E.T v. J.B

RECORD IMPOUNDED

                         NOT FOR PUBLICATION WITHOUT THE
                       APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0873-16T3

E.T.,

              Plaintiff-Respondent,

v.

J.B.,

          Defendant-Appellant.
_________________________________

              Argued December 21, 2017 – Decided January 16, 2018

              Before    Judges    Simonelli,     Haas    and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Camden County,
              Docket No. FV-04-0872-17.

              D. Ryan Nussey argued the cause for appellant
              (Klineburger and Nussey, attorneys; D. Ryan
              Nussey and Carolyn G. Labin, on the briefs).

              Alexandra A. Zeiger argued the cause for
              respondent (Rutgers Domestic Violence Clinic,
              Rutgers Law, attorneys; Victoria Chase, on the
              brief).

PER CURIAM

        Defendant    J.B.    appeals    from   the   October    11,   2016   final

restraining order (FRO) entered against him and in favor of
plaintiff E.T., pursuant to the Prevention of Domestic Violence

Act (PDVA), 
N.J.S.A. 2C:25-17 to -35, based on harassment, 
N.J.S.A.

2C:33-4(c).    We reverse.

      The parties met online sometime prior to November 2015.

Plaintiff was a resident of the Philippines, while defendant was

a United States citizen.           Defendant visited plaintiff just two

times in the Philippines, and then asked her to move to the United

States and live with him in November 2015.                Before the end of

December, plaintiff told defendant she was pregnant, and the

parties married on December 30, 2015.1

      By   January   2016,   the    parties'    nascent    relationship   was

already in jeopardy because they simply did not get along with

each other and began to argue.2            According to plaintiff, one day

in either January or February, defendant came home from work and

told her to pack her bags because he was going to take her to the

airport so she could return to the Philippines.            The parties then

drove to an airport, turned around, and came back home.           Plaintiff


1
    The parties' child was born in August 2016.
2
  Defendant testified that he paid to have plaintiff's application
for a Green Card processed, and he assisted in filing the
appropriate paperwork.    It is not clear from the record when
plaintiff received her Green Card, but the parties agree that
plaintiff received authorization to work in the United States
sometime in March 2016. However, plaintiff did not work during
the parties' brief marriage because she was pregnant for the entire
period prior to their separation in September 2016.

                                       2                             A-0873-16T3
also testified that, sometime in June 2016, she called the police

because, during another argument, defendant threatened to take her

to the airport.

     On September 8, 2016, defendant asked plaintiff to feed the

baby. She refused and defendant told her to leave the home because

he was going to file for a divorce.     He objected when plaintiff

stated she would take the parties' child with her.        Plaintiff

called a friend, who lived about a block away, and arranged to

move in there. She then called the police for assistance in taking

the child with her.    After assessing the situation, the police

told the parties that plaintiff could take the child.

     The next day, plaintiff returned by herself to the parties'

home.   She testified that she wanted to talk to defendant and pick

up some of her personal items.   Defendant refused to let her into

the house, and plaintiff used her key to enter.    Plaintiff was in

the house for approximately ten minutes.    Defendant decided to use

his cellphone to make a video recording of plaintiff so she could

not later claim he acted inappropriately.

     On the video, which lasts approximately five minutes and

forty seconds, plaintiff can be seen going from room to room

retrieving clothes, towels, cotton balls, soap, and other items.

Defendant took the video from outside the rooms plaintiff entered.

At one point, defendant asked plaintiff to return the house keys,

                                 3                           A-0873-16T3
but she refused.    Defendant made only three additional statements

to plaintiff during the video.3     In response to these statements,

plaintiff smiled at defendant, held up the items she was taking,

and commented on some of them.      As plaintiff left the house, she

turned   toward   defendant's   cellphone   camera,   smiled,   and   then

walked down the street to the neighbor's home where she was

staying.

     On September 13, 2016, defendant went to the neighbor's house

and asked if he could see the baby.         The neighbor went to speak

to plaintiff, came back to the front door, and told defendant that

plaintiff had refused to let him visit the child.        Defendant then

went home.    The next day, plaintiff filed for, and obtained, a

temporary restraining order against defendant.        When asked why she

was seeking a FRO, plaintiff testified she was "afraid of what

[defendant] can do to me because I don't have any family here.           I

don't have any friends here.     I don't have anything here.      I just

arrived in America."4



3
   These statements were: (1) "Everything she's taking is bought
with my money. She's stealing my money"; (2) "Everything she's
taking was purchased with my money. She's taking all the things
purchased with my money"; and (3) "Let this be the record that
she's taking all the items purchased with my money."
4
   A few days after the issuance of the TRO, defendant filed a
complaint for divorce.  The parties were divorced four months
later in January 2017.

