STATE OF NEW JERSEY v. S.J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

S.J.,

Defendant-Appellant.

______________________________

March 25, 2014

Argued March 5, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FO-05-000089-12.

Eric H. Lubin argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Louis M. Barbone and Mr. Lubin, on the brief).

Gretchen A. Pickering, Assistant Prosecutor, argued the cause for respondent (Robert L. Taylor, Cape May County Prosecutor, attorney; Ms. Pickering, of counsel and on the brief).

PER CURIAM

Defendant S.J. appeals from a judgment of conviction finding him guilty of the disorderly persons offense of violation of a domestic violence restraining order, N.J.S.A. 2C:29-9b, and imposing penalties of $125 and termination of his probation.1 Because defendant's conduct, although a technical violation of the restraining order, was too trivial to be actionable as a contempt, we reverse and remand for entry of an order vacating the judgment. See State v. Wilmouth, 302 N.J. Super. 20, 23 (App. Div. 1997).

Defendant and P.A.P. had been married for sixteen years and were the parents of two boys when P.A.P. filed for divorce in 2010. During those proceedings, P.A.P. obtained a final restraining order (FRO) against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.2 The FRO permitted text and email communication between the parties relating to the children's schedules and events. Such communication was to be "objective," with any "subjective concerns" to be addressed by the family's therapist. As it pertains to this matter, the FRO specifically provides:

Defendant may attend all games and practices of the children. At any games or practices, or if plaintiff and defendant are present at Viking Rowing Club or any other location at the same time, the parties must stay 10 yards away from each other at all times. In the event either party is coaching, the other party must give deference to the physical location of the coaching party, in that the non-coaching party must remain 10 yards away from the coaching party.

The facts giving rise to this action were largely undisputed at the contempt hearing. The parties were at the rowing club early on a Saturday morning. After assessing conditions on the water, P.A.P., who was coaching, determined that practice would be cancelled. Accordingly, she walked from the dock into the club's foyer to advise the assistant coach stationed there of her decision.

When P.A.P. entered the foyer, defendant was standing having a cup of coffee in the area of the foyer where coffee was served. Defendant stood quietly drinking his coffee as P.A.P. crossed within ten yards of him on her way to the table where the assistant coach was sitting. The table was more than ten yards from where defendant stood. After speaking with the assistant coach, P.A.P. pointed at defendant and then at the door, motioning to defendant that he needed to leave the club. Defendant replied that he did not "appreciate the finger action," and started for the door. P.A.P. acknowledged that defendant was retreating when she retorted, "restraining order, you need to go." Defendant immediately left the room, but not before saying "you're not starting this crap again?"

Although the judge found that defendant entered the rowing club, not to have contact with P.A.P., but to watch their son, that defendant was drinking a cup of coffee in an area in which he did not expect to encounter P.A.P., and that defendant was not in violation of the ten-yard separation requirement, he nevertheless found defendant in violation of the FRO. The judge based his finding on that fact that defendant "spoke to her and that's unrebutted and nowhere in the restraining order does it indicate that he's allowed to talk to her." The judge found defendant "guilty of violating the restraining order because he opened his mouth," finding "he certainly wasn't entitled to talk to her . . . and that's regardless of whether the conduct was invited or baited or anything else." This appeal followed.

The judge was obviously correct in finding that there existed a restraining order that prohibited defendant from having any oral contact with P.A.P., and that defendant was in technical violation of that order when he spoke to her as he left the rowing club at her request. But we do not agree that defendant's conduct can support a criminal contempt. The judge found that defendant was not in violation of the order when P.A.P. demanded that he leave the club. Nevertheless, defendant appropriately elected to depart. There is certainly no doubt that he exhibited poor judgment in choosing to give voice to his annoyance at P.A.P.'s pointing at him as he did so. There was likewise no need for P.A.P. to call after his retreating figure, and his angry response.

But as we have noted before, the PDVA "was not intended to attempt to regulate and adjudicate every loss of temper, angry word, or quarrel between persons connected by a familial relationship." Wilmouth, supra, 302 N.J. Super. at 23. In light of the judge's findings that defendant had no intent to interact with P.A.P. and was not in violation of the FRO when she began their exchange, this was simply too trivial an event to prosecute. See State v. S.K., 423 N.J. Super. 540, 547-48 (App. Div. 2012). Doing so squanders judicial and prosecutorial resources and unfairly subjects people to criminal penalties. Wilmouth, supra, 302 N.J. Super. at 23. While it may certainly have been appropriate for the judge to admonish defendant in order to prevent future violations of the FRO, a contempt conviction was unwarranted. State v. Krupinski, 321 N.J. Super. 34, 45 (App. Div. 1999).

We reverse defendant's conviction and remand to the Family Part to enter an order dismissing the complaint.

Reversed.

1 Although the record is far from clear on this point, defendant was apparently arrested previously for contempt and pled guilty to a municipal noise ordinance violation for which he was sentenced to probation.

2 Defendant appealed that order. We affirmed in an unpublished opinion. P.A.P. v. S.J., No. A-4331-10 (App. Div. Sept. 17, 2012).