K.M.M. v. J.D.M., JR

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

K.M.M.,

Plaintiff-Respondent,

v.

J.D.M., JR.,

Defendant-Appellant.

_______________________________

August 6, 2014

Submitted May 5, 2014 Decided

Before Judges Kennedy and Guadagno.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-339-13.

Leonard Law Group, L.L.C., attorneys for appellant (James J. Leonard, Jr., on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order entered against him under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant's estranged wife obtained the order after the trial court found defendant committed an act of harassment against her. 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).

Defendant argues that the acts testified to by plaintiff do not constitute harassment, and that the Family Part judge erred in concluding there existed a need for a final restraining order (FRO). We have considered defendant's arguments in light of the law and the record, and for reasons stated hereinafter, we affirm.

On July 16, 2012, plaintiff filed a domestic violence civil complaint against defendant alleging that she was harassed on July 13, 2012, when defendant made serial telephone calls to her home and at one point told her that "if [defendant] can't have his family, he'll be damned if [plaintiff] will have the children . . . . [and] over [plaintiff's] dead body will [defendant] stand to watch [their] family with another man." Plaintiff averred that she believed defendant was "mentally unstable and fears for her life and the lives of her children." The court entered a temporary restraining order that day and thereafter the matter was scheduled for an F.R.O. hearing.

On the return date, both parties appeared without counsel and testified. After hearing the testimony of the parties, the trial judge found plaintiff to be credible, and defendant not to be credible. The judge found that defendant committed an "act of harassment" under N.J.S.A. 2C:33-4(a) and (c) by "engaging in a course of alarming conduct or repeatedly commit[ing] acts with the purpose to alarm or seriously annoy" plaintiff. The judge added,

I think this is a pattern of conduct by the defendant with the purpose to annoy and alarm the plaintiff, and I think that
-- I think, quite frankly, that he cannot see clearly because he feels as though -- and by his own testimony, "She is keeping my children from me."

And because he feels as though she -- the plaintiff is the impediment to keeping his children from him, he acts irrationally and bizarrely. Also, by the fact that according to his own testimony, this plaintiff is keeping him from being a Councilman in his town and for his other political aspirations that -- that clouds his judgment and . . . he continues to berate the plaintiff because she is standing in the way of him and his political career and of him being a father to his children.

And, I do not believe the defendant, based upon what I've
-- how I've watched him testify, how I'[ve] watched him throughout these proceedings, he sees her as an impediment to a lot of different things in his life. And when he says he's never threatened her, I don't believe him. When he says he's not bitter, I don't believe him.

So, it is for all those reasons that I find the plaintiff's testimony to be credible and the defendant's testimony not to be credible.

I find that the plaintiff has proven by a preponderance of the evidence that the defendant has committed acts of harassment under 2C:33-4(a) and (c) as -- for the reasons that I've just placed on the record.

I also find under Silver v. Silver, which is an Appellate Division case, 387 N.J. Super. 112[,] that the restraining order in this case is necessary to protect the plaintiff from not only immediate danger of the defendant but from future acts of domestic violence.

I believe the plaintiff when she's -- expresses her fear of the defendant. And I believe when she says she's in fear of him everyday, I believe her.

This appeal followed.

Our scope of review of the trial judge's factfinding is, of course, limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Rova Farms v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). A trial judge's findings of fact should be upheld if they are supported by "adequate, substantial and credible" evidence. Pascale v. Pascale, 113 N.J. 20, 33 (1998) (quoting Rova Farms, supra, 65 N.J. at 484). Because a trial judge "'[h]ears the case, sees and observes the witnesses, [and] hears them testify,' [the trial court] has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale, supra, 113 N.J. at 33 (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). We are especially reluctant to disturb a Family Part judge's factfinding. "Because 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. On the other hand, we owe no special deference to a trial court's legal interpretation of a statute, or the "legal consequences that flow from established facts." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

Essentially, defendant challenges both the trial judge's findings of a predicate act and the need for a final restraining order. Defendant contends that the conduct complained of is merely a type of verbal exchange that courts in the past have found not to rise to the level of domestic violence. Our Supreme Court recently stated that a trial court must exercise care in distinguishing between ordinary disputes and irritations common in a domestic relationship and those actions that cross the line into domestic violence. J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011). Similarly, in L.M.F. v. J.A.F., 421 N.J. Super. 523 (App. Div. 2011), we reversed a finding of harassment when the trial judge failed to find that the defendant's former spouse had a purpose to harass. Id. at 534-36. The defendant in that matter repeatedly texted his former wife in order to obtain information about their daughter's welfare and academic performance. Ibid.

Here, the trial judge relied upon subsections (a) and (c) of N.J.S.A. 2C:33-4:

[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 offensively course language, or any other manner likely to cause annoyance or alarm;

. . . .

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

The statute requires proof of a "purpose to harass" whether the case involves harassment under subsections (a) or (c).

The trial judge expressly found defendant's purpose was to harass when, in July 2012, he repeatedly called plaintiff's home, called her a series of foul names, and then uttered a series of threats. Thus, we are not persuaded by defendant's arguments that J.D., supra, 207 N.J. 458, and L.M.F., supra, 421 N.J. Super. 523, require reversal.

The trial judge carefully engaged in the delicate task of "[d]rawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall, instead, in the category of 'ordinary domestic contretemps.'" J.D., supra, 207 N.J. at 475 (quoting Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995)). The court considered prior acts of the defendant consisting of verbal abuse and escalating volatile behavior. The trial judge's findings respecting those prior acts were adequately supported by the record.

Turning to defendant's statements to plaintiff, we are mindful that subsection (a) of N.J.S.A. 2C:33-4 is generally focused on the mode of the speech employed and not a statement's content. State v. Hoffman, 149 N.J. 564, 583-84 (1997). However, defendant's messages were delivered at an utterly inconvenient hour, and were couched in coarse and abusive language. These messages, coming as they did, late at night and viewed in the context of defendant's prior conduct toward plaintiff, were likely to cause annoyance. Pazienza v. Camarata, 381 N.J. Super. 173, 183-84 (App. Div. 2005).

Regarding harassment in subsection (c), the evidence in the record supported a finding that defendant engaged in a course of alarming conduct for the purpose to alarm. A course of conduct under (c) does not require any minimal amount of time, duration or separate components. State v. J.T., 294 N.J. Super. 540, 545 (App. Div. 1996).

We find also no error in the judge's determination that a restraining order was necessary to protect plaintiff. The judge properly engaged in a separate inquiry regarding the need for restraints. See Silver v. Silver, 387 N.J. Super. 112, 126-28 (App. Div. 2006), requiring the court, after finding the commission of the predicate act of domestic violence, to make an inquiry whether a restraining order is necessary to protect the victim from immediate danger or to prevent further abuse based upon the evaluation of the facts set forth in N.J.S.A. 2C:25-29(a)(1) to (6). The judge's findings here were not conclusory. The judge relied upon the history of conduct between the parties, identifying specific instances of volatile conduct, and noting that defendant's inability to control himself and his insistence that his behavior was justified, made it likely that he would repeat his harassing behavior.

Affirmed.