                                   4                             A-0873-16T3
     Following oral argument, the trial judge granted plaintiff a

FRO against defendant.   The judge did not find that any of the

incidents between the parties in September 2016 constituted a

predicate act of domestic violence.   Instead, the judge went back

to what he called "the airport incidents" in January and June

2016, and found that defendant engaged in a "course of conduct"

on these two occasions with a purpose to harass plaintiff within

the intendment of 
N.J.S.A. 2C:33-4(c).   The judge explained that

because plaintiff was an immigrant, there was "a real power

imbalance" between the parties and the "symbolic gesture of driving

her to the airport, threatening to take her to the airport, in

this relationship, in this context, that represents purpose to

harass."5

     The judge next found that a restraining order was necessary

because defendant showed a "lack of empathy and kind of domineering

style" by making a video recording of plaintiff's return to the




5
  The judge acknowledged that he had not reviewed immigration law
to determine whether plaintiff's status in the United States was
ever in jeopardy.    As previously noted, plaintiff had a work
permit, may have already had a Green Card, was married to a United
States citizen, and was the mother of a baby born in this country.



                                 5                          A-0873-16T3
home on September 9, 2016.6           As further support for his ruling,

the judge stated:

            [Plaintiff's] not afraid of any physical
            violence. But the fear comes out of the power
            imbalance, the financial isolation, the legal
            isolation, the fear now not just that her
            immigration status is in jeopardy, but she's
            going to be separated from her child who is a
            [United States] citizen.

This appeal followed.

     On appeal, defendant argues that the judge mistakenly found

that he committed the predicate act of harassment and that a FRO

was necessary to protect plaintiff against future acts of domestic

violence.    We agree.

     Our    review   of   a   trial   judge's     fact-finding   function    is

limited.    Cesare v. Cesare, 
154 N.J. 394, 411 (1998).            A judge's

fact-finding is "binding on appeal when supported by adequate,

substantial, credible evidence."            Id. at 411-12 (citing Rova Farms

Resort, Inc. v. Investors Ins. Co., 
65 N.J. 474, 484 (1974)).                 A

judge's purely legal decisions, however, are subject to our plenary

review.     Crespo v. Crespo, 
395 N.J. Super. 190, 194 (App. Div.

2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,


140 N.J. 366, 378 (1995)).



6
  At the same time, however, the judge recognized that many parties
make videos of this nature while in the midst of a break-up, and
stated "that's an understandable course of conduct."

                                        6                             A-0873-16T3
     In adjudicating a domestic violence case, the trial judge has

a "two-fold" task.      Silver v. Silver, 
387 N.J. Super. 112, 125

(App. Div. 2006).       The judge must first determine whether the

plaintiff has proven, by a preponderance of the evidence, that the

defendant   committed   one   of   the   predicate    acts   referenced    in


N.J.S.A.    2C:25-19(a),   which   incorporates      harassment,   
N.J.S.A.

2C:33-4, as conduct constituting domestic violence.            Id. at 125-

26. The judge must construe any such acts in light of the parties'

history to better "understand the totality of the circumstances

of the relationship and to fully evaluate the reasonableness of

the victim's continued fear of the perpetrator."               Kanaszka v.

Kunen, 
313 N.J. Super. 600, 607 (App. Div. 1998); 
N.J.S.A. 2C:25-

29(a)(1).

     If a predicate offense is proven, the judge must then assess

"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."     J.D. v. M.D.F., 
207 N.J. 458, 475-76 (2011) (quoting

Silver, 
387 N.J. Super. at 126-27).        Whether a restraining order

should be issued depends on the seriousness of the predicate

offense, on "the previous history of domestic violence between the

plaintiff and defendant including previous threats, harassment[,]

and physical abuse," and on "whether immediate danger to the person

                                     7                              A-0873-16T3
or property is present."     Corrente v. Corrente, 
281 N.J. Super.
 243, 248 (App. Div. l995) (citing 
N.J.S.A. 2C:25-29(a)); see also

Cesare, 
154 N.J. at 402.

       We first examine whether the record supports the trial judge's

conclusion that plaintiff demonstrated by a preponderance of the

evidence that defendant committed a predicate act of domestic

violence by twice threatening to take her to the airport so she

could return to the Philippines and, on one of these occasions,

driving her to an airport and then immediately returning home with

her.    Here, the judge viewed plaintiff's allegations as falling

under 
N.J.S.A. 2C:33-4(c), which provides that harassment occurs

when "a person . . . with purpose to harass another . . . [e]ngages

in any other course of alarming conduct or of repeatedly committed

acts with purpose to alarm or seriously annoy such other person."

       Proof of a purpose to harass is an essential element of


N.J.S.A. 2C:33-4.    See L.D. v. W.D., 
327 N.J. Super. 1, 5 (App.

Div. 1999).    "A person acts purposely with respect to the nature

of his conduct or a result thereof if it is his conscious object

to engage in conduct of that nature or to cause such a result."

State v. Hoffman, 
149 N.J. 564, 577 (1997) (quoting 
N.J.S.A. 2C:2-

2(b)(1)).    There must be proof that a defendant's conscious object

was to "harass," that is, "annoy," "torment," "wear out," and

"exhaust."     State v. Castagna, 
387 N.J. Super. 598, 607 (App.

                                  8                           A-0873-16T3
Div.) (quoting Webster's II New College Dictionary 504 (1995),

certif. denied, 
188 N.J. 577 (2006).

