F.S. v. M.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

F.S.,

Plaintiff-Respondent,

v.

M.S.,

Defendant-Appellant.

____________________________

April 25, 2014

Submitted March 5, 2014 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-573-13.

Davis Law Firm, LLC, attorney for appellant (Mark G. Davis, on the brief).

F.S., respondent pro se.

PER CURIAM

Defendant appeals from a final restraining order entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, on his wife's allegation of harassment. He argues that the trial court erred in concluding that comments he made constitute harassment as defined in subsection a. of N.J.S.A. 2C:33-4. Finding adequate support in the record for the judge's factual findings and no legal error, we affirm.

The restraining order at issue was entered following a single trial on the parties' cross-complaints under the PDVA. The judge also entered an order restraining defendant's wife on his allegation of assault made in a complaint he filed ten days after plaintiff filed hers, but she does not challenge that order. For that reason, our discussion of the facts focuses on those pertinent to the order restraining defendant.

This incident occurred on November 11, 2012. The parties had been married for about seven years and had two children who were four and six years old. When plaintiff awoke, defendant appeared to be preparing to leave. Because plaintiff had to work that day, she reminded defendant that she needed him to be home with the children. Defendant said, "I know, I know everything, I know everything, you're just too much, you're just so annoying. In fact, get your stinky ass out of my house." According to plaintiff, defendant then started calling her "all kinds of names, gold digger, bitch, stinky ass, get out of here. I don't want you. In fact, get your stuff and get the heck out of my house." He was "screaming and yelling." And he said, "you're so fat, look at you." The judge credited that testimony. He found that defendant "did exactly what [plaintiff] said he did here."

The judge also credited the testimony of witnesses who had personal knowledge of the parties' turbulent marriage. One neighbor heard plaintiff screaming at defendant on the morning in question, and she had heard their frequent arguments in the past. Several years before this incident, plaintiff went to a friend for shelter; she had a bloody mouth, bloody lips, and bruises. That friend discussed the matter with defendant, who told her he and his wife were fighting with each other, but did not deny hitting his wife. In her view, the parties had a traditional marriage in which the husband was in control. Plaintiff's sister testified about the parties' frequent arguments, family interventions, seeing plaintiff's bruises, and hearing defendant's pronouncements about his control of the marriage things such as, "it's my house, my rule, my this, my that."

The judge further believed plaintiff's testimony about an incident that occurred in April 2012, just months before this one. According to plaintiff, defendant was criticizing her for being a bad mother because she left the home to go to school and work. Plaintiff objected to the characterization and explained that she was doing those things to make a better life for the family. At that point, defendant got very upset and spit in her eyes, which caused an infection that required medication. On the same day, defendant gave plaintiff a knife in the kitchen and urged her to stab him.

In addition, the judge found that the additional incidents of violence plaintiff recounted during the early years of the marriage had occurred as she described. In 2006, he hit her very hard and was "beating her down," by which she meant boxing her in the face and hitting her in the area of her abdomen. When she tried to call the police, he smashed her cellphone against the wall and she left the house. In 2007, when she was four months pregnant, defendant slapped her face.

Plaintiff explained that because of everything defendant had done to her, she was afraid of him so afraid that she walked around with her cellphone in case she had to call 911. Viewing defendant's statements on November 11, 2012, which the judge characterized as name-calling, the judge concluded that under the circumstances of this case, which included a history of violence, defendant's name-calling amounted to harassment as defined in subsection a. of N.J.S.A. 2C:33-4.

N.J.S.A. 2C:33-4a states:

[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[.]

[(Emphasis added).]

Defendant argues that the court erred in concluding that his comments "were made either with the intent to harass or in a manner likely to cause an annoyance or alarm." He contends that his comments were "nothing more than a byproduct of general marital discord and bickering." We disagree.

There was ample evidence to support a finding that defendant acted "with purpose to harass" plaintiff. Purpose to harass may be inferred from the "nature of the verbal attack, the manner of its delivery and the attendant circumstances." C.M.F. v. R.G.F., 418 N.J. Super. 396, 404 (App. Div. 2011). The judge properly focused on the context. The statements were made in response to a simple question about child care, to which defendant responded by saying that he knew plaintiff was going to work and he was needed at home. He immediately demeaned plaintiff, calling her fat and stinky while telling her to get out of "his" house. Given the evidence establishing the history of the troubled marriage, which included violence that caused defendant to flee the house and defendant's efforts to exert control, there was adequate support for the judge's conclusions that: 1) defendant's conscious object was to harass his wife and 2) his name-calling coupled with a demand for his wife to leave his domain was done in a manner "likely to cause an annoyance or alarm." After all, as the judge noted, in the past plaintiff had "been forced to flee the house because of physical attacks" in which he beat her down, hit her in the face, bruised her, and spit in her eyes.

Where a judge's findings in a domestic violence case are supported by adequate, substantial, credible evidence and dependent upon credibility assessments, we do not interfere. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "It is only 'when the trial court's conclusions are so clearly mistaken or wide of the mark' that we will intervene and make our own findings 'to ensure that there is not a denial of justice.'" C.M.F., supra, 418 N.J. Super. at 401-02 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Applying those standards, there is no basis for intervention in this case.

Affirmed.