J.E.S v. A.S., JR

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

J.E.S.,

Plaintiff-Respondent,

v.

A.S., JR.,

Defendant-Appellant.

________________________________

March 11, 2016

Submitted December 1, 2015 Decided

Before Judges Leone and Whipple.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-2740-14.

Joel Silberman, attorney for appellant.

Mark A. Blacher, attorney for respondent.

PER CURIAM

Defendant A.S., Jr. appeals the entry of a Final Restraining Order (FRO) in favor of plaintiff J.E.S. Defendant contends the trial court erred as a matter of law in finding harassment under N.J.S.A. 2C:33-4. Because defendant told plaintiff she would be in a body bag if she pursued child support, we affirm.

I.

Defendant and plaintiff were married and have two young children. They separated around 2011. At the time of this litigation, the parties' divorce proceeding was pending, custody of the children was a point of conflict, and no temporary custody order was in place. The children were living with plaintiff and had occasional visitation with defendant.

On June 19, 2014, plaintiff filed a complaint in the Family Part, seeking protection from defendant under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. The trial court held two days of hearings, at which defendant, plaintiff, and plaintiff's mother testified. In its oral opinion supporting entry of the FRO on July 16, 2014, the trial court made the following findings of fact.

On June 8, 2014, defendant went to a church service which was being attended by plaintiff and one of the parties' children. Defendant brought his girlfriend and his mother with him. The trial court found defendant came to the church service as part of a course of alarming conduct with the intention of seriously annoying or alarming plaintiff, in violation of N.J.S.A. 2C:33-4(c).

On Father's Day, June 15, 2014, defendant went to plaintiff's home but discovered that the children were not willing to have visitation at that time. The trial court found that defendant then made two statements to plaintiff about putting her in a body bag in "offensively coarse language likely to cause annoyance or alarm, and that he did that with the purpose to harass."

On the morning of June 19, 2014, defendant took the children out of school without providing plaintiff with prior notice. Shortly thereafter, defendant sent a text message to plaintiff that he would inform her later when he planned to return the children. The trial court found that on June 19, 2014, defendant "engaged in a course of alarming conduct for the purpose to harass the [plaintiff]" under N.J.S.A. 2C:33-4(c). The court held that this occurrence "was really a culmination of the events that transpired on June 8th [and] June 15th."

In addition to finding that defendant had committed three predicate acts of harassment within the meaning of N.J.S.A. 2C:33-4(a) and (c), the trial court also found that there was a need to enter the FRO to prevent further acts of domestic violence and to protect plaintiff. The court cited as prior history that on February 11, 2014, defendant sent plaintiff a text message attaching a picture of a letter approving an application for a gun permit. The text message indicated it was forwarded from another phone number. The court inferred that defendant was responsible for forwarding the text message to plaintiff, with the purpose of threatening or intimidating her, even though the text message "was forwarded [from] a phone number which apparently is not the defendant's." Moreover, defendant admitted that he had a gun permit and that he needed to carry a gun at work.

Defendant filed a motion for reconsideration, or in the alternative, a motion for a new trial. After hearing oral argument, the trial court denied defendant's motion in a memorandum opinion and order dated October 22, 2013.

II.

Defendant appeals, arguing

POINT I: THE FINAL RESTRAINING ORDER MUST BE VACATED BECAUSE THE EVIDENCE PRESENTED FAILS TO ESTABLISH THE REQUISITE ACT OF HARASSMENT AS A MATTER OF LAW.

POINT II: THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT'S MOTION FOR RECONSIDERATION AND/OR A NEW TRIAL.

"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.' Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses.'" Id. at 412 (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)).

"We accord particular deference to the judge's factfinding because of 'the family courts' special jurisdiction and expertise in family matters.'" Clark v. Clark, 429 N.J. Super. 61, 70 (App. Div. 2012) (quoting Cesare, supra, 154 N.J. at 413). We may reverse only if there is "'a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or wide of the mark.'" Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)) (alteration in original). We must hew to our standard of review.

III.

Defendant claims the evidence failed to establish any predicate act of harassment. "[H]arassment is the predicate offense that presents the greatest challenges to our courts as they strive to apply the underlying criminal statute that defines the offense to the realm of domestic discord." J.D. v. M.D.F., 207 N.J. 458, 475 (2011).

