I.S.-P. v. L.A.P.-C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

I.S.-P.,

Plaintiff-Respondent,

v.

L.A.P.-C.,

Defendant-Appellant.

__________________________________

March 24, 2016

Submitted March 8, 2016 Decided

Before Judges Yannotti, St. John, and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-761-15.

The Gorman Law Firm, attorneys for appellant (Scott A. Gorman, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order (FRO) entered by the Family Part on October 24, 2014, pursuant to the New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse and remand for further proceedings.

I.

We discern the following facts and procedural history from the record. Plaintiff and defendant were married in 2010. After their marriage, plaintiff resided outside of the United States and defendant lived within the United States. Plaintiff came to the United States in December 2013, and resided with defendant for about three days in March 2014. Defendant thereafter lived in Long Island, New York, and plaintiff resided in Bloomfield, New Jersey. Plaintiff has one son. Defendant is not the child's father.

On August 31, 2014, plaintiff filed a complaint requesting the issuance of a restraining order against defendant. Plaintiff alleged that defendant committed the predicate act of harassment, N.J.S.A. 2C:33-4, under the PDVA. N.J.S.A. 2C:25-19(a)(13). A municipal court judge issued a temporary restraining order (TRO) on August 31, 2014, defendant received notice of the TRO on September 5, 2014, and he was served with the TRO on October 10, 2014.

On October 24, 2014, the parties appeared in the Family Part for a hearing on whether a final restraining order (FRO) should be issued. Plaintiff appeared pro se.

Plaintiff testified that on August 30, 2014, she exchanged text messages with defendant because defendant wanted to bring a gift to plaintiff's home for her son. Plaintiff consented to defendant's delivery of the gift to her home. At 1:30 a.m. on August 31, 2014, plaintiff was lying in her bed, felt a strange movement in her bedroom, and believed there was someone at her window. She asked "who's there?" but did not receive a response. Plaintiff turned on a light and saw defendant moving the air conditioner unit from her bedroom window. She asked him what he was doing and what he wanted and he said "it's me." Movement of the air conditioning unit permitted entry into plaintiff's bedroom through the window.

Defendant moved toward the front of plaintiff's house, and she called the police. He left a gift for plaintiff's son at the front door of the house and departed. Defendant subsequently sent plaintiff a text message saying that plaintiff's landlord advised him to knock on her window where the air conditioning unit was located. Plaintiff and defendant spoke on the phone and plaintiff told defendant that she was throwing the gift in the garbage and that the police were on the way to her home.

Plaintiff testified that she previously filed a complaint for a TRO against defendant in March 2014, alleging that he harassed her by breaking things in her home, and that he was arrested for violating the order. Plaintiff consented to the dismissal of the complaint because defendant agreed to move out of the home and to not harass plaintiff. She also described three other incidents of what she characterized as harassment that occurred between March 2014, and the incident on August 31, 2014.

During the summer of 2014, defendant would call plaintiff and tell her that he was waiting outside of her house. One evening defendant, who resided in Long Island, slept in his car in a parking lot near plaintiff's house, and plaintiff believed he was stalking her, as he was "lurking" and standing outside of his vehicle. She confronted defendant and asked why he was "checking [her] out" and defendant said he would "sleep wherever [he] want[ed]."

In June 2014, plaintiff awoke early in the morning and saw defendant outside of her house in his car. She later took her six-year old son to her aunt's house so her aunt could watch him while plaintiff was at work. When plaintiff called to arrange to pick up the child, her aunt said she could not find him. Based upon plaintiff's observations of defendant in the area earlier in the day, she suspected that defendant took her son.

Plaintiff went to her aunt's home and saw defendant with her son walking down the street. Defendant had taken the child from the aunt's home without telling anyone. When plaintiff approached defendant, he told the child that plaintiff was "bad" and that she did not love the child, and he asked the child to tell plaintiff to allow him to return to live at their home.

During the period after March 2014, defendant constantly sent plaintiff text messages on her phone, cursing at her, calling her a drug addict, saying that he was going to "kick [her] out of the country," stating that she does not "pick up his phone calls because [she is] fucking some guy inside the house," and saying "that [she was] used to being beaten and mistreated because [her] prior partner used to do [that] to [her]."

On August 31, 2014, plaintiff advised defendant via text message that a TRO had been entered and he could have no further contact with her. Defendant thereafter ceased sending text messages to plaintiff.

In response to questioning by the court, plaintiff stated that she sought a FRO because she was scared of defendant, was unable to sleep at her house, and had "no peace at home." Plaintiff also testified that defendant did not understand that she does "not want to be with him" and that he has "no basis going back to [her] home" because she "pay[s] for it."

