W.V. v. J.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

W.V.,

Plaintiff-Respondent,

v.

J.T.,

Defendant-Appellant.

____________________________________________

April 7, 2014

Submitted March 10, 2014 - Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County Docket No. FV-12-1547-13.

Toni Ann Marcolini, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant J.T. appeals from the March 13, 2013 final restraining order (FRO) entered by the Family Part pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. For the reasons that follow, we reverse.

The parties divorced in 2011 after an eleven-year marriage during which two children were born. The judgment of divorce required defendant to pay plaintiff child support for the two children and limited duration alimony for four years.

On February 13, 2013, plaintiff obtained a temporary restraining order (TRO) against defendant alleging the predicate acts of stalking and harassment. In the complaint filed in support of the TRO, plaintiff alleged:

PARTIES ARE DIVORCED, PLA IS IN A NEW RELATIONSHIP. DEF TEXTED PLA STATING, "WE HAVE VIDEOS AND PICTURES OF YOU AND YOUR BOYFRIEND." DEF TEXTS PLA DAILY THREATENING TO TERMINATE ALIMONY, GET MORE VISITATION TIME AND HE DEGRADES HER. DEF HAS CALLED PLA A BITCH AND TOLD HER HE BEAT HER BECAUSE SHE DESERVED IT. DEF RECORDS THE CHILDREN AND SCREAMS AT THEM, DEMANDING INFORMATION ABOUT PLA'S NEW RELATIONSHIP. DEF TOLD THE CHILDREN PLA VIOLATES LAWS AND IS GOING TO JAIL. 2/6/13, PLA CALLED CRISIS MGT. FOR HELP. A COUNSELLOR TALKED TO ONE OF THE CHILDREN. 11/2012, THE CHILDREN TOLD PLA THEY SAW A LARGE KNIFE UNDER DEF'S BED AND HE TALKED ABOUT HAVING A GUN. 11/2012, DEF TEXTED PLA A PICTURE OF HER AND HER BOYFRIEND FROM A TRIP THEY TOOK TO MARYLAND IN OCTOBER 2012. HE TEXTED "WE KNOW WHERE YOU ARE. WE KNOW EVERYTHING ABOUT YOU GUYS. YOU GOT MARRIED" DEF THEN TALKED ABOUT STOPPING HER ALIMONY. PLA DENIES GETTING REMARRIED.

PLA STATES THAT ON 2/11/2013, DEF WENT TO THE RENTAL OFFICE WHERE HER BOYFRIEND LIVED AND ASKED [IF] HE STILL WAS A RESIDENT THERE. PLA STATES SHE HAS MOVED ON WITH HER LIFE AND DOES NOT WANT DEF TO HARASS HER.

In handwritten notations sprinkled throughout the margins of the complaint, the following additional allegations appear:

DEF TELLS PLA HE KNOWS PLA'S BOYFRIEND'S SCHEDULE & EVERYTHING HE DOES. DEF TELLS PLA "YES IF I BEAT YOU UP IT'S BECAUSE YOU DESERVE IT." DEF. "INSULTS ME: FUCKING PIECE OF CRAP." "THE TYPE OF PERSON WHO LIVES ON WELFARE." DEGRADES PLAINTIFF. DEF. HAS TEXTED PLA THAT HE KNOWS HER BOYFRIEND'S NAME, AGE, WHERE HE WORKS. DEF. HAS CALLED PLA'S BOYFRIEND. LAST WEEK DEF TOLD THE CHILD "MOMMY IS GOING TO JAIL BECAUSE SHE IS LYING." DEF QUESTIONS THE CHILDREN ABOUT PLA.

On March 13, 2013, the Family Part held a hearing on plaintiff's request for an FRO. Many of the allegations contained in the typed and handwritten portions of the complaint were never mentioned by plaintiff, let alone proved by a preponderance of the evidence. See Crespo v. Crespo, 408 N.J. Super. 25, 34 n.5 (App. Div. 2009), aff d o.b., 201 N.J. 207 (2010).

Plaintiff testified that on February 6, 2013, defendant texted her stating

He has videos and pictures of myself and that he knows everything what I do and he also says that my boyfriend he also knows everything about my boyfriend. He knows where he works.

Plaintiff also testified that the children were upset after they returned from visitation with defendant. According to plaintiff, the older daughter, who was then nine, told her that defendant said

mommy's going to jail because mommy is doing something illegal. Like she's co-habitating with her boyfriend and she is going to be going to jail because [plaintiff's boyfriend is] not supposed to be living with us.

Plaintiff also testified that in November 2012, defendant texted her that she was a "Puerto Rican piece of shit and that I'm nothing, that I - - I am a - - welfare recipient, that I need to get a job[.]" Plaintiff also testified that in November 2012, she went to Baltimore with her boyfriend to celebrate her birthday. She claimed defendant sent her a picture of her and her boyfriend, taken while they were in Baltimore. From that she concluded that defendant had followed her on the trip.

Plaintiff also interpreted defendant's request that she provide him with the children's passports so he could take them on vacation as a "threat" and suggested he was "trying to scare me that he's going to take the girls."