"Each of [the] three subsections [of N.J.S.A. 2C:33-4] is 'free-standing, because each defines an offense in its own right.'" State v. Hoffman, 149 N.J. 564, 576 (1997) (citation omitted). Subsection (a) provides that a person commits harassment if, with purpose to harass another, he "[m]akes, 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." N.J.S.A. 2C:33-4(a). Subsection (c) provides that a person commits harassment if, with the purpose to harass another, he "[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33-4(c). "[T]o annoy" under N.J.S.A. 2C:33-4(a) means "to disturb, irritate, or bother." Hoffman, supra, 149 N.J. at 580. "[S]erious annoyance under subsection (c) means to weary, worry, trouble, or offend." Id. at 581.

Subsection (a) is "'aimed, not at the content of the offending statements but rather at the manner in which they were communicated.'" Hoffman, supra, 149 N.J.at 583 (citation omitted). By proscribing communications that are "sent anonymously, or at an extremely inconvenient hour, or in offensively coarse language," subsection (a) precluded "three types of communication [that] properly can be classified as being invasive of the recipient's privacy." Ibid. Likewise, the phrase "any other manner likely to cause annoyance or alarm," N.J.S.A.2C:33-4(a), encompasses only those modes of communicative harassment that "are alsoinvasive of the recipient's privacy." Hoffman, supra, 149 N.J.at 583. "Speech that does not invade one's privacy by its anonymity, offensive coarseness, or extreme inconvenience does not lose constitutional protection even when it is annoying." Id.at 583-84.

We first consider the trial court's finding that defendant essentially told plaintiff he would put her in a body bag on June 15, 2014. Plaintiff testified that at least twice, defendant told her "that if I go through with child support, we'll see if they can find my body my body bag." Plaintiff testified she viewed this as a threat that she will "be in a body bag," and that "they'll find [her] in a body bag." Defendant testified that he did not say "I was going to put her in a body bag." On cross-examination, defendant said he "never said anything about a body bag," but when pressed he instead said "I have never told her that if she raises the child support that I would put her in a body bag," and that he never "implied or threatened her using those words."

The trial court found defendant's testimony on this point was not credible because "he was evasive as to whether or not he had used that language in the presence of the plaintiff." We defer to that credibility determination, which was based largely on the trial court s observation of the testimony. See Cesare, supra, 154 N.J. at 412. Based on that finding, the trial court found that defendant's statement was harassment under N.J.S.A. 2C:33-4(a). 1

This case is distinguishable from Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995), where we found the statement I ll bury you insufficient to prove the predicate act of harassment and reversed the trial court s issuance of an FRO. In that case, the defendant testified that he meant bury the plaintiff in court, and the trial court appear[ed] to have found that defendant did not make the statement with the intent to harass. Id. at 50-51, 55. Here, by contrast, the trial court found defendant had the purpose to harass when he made the statement about plaintiff being in a body bag if she pursued child support.

The Supreme Court distinguished Peranio in Cesare. Cesare, supra, 154 N.J. at 415-16. In Cesare, the defendant told the plaintiff that "I do have a choice" on whether she got custody of the children or any proceeds from selling the marital home, and the plaintiff interpreted that as a threat because the defendant had a gun and because he had previously stated to her "'that he will kill me before I get custody of our children and before he gives me any part of our assets.'" Id. at 406. The Court found that, "[a]lthough defendant's words did not contain an explicit threat to kill, the surrounding circumstances were such that the trial court, in the best position to judge the credibility of the witnesses, appropriately found that" the defendant was threatening the victim. Id. at 414. The Court also found that "defendant's use of the phrase 'I do have a choice' and his repeated attempts to convince plaintiff to come upstairs, which plaintiff testified were unusual after an argument, could be viewed as communications likely to cause annoyance or alarm made with the purpose to harass" under N.J.S.A. 2C:33-4(a). Ibid.; see also Roe v. Roe, 253 N.J. Super. 418, 422-23, 429 (App. Div. 1992) (finding the defendant's statement to his wife that they would no longer be connected "if I kill you" or "have someone do it" "was sufficient to support the charge that a violation of the harassment statute, N.J.S.A. 2C:33-4(a), took place, specifically a communication of a threat to kill plaintiff by defendant or another in a 'manner likely to cause annoyance or alarm'").2