Defendant testified that on August 30, 2014, he exchanged text messages with plaintiff to find out if she was working that night because he wanted to bring her son a gift. At approximately 10:15 or 10:20 p.m. defendant left work in Long Island and drove two hours to plaintiff's place of work to drop off the gift. Upon his arrival, defendant was told that plaintiff was not at work that evening.

According to defendant, he then went to plaintiff's home and knocked on the front door, but when no one answered he spoke to the owner of the building and asked for permission to knock on the air conditioner in the window of plaintiff's bedroom. The owner went with defendant to knock on the air conditioner. Defendant denied moving the air conditioner from the window.

Defendant testified that plaintiff was awake and plaintiff asked who was there because she could not see him. After defendant identified himself, plaintiff "responded aggressively," asking "what are you looking for in my house?" and stating "I will call the cops on you." Defendant left the gift by the door, departed from the home, and called plaintiff to let her know the gift was by the door. Plaintiff told defendant that she was throwing the gift in the trash and informed him she called the police.

In response to questions regarding the other incidents plaintiff described, defendant admitted that after going to a club in the summer of 2014 he slept in his car in a parking lot near plaintiff's house, and that by coincidence the next morning he was coming out of his car when plaintiff was walking by. Defendant acknowledged that plaintiff asked him why he was following her and he responded that "this is a parking lot. This is not your home."

Defendant testified that in June 2014, he was helping plaintiff's aunt and uncle clean an apartment and took plaintiff's son to get food. Initially plaintiff's aunt told defendant not to take the child but then allowed him to do so because the child became upset. Plaintiff called defendant and told him to bring back her child, which he did.

Defendant admitted sending plaintiff offensive text messages, and said that plaintiff would also send defendant obscene messages with "aggressive words." Defendant also acknowledged that after the TRO was dismissed in March 2014, he returned to plaintiff's home and, in response to plaintiff's request, he "picked everything up and left."

At the conclusion of the FRO hearing, the court found plaintiff's testimony was credible, accepted portions of defendant's testimony as credible, and rejected portions of defendant's testimony as not credible. Based upon her credibility determinations, the court found that at 1:30 a.m. on August 31, 2014, defendant travelled to plaintiff's home in part to deliver a gift for plaintiff's son, but could have left the gift at plaintiff's place of employment or with the owner of plaintiff's home. The court also found that defendant travelled to plaintiff's home for the purpose of seeing plaintiff and that he tried to move the air conditioner from plaintiff's bedroom window in an attempt to enter plaintiff's bedroom.

The court found that defendant attempted to break into plaintiff's home at 1:30 a.m. knowing that she was not at work and was either home sleeping or was there with someone else. The court concluded there was no legitimate purpose for defendant's attempted entry into plaintiff's home. The court rejected as not credible defendant's testimony that he went to the home only to drop off the gift, and found that "the true reason for him to be at the house was to see her. Was to get to her. Even though he was told that she did not want to see him."

Based on the evidence presented, the judge found that defendant committed the predicate act of harassment under subsection (a) of N.J.S.A. 2C:33-4(a), and that a FRO was necessary to protect plaintiff from future acts of domestic violence. On October 24, 2014, the court entered a FRO. This appeal followed.

II.

This court's role in reviewing a trial court's findings following a non-jury trial is limited. We are bound by a trial court's factual findings that are "supported by adequate, substantial, credible evidence" in the record, and we defer to the court's credibility determinations. Gnall v. Gnall, 222 N.J. 414, 428 (2015) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Factual findings will be upheld unless they "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., 65 N.J. 474, 484 (1974)). However, we review a trial court's legal determinations de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The PDVA provides that a final restraining order may be issued only if the court finds that the plaintiff established by a preponderance of the evidence that the defendant committed an act of domestic violence. N.J.S.A. 2C:25-29(a); J.D. v. M.D.F., 207 N.J. 458, 474 (2011). "Domestic violence" is defined in N.J.S.A. 2C:25-19(a) to mean "the occurrence of one or more of" certain enumerated acts, including harassment under N.J.S.A. 2C:33-4.

In her complaint, plaintiff alleged that defendant committed the predicate act of harassment under N.J.S.A. 2C:33-4. At the conclusion of the hearing, however, the court limited its consideration of plaintiff's claim to a determination of whether defendant committed the predicate act of harassment under subsection (a) of N.J.S.A. 2C:33-4. N.J.S.A. 2C:33-4(a) provides that a person is guilty of harassment if he, "with purpose to harass another, . . . [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."