Finally, plaintiff claimed that she was subjected to domestic violence throughout the marriage with the last incident occurring in June 2010.

On cross-examination, plaintiff was shown a copy of a pending motion filed by defendant to terminate alimony. Attached to that motion was a report from a private investigator including photographs of plaintiff that were submitted in an attempt to establish that she was cohabitating with her boyfriend. When questioned about the contents of the report, plaintiff admitted that when defendant mentioned that he had photographs of her, he might have been referring to the photos taken by the investigator. She conceded that she had no proof that defendant, himself, had followed her or had taken any photos of her.

Plaintiff also acknowledged that, in accordance with the terms of the judgment of divorce, defendant had purchased a cell phone so that he could communicate with the children. Plaintiff admitted that she broke the phone and did not replace it for several months.

Defendant testified that he sent plaintiff an email in an attempt to determine whether she was cohabitating. Defendant introduced a copy of the email, dated November 25, 2012, which stated: "Question for you. Did you end up getting remarried?" Defendant explained that he sought the information because he felt that plaintiff's cohabitation would be a factor in reducing or eliminating his alimony. Plaintiff never responded to the email and defendant reluctantly hired a private investigator. Defendant explained that he attempted to resolve the matter without resorting to litigation, but plaintiff refused to respond to his inquiries.

Defendant also explained that the photograph of plaintiff and her boyfriend in Baltimore was taken by a mutual friend who had forwarded it to him. He denied asking the friend to take the photo and maintained that he received it unsolicited.

Defendant explained that he asked plaintiff for the children's passports so he could take them out of the country with his mother and brothers on a family vacation "as a normal family would." He also claimed that he learned from one of his daughter's teachers that the child had been going to school late. When he attempted to discuss this with plaintiff, she never responded.

Defendant exhibited some frustration when discussing the cell phone he had purchased to communicate with his daughters. After plaintiff broke the phone, he asked her to replace it and submitted an email dated November 12, 2012, wherein he stated:

[I] have been trying to reach the kids this evening. [I] called your cell phone . . . this evening in order to try and reach the girls and the phone rang the several times I called it and now it says the phone is unavailable. [I] am going to be very nice and polite. [I] am going to give you a week to get [older daughter] a phone. [I]f you don't I am going to have to bring you to court for this and other things.

Defendant testified that, despite repeated requests for plaintiff to replace the phone, she waited four or five months before doing so. Defendant characterized the behavior by plaintiff as "game playing" and provided other examples. When the children's phone was replaced, plaintiff would turn it off, explaining to her daughters that "your dad could actually track where we're at, what we're saying." Defendant also purchased a computer for the oldest child, but plaintiff would not let her use it in the home. The child had to bring the computer on her visits with defendant in order to use it.

Defendant admitted sending a text to plaintiff suggesting she might be committing welfare fraud. He explained that at the time he was paying her alimony and child support, plaintiff was collecting WIC1 and/or food stamps, which he did not think she was entitled to.

The judge found insufficient evidence to sustain the charge of stalking but found that defendant had committed "an act of harassment toward the plaintiff" pursuant to N.J.S.A. 2C:33-4(c). He found that "the level of . . . animosity from the defendant toward the plaintiff is palpable" and specifically referenced defendant's comment that plaintiff was "game playing" as an example. The court noted that defendant believed that he should not be paying alimony and acknowledged that defendant's motion for a reduction or elimination of alimony was pending. Nevertheless, the judge found that defendant's text accusing plaintiff of committing welfare fraud was an attempt to "blow off steam" and was a "clear indication . . . that there is only a purpose to harass by making . . . such a communication of texting."

Citing our decision in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), the trial court concluded without elaboration that "the palpable intent of animosity the defendant has toward the plaintiff can only lead to the . . . conclusion that it is necessary for the plaintiff['s] protection that a final restraining order be issued."

In an amplified decision filed pursuant to Rule 2:5-1, the court expanded its findings citing, (1) the text messages that referred to termination of alimony payments; (2) defendant's conversation with the children indicating that plaintiff would serve prison time for cohabitating; and (3) defendant's repeated text messages to plaintiff regarding her relationship with her boyfriend.

Our review of a trial judge's findings of fact and conclusions of law is very deferential and we should not disturb those findings and legal conclusions unless we are "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998).

N.J.S.A. 2C:33-4 defines the petty disorderly offense of harassment as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or cause 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;

b. Subjects another to striking, kicking, shoving or other offensive touching, or threatens to do so; or

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 trial court found defendant's text messages to plaintiff that her alimony payments should be terminated represented "a true indicator of the palpable animosity from the [d]efendant toward the [p]laintiff." It also concluded that messages referencing plaintiff's relationship with her boyfriend "further solidifies [defendant's] goal to no longer pay alimony to the [p]laintiff and to continue to frustrate [p]laintiff in her newfound relationship."

That conclusion ignores the basic principle that if plaintiff was indeed cohabitating with her boyfriend, defendant might be entitled to be relieved of some or all of his alimony obligation. See Konzelman v. Konzelman, 158 N.J. 185, 196 (1999) ("The contractual termination of alimony upon cohabitation is not violative of either statutory or public policy.").

