C.R.C. v. F.J.C

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                                NOT FOR PUBLICATION WITHOUT THE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-0248-20

C.R.C., 1

          Plaintiff-Respondent,

v.

F.J.C.,

     Defendant-Appellant.
_______________________

                   Submitted May 12, 2021 – Decided June 28, 2021

                   Before Judges Alvarez and Sumners.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Gloucester County,
                   Docket No. FV-08-0274-21.

                   John C. Iannelli, attorney for appellant.

                   C.R.C., respondent pro se.

PER CURIAM



1
   We use initials to protect the confidentiality of the participants in these
proceedings. R. 1:38-3(d).
      Defendant appeals from a final restraining order (FRO) entered in favor

of plaintiff, his estranged wife, pursuant to the Prevention of Domestic Violence

Act (PDVA),  N.J.S.A. 2C:25-17 to -35. Defendant argues plaintiff failed to

present sufficient proof to warrant a finding that his conduct constituted

harassment within the meaning of  N.J.S.A. 2C:33-4. We agree and reverse.

      In a domestic violence case, we accord substantial deference to the family

court's findings, which "are binding on appeal when supported by adequate,

substantial, credible evidence." Cesare v. Cesare,  154 N.J. 394, 411-12 (1998)

(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,  65 N.J. 474, 484 (1974)). We

accord that deference especially when much of the evidence is testimonial and

implicates credibility determinations. Id. at 412. We do not disturb the court's

factual 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." Ibid. (quoting

Rova Farms,  65 N.J. at 484).

      When determining whether to grant an FRO pursuant to the PDVA, the

trial court must make two determinations. Silver v. Silver,  387 N.J. Super. 112,

125-27 (App. Div. 2006). Initially, we address whether the first Silver prong

was satisfied, which is "whether the plaintiff has proven, by a preponderance of


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the credible evidence, that one or more of the predicate acts set forth in  N.J.S.A.

2C:25-19(a) has occurred." Id. at 125.

      At trial, conducted via Zoom due to COVID-19, plaintiff alleged that the

predicate act of harassment occurred. Harassment is defined in  N.J.S.A. 2C:33-

4, which provides in relevant part, that

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

            a. Makes, 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;

               ....

            c.     Engages in any other course of alarming conduct
            or of repeatedly committed acts with purpose to alarm
            or seriously annoy such other person.

      Plaintiff testified that amid the separation from defendant she found a

letter from him on her car windshield. She felt the letter "alarming," because it

stated that: (1) when she attempted to get additional custody time with her

daughter from her divorced husband, a different court acknowledged that she

and defendant had a two-year stable marriage; (2) if they did not divorce, they

could save legal fees and have money for her daughter's college expenses; and




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(3) "neither one of us [will] win – I swear [] I would give my life just to have

you, and the opposite to lose you."

      Plaintiff maintained defendant violated the court's verbal order four days

prior to receipt of the letter, directing defendant to have "no contact" with her

or go to the marital property where only she and her daughter were living. The

court, however, acknowledged that no written domestic violence restraining

order was entered, stating that defendant was not to contact plaintiff although it

"made . . . clear to [defendant] that he shouldn't have any . . . contact with

plaintiff."

      Plaintiff testified that on another day, she came home to find the cable

television and internet service to her home, which was in defendant's name,

terminated by him without notification. In addition, she claimed a vehicle that

her mother bought from defendant but remained titled in his name was removed

from her home by defendant because he was the only person who had a key to

the vehicle.

      After plaintiff testified and defendant choose not to testify, the court

issued an FRO. In its oral decision, the court stated:

               [Plaintiff's] testimony sounds like harassment.

                      I note for the record that . . . this [c]ourt extended
               itself the last time this matter was heard in an attempt

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to try to resolve the situation without the necessity of
going to the extreme of a [d]omestic [v]iolence
[r]estraining [o]rder.

      I . . . thought I had made it clear to [defendant]
that he was not to go back. . . . And I thought I had
made it clear to him that he was to have no contact with
[plaintiff].

       Now, her testimony obviously does not relate
back to the original TRO and I . . . thought I had made
it clear to [defendant] that he shouldn't have any . . .
contact.

       ....

[W]ith respect to harassment[,] I'm . . . satisfied taking
. . . in total, the . . . contact and the effect of the letter,
the removal of the vehicle[,] [t]he turning off of the
. . . [i]nternet without any notice.

       ....

       The . . . bottom line is [plaintiff] doesn't want to
have any contact. She didn't want to be bothered by
him anymore. She was nervous out in the matrimonial
arena.

       ....

