (1997) (stating that "those who commit acts of domestic violence have an unhealthy need to control and dominate their partners . . . ."). The judge found plaintiff's fear of defendant to be reasonable.

Defendant argues on appeal that he wanted to reconcile with plaintiff, not harass her. We note that defendant may well have had a dual purpose in sending the messages: to reconcile and to harass. Our Supreme Court has stated, "We do not imply that, in evaluating claims of domestic violence, an individual can have only one motive or intent." J.D. v. M.D.F., 207 N.J. 458, 487 (2011). Drawing from common sense and experience, the end of a relationship may cause a party to behave in a harassing fashion while telling himself it is in the cause of true love. Defendant did not testify as to his purpose in contacting plaintiff, but the judge's finding that he had the purpose to harass is certainly supported by adequate, substantial, credible evidence.

Judge McGrogan found that the messages were sent at inconvenient times of the day. Defendant argues that a text message cannot be considered harassment because it may be deleted without reading and can be read at any time, not necessarily when it is sent. N.J.S.A. 2C:33-4(a), however, does not support this interpretation, focusing as it does on when the communication is made, not when or how it is received. See Pazienza v. Camarata, 381 N.J. Super. 173, 183-84 (App. Div. 2005) (where we considered sending text messages to be harassing behavior). Judge McGrogan also found that after plaintiff made clear that she wanted no contact, the disturbing content of the messages and repeated nature of the contact caused serious annoyance and alarm. See N.J.S.A. 2C:33-4(c). Plaintiff testified to experiencing the type of "anxiety or distress" required for such a finding. H.E.S., supra, 175 N.J. at 327. We affirm substantially on the basis of Judge McGrogan's well-grounded oral opinion.

Affirmed.