Here, defendant's statement was less veiled than in Cesare. Defendant explicitly stated that if plaintiff pursued child support, she would be in a body bag. However, his prior texting to plaintiff of a photo of the letter approving a gun permit was a less explicit threat than the prior statements by the defendant in Cesare. In this situation, "[t]he judicial system must once again rely on the trial courts as the gatekeeper." Cesare, supra, 154 N.J. (quoting Hoffman, supra, 149 N.J. at 586). In Cesare, the Court reversed our vacating of the FRO, stating: "Because the entire case was premised on disputed testimony and the credibility of witnesses, and given the special expertise of the family court, the Appellate Division should have granted more deference to the trial court's findings." Ibid. Extending such deference here, we uphold the finding of the trial court that defendant's statements constituted harassment under N.J.S.A. 2C:33-4(a).

Moreover, defendant's June 15 statements about plaintiff in a body bag were not the only conduct the trial court found harassing. Indeed, the court found that "the events of June 8th, June 15th, and June 19th" all supported its finding that defendant harassed plaintiff. Thus, we examine the events on June 8 and 19.

The trial court found that on June 8, 2014, defendant went with his girlfriend to plaintiff s church with the purpose to harass and to alarm or seriously annoy plaintiff, whom he correctly believed would be in attendance. Defendant testified that his regular church was in Brooklyn, New York, but that he had traveled to this church in Jersey City simply to avoid traffic due to a parade being held on that day. The court did not find these statements credible. We find no reason to disrupt the trial court's factual finding with regard to defendant's purpose.

The trial court also found that on June 19, 2014, defendant acted with the intent to harass plaintiff and to alarm or seriously annoy her when he took the children out of school without notice to her, and failed to immediately indicate when he planned to return the children to her. Defendant argues that his only motivation was to enforce his parenting time based on an instruction from his divorce attorney. However, the trial court did not find defendant's alleged motivation credible, and we defer to that determination. The court also found that defendant was evasive when he was asked if he had someone impersonate plaintiff in order to have the children released to him by the school.

Of course, persons generally are free to attend the church of their choice. Moreover, it is not clear in the record why defendant was not permitted to pick his sons up at school without the advance permission of plaintiff. Plaintiff did not allege that there was temporary custody order in place forbidding defendant from asserting his parenting rights. However, we see no basis to disturb the trial court's finding that defendant did these acts with the purpose to harass, and to alarm or seriously annoy plaintiff.

We need not determine whether either the June 8 incident, or the June 19 incident, would be sufficient in itself to constitute a "course of alarming conduct or of repeatedly committed acts." N.J.S.A. 2C:33-4(c). It is sufficient for us to note that the trial court's finding that defendant acted with the intent to harass, alarm, and seriously annoy plaintiff on June 8 and June 19 fortifies the court's finding that defendant acted with the intent to harass, alarm, and annoy on June 15 when he said plaintiff would be in a body bag if she sought child support.

Defendant contends that the alleged acts of harassment were simply domestic contretemps. "Drawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of 'ordinary domestic contretemps' presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application." J.D., supra, 207 N.J. at 475 (quoting Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995)). Therefore, "we have vested great discretion in our Family Part judges," "who have been specially trained to detect the difference between domestic violence and more ordinary differences that arise between couples, and we have recognized that their findings are entitled to deference." Id. at 482. We cannot say that the trial court erred in finding that line was crossed by defendant's statement about plaintiff being in a body bag, particularly when considered in light of defendant's other actions with the intent to harass. Accordingly, we affirm the trial court's finding that defendant committed a predicate act of domestic violence by violating N.J.S.A. 2C:33-4.

IV.

"The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim." J.D., supra, 207 N.J. at 475 (quoting Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006)). "'[T]he guiding standard is whether a restraining order is necessary, upon an evaluation of the facts 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 475-76 (citation omitted). Two of the criteria set forth in N.J.S.A. 2C:25-29(a) are "[t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse," and "[t]he existence of immediate danger to person or property." N.J.S.A. 2C:25-29(a)(1), (2).

Defendant argues that plaintiff sought a restraining order to get an advantage in their divorce proceeding, particularly on the issue of custody. Trial courts must be "careful lest a plaintiff be permitted to seize upon what is truly an innocent act in an effort to gain an advantage in litigation between parties." J.D., supra, 207 N.J. at 488. Here, we cannot say that defendant's comments about plaintiff in a body bag were a truly innocent act, and we defer to the trial court's feel of the case on whether plaintiff was misusing the Act.