The following elements must be proven to establish a violation of N.J.S.A. 2C:33-4(a)

(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.

[State v. Hoffman, 149 N.J. 564, 576 (1997).]

"Annoyance or alarm" has been interpreted to mean "to disturb, irritate, or bother." J.D., supra, 207 N.J. at 477 (quoting Hoffman, supra, 149 N.J. at 580).

Defendant first argues that the trial court erred by finding that he committed the predicate act of harassment under N.J.S.A. 2C:33-4(a) because he did not have purpose to annoy or alarm plaintiff. Our analysis of defendant's argument is made difficult because in its determination of plaintiff's claim under N.J.S.A. 2C:33-4(a) the court did not identify the "communication" which it concluded defendant made with purpose to annoy or alarm plaintiff.

A communication is defined as "any form of communication made by any means, including, but not limited to, any verbal or written communication, . . . or any other means of transmitting voice or data and communications made by sign or gesture." N.J.S.A. 2C:1-14(q). The evidence reflects that during defendant's presence at plaintiff's home on August 31, 2014, the singular communication made by defendant was his statement, "it's me." The statement was made in response to a question from plaintiff. We therefore consider whether there was sufficient credible evidence supporting a conclusion that defendant made the communication with a purpose to harass plaintiff.

A single communication constitutes a violation of N.J.S.A. 2C:33-4(a) "as long as defendant's purpose in making it, or causing it to be made by another, was to harass and as long as it was made in a manner likely to cause annoyance or alarm to the intended recipient." J.D., supra, 207 N.J. at 477. "A finding of a purpose to harass may be inferred from the evidence presented. Common sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577 (citations omitted).

We are convinced the evidence does not support a determination that defendant's statement "it's me," was made for the purpose of harassing plaintiff. The statement was made after plaintiff observed defendant outside of her window and in response to plaintiff's query as to what defendant was doing. We are not persuaded that the statement, made under those circumstances, was "uttered with the specific intention of harassing the listener." E.M.B. v. R.F.B., 419 N.J. Super. 177, 182 (App. Div. 2011) (quoting State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996)). We are therefore convinced that the court erred in finding that defendant made a communication for the purpose of harassing plaintiff under N.J.S.A. 2C:33-4(a).

We are also convinced the court erred by considering plaintiff's claim solely under subsection (a) of N.J.S.A. 2C:33-4 because the complaint was not limited to an alleged violation of that subsection of the statute. In making its findings of fact, the court did not identify any communication made by defendant upon which a proper determination that defendant violated N.J.S.A. 2C:33-4(a) could be based. The court instead made findings of fact regarding defendant's conduct, including his appearance at plaintiff's home in the early morning hours and his movement of the air conditioner for the purpose of making an unauthorized entry into her home knowing that she was in bed alone or with someone else. Having made those findings of fact, the court failed to consider if defendant committed the predicate act of harassment under N.J.S.A. 2C:33-4(c).

Subsection (c) has different elements and requires different proofs than those required to establish a violation of N.J.S.A. 2C:33-4(a). J.D., supra, 207 N.J. at 477. A violation of N.J.S.A. 2C:33-4(c) "requires proof of a course of conduct. That may consist of conduct that is alarming or it may be a series of repeated acts if done with the purpose 'to alarm or seriously annoy' the intended victim." Id. at 478 (quoting N.J.S.A. 2C:33-4(c)). "'[S]erious' annoyance or alarm . . . means 'to weary, worry, trouble or offend.'" Ibid. (quoting Hoffman, supra, 149 N.J. at 581).

Because the court incorrectly limited its analysis of plaintiff's complaint to a determination of whether defendant violated N.J.S.A. 2C:33-4(a), it failed to decide if plaintiff proved that defendant committed the predicate act of harassment under N.J.S.A. 2C:33-4(c).1 We are therefore constrained to remand the matter for the court to consider plaintiff's claim that defendant committed the predicate act of harassment under N.J.S.A. 2C:33-4(c).

Our remand renders it unnecessary to consider defendant's argument that there was insufficient evidence supporting the court's finding that there was a need for a FRO to protect plaintiff from "immediate danger or further acts of domestic violence." Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006) (citing N.J.S.A. 2C:25-29(b)). The court shall consider that issue, and make the necessary findings of fact and conclusions of law, only if it first determines defendant committed the predicate act of harassment under N.J.S.A. 2C:33-4(c).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 There was no evidence that would support a finding that defendant violated subsection (b) of N.J.S.A. 2C:33-4.