When defendant suspected that plaintiff was cohabitating with her boyfriend, he made a brief and non-confrontational inquiry by sending the November 25, 2012 email, simply asking if she had remarried. Plaintiff admits that she failed to respond to defendant's inquiry and clearly indicated that he would have to go to court if he wanted relief:

I told him if he needed to file anything, go to court. I mentioned that to him, I don't have any problem. I don't do anything illegal. He can come to file a motion if he has to. There's nothing wrong with that.

The judgment of divorce provides that defendant's alimony obligation will terminate upon plaintiff's remarriage. It also provides that "[i]f plaintiff cohabits in a romantic relationship, defendant is permitted to make an application based upon prevailing law for either a reduction or a termination of alimony." When plaintiff refused to respond to defendant's inquiry regarding the nature of her relationship with her boyfriend, he hired a private investigator who conducted surveillance of plaintiff's apartment and concluded that her boyfriend appeared to reside there.

Once defendant obtained evidence of plaintiff's cohabitation, he testified that he informed her of the photos and videos "[s]o that we wouldn't have to come to court. Basically reach an agreement outside of court. I don't want to do everything via court."

The trial court failed to mention, let alone consider, defendant's expressed reason for contacting plaintiff. While defendant may have used crude and insulting language in some of his text messages, it is clear that his intent was to advise plaintiff that he had proof of her cohabitation in an attempt to resolve the alimony issue without litigation. The timing and content of the initial email followed by the private investigation and the filing of defendant's motion, all support this conclusion.

If defendant's intent in texting plaintiff was an attempt to resolve the alimony issue, it would not support the conclusion that he intended to annoy or alarm plaintiff. See J.D. v. M.D.F., 207 N.J. 458, 487-88 (2011) (no intent to harass where the defendant, who was preparing a motion for a change in custody based on the plaintiff's cohabitation, took photos of the plaintiff's home). The trial court's conclusion that defendant intended "to frustrate [p]laintiff in her newfound relationship" is untethered to any evidence in the record before us.

As the trial court placed particular significance on defendant's testimony that plaintiff was "game playing," in concluding that he intended to harass plaintiff, we examine the context of the remark and the circumstances that prompted it. Plaintiff admitted that she broke the cell phone defendant purchased for the children and, in spite of defendant's repeated requests, failed to replace that phone for several months. She did not deny defendant's allegations that she turned off the phone and told the children that defendant could track where they were and monitor their conversations. Finally, plaintiff did not deny that she refused to let the older daughter use the computer that defendant had purchased for her and told the child that defendant was "tracking her or seeing what they're doing

. . . because she thinks that I'm going to put a device in the computer."

While the trial court made no specific findings concerning these unrebutted allegations, if they are true, defendant's characterization of plaintiff's conduct as "game playing" provides no support to the court's conclusion that defendant had the intent to harass. Moreover, the comment may have been an accurate description of plaintiff's conduct.

The court found that defendant told the oldest daughter that plaintiff was going to jail because she was cohabitating with her boyfriend. The court found "no true purpose" to have that type of conversation with an adolescent and concluded defendant was using the child as a "medium" to harass plaintiff.

The harassment statute requires that the victim, in this instance plaintiff, be the target of the harassing intent. See M.D.F., supra, 207 N.J. at 486 (defendant's snide remarks to plaintiff's boyfriend could not serve as evidence of an intent to annoy or alarm plaintiff); see also D.C. v. T.H., 269 N.J. Super. 458, 459-62 (App. Div. 1994) (a defendant who made threatening remarks toward the boyfriend of his child's mother but not directed to her personally did not commit act of domestic violence). While it is always unfortunate when parents involve their children in their disputes, there is no evidence here that defendant intended his child to convey his conversation with her to plaintiff, as suggested by the court.

The trial court found that defendant's conduct violated subsection (c) of N.J.S.A. 2C:33-4. A violation of subsection (c) requires proof of a course of conduct that may be alarming or a series of repeated acts done with the purpose "to alarm or seriously annoy" the intended victim. Ibid. In interpreting subsection (c), which refers to "serious" annoyance or alarm, our Supreme Court has explained that the phrase means "to weary, worry, trouble, or offend." State v. Hoffman, 149 N.J. 564, 581 (1997).

We find the court's conclusion, that defendant engaged in "alarming conduct with the purpose to harass the [p]laintiff" is unsupported by the facts. While the trial court may have perceived a palpable level of animosity by defendant towards plaintiff, that finding is woefully inadequate to support its conclusion that defendant intended to harass plaintiff and that an FRO was necessary to prevent future abuse. See Silver, supra, 387 N.J. Super. at 126-27.

1 WIC refers to Women, Infants, and Children. WIC provides federal grants to states for supplemental foods, health care, and education for low-income parents and to infants and children up to age five who are found to be at nutritional risk. Women, Infants and Children, United States Department of Agriculture, http://www.fns.usda.gov/WIC (last visited March 28, 2014).