M.H. v. J.F.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2329-13T2

M.H.,

Plaintiff-Respondent,

v.

J.F.H.,

Defendant-Appellant.

__________________________

July 16, 2015

Submitted February 2, 2015 Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0440-14.

The Serruto Law Firm, attorneys for appellant (Roger A. Serruto, of counsel; Leonard B. Cohen, on the brief).

Respondent M.H. has not filed a brief.

PER CURIAM

Defendant J.F.H. appeals from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A. 2C:33-4(a). We affirm in part, reverse in part and remand for further proceedings.

Defendant and plaintiff M.H. were married in 1992, and divorced in 2013. They have three children. Pursuant to a property settlement agreement, the parties agreed to continue living in the marital home with the children following the divorce until the home was sold. Their relationship, however, was contentious.

Plaintiff went to the police and sought a temporary restraining order in December 2013, after several incidents, including multiple times where defendant verbally attacked her and called her a "fucking whore" or "Cuban whore" in the presence of one or more of the children. Plaintiff contended that defendant purposely harassed her because he was angry about the divorce and being forced to sell the marital home. Defendant generally denied plaintiff's allegations, although he admitted that he called her a "piece of shit" on at least one occasion.

The trial judge found that plaintiff's account of events was more credible, as it was consistent with underlying documentation in police reports and correspondence from her former divorce attorney. The judge acknowledged, however, that there was no physical abuse or threats by defendant. Based on the totality of the circumstances, the judge found that defendant's verbal attacks, which often occurred in the children's presence, constituted a pattern of harassment under N.J.S.A. 2C:33-4(a). The judge also found that a FRO was needed "to prevent future acts like this from occurring." On appeal, defendant contends, in part, that there was insufficient evidence in the record supporting the judge's findings.

Our review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Ibid. Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Deference 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, 117 (1997)). The question is not whether we would come to a different conclusion were we the trial tribunal. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). We intervene only when convinced that the trial judge's factual findings and legal conclusions "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, "the trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)).

A plaintiff seeking a FRO under the PDVA must establish by a preponderance of the evidence that the defendant committed an act of domestic violence. Franklin v. Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006). The PDVA defines domestic violence as the commission of any one or more of the fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19(a). Harassment under N.J.S.A. 2C:33-4 is among the fourteen predicate offenses that, if proven, may entitle a plaintiff to the entry of a FRO. N.J.S.A. 2C:25-19(a)(13); N.J.S.A. 2C:25-29(b)(1), (6)-(7). The offense of harassment at issue here is committed when a person, with purpose to harass "[m]akes . . . a communication . . . in offensively coarse language, or any other manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4(a). To establish harassment under N.J.S.A. 2C:33-4(a), the plaintiff must prove that "(1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient." C.M.F. v. R.G.F., 418 N.J. Super. 396, 402 (App. Div. 2011).

A finding of harassment requires proof that the defendant acted with "purpose to harass." See Silver v. Silver, 387 N.J. Super. 112, 124 (App. Div. 2006). "A finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." State v. Hoffman, 149 N.J. 564, 577 (1997). If a defendant's anger motivates a verbal attack of a plaintiff, it does not negate a defendant's intent to harass pursuant to N.J.S.A. 2C:33-4(a). C.M.F., supra, 418 N.J. Super. at 404.

Significantly, the commission of a predicate act does not automatically "warrant the issuance of a domestic violence order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Rather, consideration of a domestic violence complaint is a two-fold task. Silver, supra, 387 N.J. Super. at 125. "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Ibid. Second, upon a finding that the defendant committed a predicate act of domestic violence, the court determines whether it should "enter a restraining order that provides protection for the victim." Id. at 126.

For the second prong, "the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. The factors which the court should consider include, but are not limited to

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the protection of the victim's safety; and

(6) The existence of a verifiable order of protection from another jurisdiction.

[N.J.S.A. 2C:25-29(a).]

Although the court is not required to incorporate all of these factors in its findings, "the Act does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.'" Cesare, supra, 154 N.J. at 401-02 (1998) (alteration in original) (quoting Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995)).

Ordinarily, domestic violence is "'more than an isolated aberrant non-violent act. . . . While a single sufficiently egregious action may constitute domestic violence even if there is no history of abuse between the parties, a court may also determine that an ambiguous incident qualifies as domestic violence based on finding previous acts of violence.'" Silver, supra, 387 N.J. Super. at 123 (quoting Kamen v. Egan, 322 N.J. Super. 222, 227-28 (App. Div. 1999)). However, the [PDVA] is not intended to encompass "ordinary domestic contretemps." Corrente, supra, 281 N.J. Super. at 250. Rather, "[t]he [PDVA] is intended to assist those who are truly the victims of domestic violence." Silver, supra, 387 N.J. Super. at 124 (quoting Kamen, supra, 322 N.J. Super. at 229).

We are satisfied that the evidence in this case amply supports the judge's finding that defendant committed the predicate act of harassment under N.J.S.A. 2C:33-4(a). Defendant often used offensively coarse language to the plaintiff in the presence of one or more of the children. See C.M.F., supra, 418 N.J. Super. at 399 (finding the defendant's use of the words "pig" and "you're a whore, you're a slut, and you're a fucking bitch" to the plaintiff constituted harassment under N.J.S.A. 2C:33-4(a)). The necessary intent to harass plaintiff can be inferred from the nature of defendant's verbal attacks. Id. at 404. Accordingly, the first Silver prong was met.

We reach a different conclusion as to the second Silver prong. The judge made a conclusory finding that a FRO was needed to "to prevent future acts like this from occurring," frequently referring to the underlying problem of divorced parties living under the same roof. The judge did not engage in the analysis required by Silver to make this finding. We, thus, remand to the trial court for a proper analysis of the second Silver prong. The court may reopen the record to evaluate the ongoing need for a FRO.

Affirmed in part, reversed in part and remanded for further proceedings. We do not retain jurisdiction.