     Merely knowing that someone would be annoyed, as opposed to

having a conscious objective to annoy, is insufficient to prove a

purpose to harass.    See State v. Fuchs, 
230 N.J. Super. 420, 428

(App. Div. 1989).    Moreover, a "victim's subjective reaction alone

will not suffice; there must be evidence of the improper purpose."

J.D., 
207 N.J. at 487 (citing State v. Washington, 
319 N.J. Super.
 681, 691-92 (Law Div. 1998)).

     When deciding the issues of intent and effect, we are mindful

of the fact that

          harassment 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.    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.

          [Id. at 475 (citation omitted).]

"[T]he decision about whether a particular series of events rises

to the level of harassment or not is fact-sensitive."    Id. at 484.

     Very recently, our Supreme Court provided additional guidance

on what conduct constitutes harassment under 
N.J.S.A. 2C:33-4(c).


                                  9                          A-0873-16T3
In State v. Burkert, ___ N.J. ___ (2017), the Court made clear

that 
N.J.S.A. 2C:33-4(c) "was never intended to protect against

the common stresses, shocks, and insults of life that come from

exposure to crude remarks and offensive expressions, teasing and

rumor mongering, and general inappropriate behavior.     The aim of

subsection (c) is not to enforce a code of civil behavior or proper

manners." (slip op. at 35-36).

     Instead, the Court held, as it did twenty years ago in

Hoffman, 
149 N.J. at 580-81, "[t]hat the primary thrust of 
N.J.S.A.

2C:33-4(c) is not to interdict speech, but rather conduct[.]"

Burkert, (slip op. at 19).    Therefore, the Court "construe[d] the

terms 'any other course of alarming conduct' and 'acts with purpose

to alarm or seriously annoy' as repeated communications directed

at a person that reasonably put that person in fear for his safety

or security or that intolerably interfere[d] with that person's

reasonable expectation of privacy."    Id. at 34-35.

     Applying   these   principles,     and   viewing   the    record

expansively, we cannot conclude from the judge's findings that

defendant engaged in a "course of alarming conduct" or acts that

rose to the level of what the Legislature intended as "domestic

violence" under the PDVA.    For example, in Corrente, the defendant

threatened "drastic measure[s]" during an argument with his wife

and later disconnected her telephone service.    Corrente, 281 N.J.

                                 10                           A-0873-16T
3 Super. at 244.      We held that this communication and conduct could

not be "characterized as alarming or seriously annoying."              Id. at

249.

       We   drew   the   same   conclusion   in   another   case   where   the

defendant repeatedly told his wife that he had no sexual feelings

for her, did not love her, and planned to divorce her.             Murray v.

Murray, 
267 N.J. Super. 406, 408, 410 (App. Div. 1993).                      We

likewise found no alarming or seriously annoying conduct where,

during an argument, the defendant said to the plaintiff, "I'll

bury you."     Peranio v. Peranio, 
280 N.J. Super. 47, 55-56 (App.

Div. 1995).

       In this case, defendant told plaintiff he was going to send

her to the Philippines during two of their arguments and, on one

of these occasions, drove her to an airport and then immediately

drove back home with her.          Defendant's statements, and his one

act, while obviously inappropriate and loutish, simply did not

constitute the type of "course of alarming conduct" necessary to

sustain the entry of a FRO. Defendant never threatened plaintiff's

safety, security, or privacy.         Burkert, (slip op. at 35).        While

plaintiff may have been sensitive about her status in the United

States, the evidence in the record shows that she had no objective

reason for concern given the fact that she was married to a citizen



                                     11                               A-0873-16T3
of the United States, had a child who was a citizen, and had, or

was about to obtain, Green Card status.

     Under these circumstances, we conclude that the domestic

contretemps that occurred between the parties during their short-

term marriage were insufficient to support the entry of a FRO.

However, even if this were not the case, the FRO would still have

to be reversed because the judge's findings do not support his

conclusion that the FRO was necessary to protect plaintiff "from

an immediate danger or to prevent further abuse."                Silver, 
387 N.J. Super. at 127.      As the judge acknowledged, defendant had

never harmed or threatened to harm plaintiff, and the two "airport

incidents" occurred months before plaintiff sought a TRO.

     The judge found that a FRO was needed because there was a

financial and "power imbalance" between the parties now that they

were separating.   However, while plaintiff had not yet secured a

job, she had authorization to work in the United States by the

time the parties separated in September 2016 and may have already

had her Green Card.      The judge also did not explain why the

issuance of a routine pendente lite support order in the pending

dissolution   action,   rather   than   a   FRO,   would   not    have   been

sufficient to address plaintiff's financial concerns.

     In addition, the parties had already separated, defendant had

filed his complaint for divorce, and they would be divorced just

                                  12                                 A-0873-16T3
four months later.    While they shared a child together, their

future contact would obviously be limited.     Although the judge

found that defendant showed a "lack of empathy" toward plaintiff,

it is now abundantly clear that the harassment statute, 
N.J.S.A.

2C:33-4(c), was never intended "to enforce a code of civil behavior

or proper manners."   Burkert, (slip op. at 36).   Thus, a FRO was

not needed in this case.

     Reversed.




                               13                           A-0873-16T3