       Now, when we talk in terms of . . . characterizing
the relationship, I'm more than satisfied that if you
characterize the relationship, well, there was only
[d]omestic [v]iolence [r]estraining [o]rder filed early.
He's simply not going to give it up. In my mind that's
. . . harassment.



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      On this record, we conclude that there was insufficient evidence that

plaintiff was harassed because defendant acted with a purpose to harass that

included "a communication . . . likely to cause annoyance or alarm" or " alarming

conduct . . . with purpose to alarm or seriously annoy."  N.J.S.A. 2C:33-4(a),

(c). There must be proof that a defendant's conscious object was to "harass,"

that is, "annoy," "torment," "wear out," or "exhaust." State v. Castagna,  387 N.J. Super. 598, 607 (App. Div. 2006) (quoting Webster's II New College

Dictionary 504 (1995)). Our Supreme Court has emphasized the care that a trial

court must exercise to distinguish between the ordinary disputes and

disagreements between persons in a past or current domestic relationship, and

those acts that cross the line into domestic violence. J.D. v. M.D.F.,  207 N.J.
 458, 475-76 (2011). A plaintiff's assertion of feeling harassed is not sufficient

to prove purpose to harass. Id. at 484. As the Court held, a "victim's subjective

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

Id. at 487.

      In J.D., the Court reversed entry of a restraining order where the trial court

had failed to find a purpose to harass. Id. at 488. The defendant passed by

plaintiff's home in the early morning hours to document her cohabitation with

another man, which the defendant intended to use to secure custody of the


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parties' children. Id. at 467-69. Similarly, in L.M.F. v. J.A.F, Jr.,  421 N.J.

Super. 523, 525, 530-31, 533 (App. Div. 2011), we reversed a finding of

harassment where the trial court failed to find that a defendant had the purpose

to harass, although he repeatedly sent text messages to his former wife to obtain

information about their daughter's academic performance.

      In its oral decision, the court stated plaintiff's testimony "sounds like

harassment," but failed to make a finding of a purpose to harass. Reviewing

defendant's letter, we are persuaded that his sole attempt was to seek

reconciliation by stressing his stable relationship with and commitment to

plaintiff. Defendant did not threaten plaintiff or her daughter. His termination

of the cable and internet service and his apparent taking of the vehicle falls

within the scope of "ordinary domestic contretemps." See J.D.,  207 N.J. at 475

(quoting Corrente v. Corrente,  281 N.J. Super. 243, 249-50 (App. Div. 1995)

(stating that a court must "[d]raw[] 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[]'"));

see also Peranio v. Peranio,  280 N.J. Super. 47, 55 (App. Div. 1995) (finding

that regardless of defendant's purpose, the statement "I'll bury you ," standing

alone, "would not have satisfied the definition of harassment . . . unless it was


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manifested by a course or repeated acts of alarming conduct"). Cancellation of

the cable and internet service cancellation is similar to the situation in Corrente,

where the defendant first called the plaintiff's job and threatened "drastic

measures" if she did not send him money for bills, and then disconnected her

home phone line.  281 N.J. Super. at 246-47, 250. We concluded that although

plaintiff felt "alarmed" by defendant's behavior, there was not an intent to harass

nor could his behavior "be characterized as alarming or seriously annoying." Id.

at 249.

      With respect to the court's verbal order made at a proceeding prior to the

issuance of a temporary restraining order that defendant was to have no contact

with plaintiff, there is nothing in the record indicating what the court meant.

Therefore, we cannot conclude it was proven that defendant's his conduct

violated a court order and was evidence of harassment.

      Because we are convinced that there was insufficient credible evidence to

support a finding of a predicate act of domestic violence, we need not address

the second Silver prong, which requires the court to engage in the separate

inquiry regarding the need for restraints to prevent further abuse. See Silver,

 387 N.J. Super. at 126-27. Yet, assuming the court's findings were sufficient to

establish the harassment, its findings as to the need for restraints is insufficient.


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      It is well established that the commission of one of the predicate acts of

domestic violence does not, on its own, "automatically . . . warrant the issuance

of a domestic violence [restraining] order." Corrente,  281 N.J. Super. at 248.

Although that determination "is most often perfunctory and self-evident, 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." Silver,  387 N.J.

Super. at 127.

      Plaintiff did not testify that she feared defendant, felt in danger of

immediate harm, or anything to that effect. The court's mere statement that

defendant's "not going to give it up," which could refer to defendant's desire to

reconcile with plaintiff, fails to establish plaintiff needed a restraining order to

curtail harassing behavior.

      Reversed and remanded. We do not retain jurisdiction.




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