The trial court found "there is a need to enter the final restraining order to prevent further acts of domestic violence and to protect the plaintiff in this case." The court found defendant was responsible for forwarding to plaintiff a text message attaching the picture of the letter approving the gun permit, and that he did so in order to threaten or intimidate her. The court made clear it took "the gun permit as part of a prior history upon . . . which I am basing my decision to enter the final restraining order."

We agree that sending the image of the gun permit letter to plaintiff supported the need to issue a restraining order. It indicated that defendant's course of alarming conduct over June 8, 15, and 19 was not aberrational, that defendant's body bag comment was another effort to threaten or intimate plaintiff, and that defendant had access to a gun to put plaintiff in a body bag. Indeed, defendant testified that he had a gun permit and that he had access to a firearm at work. Based on that prior history, the trial court properly found that a restraining order was necessary to protect plaintiff from immediate danger and further abuse.

At the FRO hearing, defendant denied sending the text message, claiming that plaintiff had hijacked control of his cell phone and sent the text message and photo to her own phone. The trial court did not credit defendant's claim and we defer to its credibility finding.

V.

In his motion for reconsideration, defendant argued that the trial court wrongly relied on the text attaching the picture of the gun permit letter. Defendant supported his motion with a sworn statement from C.C., who attested that he sent the text message attaching the picture of the gun permit letter, that the permit was his, and that he sent it to what he thought was defendant's phone number. The trial court responded to C.C.'s certification by stating: "While it may be true that another party was responsible, the Court did not base its[] decision on the prior history; it merely took the text into consideration as advised by law." The court also noted that a "sufficiently egregious action [may] constitute domestic violence under the Act, even with no history of abuse between the parties[.]" Cesare, supra, 154 N.J. at 402.

We need not decide whether the acts alleged in June 2014 were sufficiently egregious to justify a restraining order without any prior history, because defendant's reconsideration motion did not require the trial court to ignore the prior history. "Motions for reconsideration are granted only under very narrow circumstances[.]" Fusco v. Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002).

Reconsideration should be used only for those cases which fall into that narrow corridor in which either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]

"[A] trial court's reconsideration decision will be left undisturbed unless it represents a clear abuse of discretion." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015) (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). Similarly, "[a] motion for a new trial is addressed to the sound discretion of the trial court." Baumann v. Marinaro, 95 N.J. 380, 389 (1984).

Here, we find no abuse of discretion. Defendant failed to show that the trial court expressed its original decision on a palpably incorrect basis, or overlooked any evidence at the FRO hearing. Rather, defendant submitted a certification created after the FRO hearing. Defendant cannot fault the judge for not considering, or failing to appreciate, evidence that was not presented at the hearing. Fusco, supra, 349 N.J. Super. at 462-63. Moreover, no facts have been presented to us why C.C. could not have been called as a witness at the FRO hearing. See Del Vecchio v. Hemberger, 388 N.J. Super. 179, 189 (App. Div. 2006). Thus, the certification "was not a proper basis for relief." Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 175 (App. Div. 2005).

Additionally, the certification from C.C. alleging that he sent the text message to defendant does not change the trial court's finding that defendant then forwarded the image to plaintiff. Indeed, this text appears to have been sent only minutes after a text to plaintiff for which defendant has not denied responsibility. In any event, defendant admitted that he had a gun permit and had access to a firearm, which showed he possessed the means to carry out his body bag comments. Thus, the trial court did not abuse its discretion in denying defendant's motion for reconsideration or a new trial.

Defendant's remaining arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 For reasons unclear to us, the trial court did not find that the statements about plaintiff in a body bag were in violation of N.J.S.A. 2C:33-4(b), which provides that a person has committed harassment if he "[s]ubjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so." Accordingly, we do not consider that subsection.

2 Both Cesare and Roe considered these statements adequate under the catch-all portion of N.J.S.A. 2C:33-4(a), namely that the defendant made the communication in "any other manner likely to cause annoyance or alarm." We do likewise, and therefore do not need to consider whether defendant's statement constituted "offensively coarse language." Ibid.