Arguments are not domestic violence
E.D.
v.
P.D., DOCKET NO. A-0692-09T3
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
_______________________________________________
Submitted December 1, 2010 - Decided
Before Judges Fisher and Simonelli.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Somerset County, Docket No. FV-18-0243-10.
Copeland, Shimalla, Wechsler & Lepp,
attorneys for appellant (Amy Wechsler, of
counsel; Tam Abitante, on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant appeals from a final restraining order (FRO)
entered against him and in favor of his ex-wife, pursuant to the
Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17
to -35. Because the predicate acts were not alarming or
seriously annoying but akin to what we have described as
"ordinary domestic contretemps," Corrente v. Corrente, 281 N.J.
December 13, 2010
2 A-0692-09T3
Super. 243, 250 (App. Div. 1995), because the judge did not find
defendant acted with the purpose to harass, and because the
judge did not find restraints were necessary to protect
plaintiff from immediate danger or to prevent further abuse, we
reverse.
The trial consisted only of the testimony of the parties,
who represented themselves. Although he did not specifically
enumerate the acts of domestic violence found to have occurred,
we discern from the judge's credibility findings that he found
all the acts alleged by plaintiff to have occurred as plaintiff
described them; accordingly, we will assume the judge found the
following facts, which we take from plaintiff's testimony:
-- on July 24, 2009, defendant called
plaintiff "repeated[ly]";
-- on July 25 and 26, 2009, defendant
made "several" telephone calls to plaintiff
while she was at work; she told him to send
an e-mail, but he "continued to call,
refused to send an e-mail, [and] was yelling
about" whether she had made payments
necessary for their children to play soccer
and engage in cheerleading; during these
telephone calls, defendant was "very
aggressive and hostile";
-- on August 5, 2009, plaintiff was
standing outside a yoga studio when
defendant "stopped his car, rolled down his
window and yelled . . . [']get your ass home
and take care of your kids[']";
-- on August 11, 2009, defendant
telephoned plaintiff at work again to
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complain about the soccer and cheerleading
fees; according to plaintiff, "the phone
call lasted a couple of minutes and I was
trying to be business-like, as I was
standing in my office and I said to him,
[']can you please slow down?['] He said
[']no, I won't slow down. If I slow down, I
might get nice.['] And the phone call ended
[with defendant] saying, 'get it done,
bitch,' and he hung up";
-- on August 12, 2009, plaintiff
answered their daughter's cellphone; defendant
was on the line and "insult[ed] and
harass[ed]" plaintiff about her "financial
history, [her inability] to pay bills";
-- later on August 12, 2009, while
returning home from yoga class, plaintiff's
vehicle passed defendant's; he "slowed down,
. . . stared at me, put up his middle finger
and glared, just a crazed look on his face."
Based on these implicit findings, the judge entered an FRO.
Defendant appealed, raising the following arguments for our
consideration:
I. THERE EXISTS INSUFFICIENT CREDIBLE EVIDENCE
IN THE RECORD TO SUSTAIN THE FINDING
THAT APPELLANT COMMITTED AN ACT OF DOMESTIC
VIOLENCE AGAINST RESPONDENT.
A. THE TRIAL COURT FAILED TO MAKE
A SPECIFIC FINDING AS TO WHAT WAS
DONE TO CONSTITUTE A PREDICATE ACT
OF DOMESTIC VIOLENCE.
B. EVEN IF THE TRIAL COURT HAD
MADE A FINDING THAT THE APPELLANT
COMMITTED HARASSMENT, IT FAILED TO
MAKE A SPECIFIC FINDING OF INTENT
TO HARASS.
4 A-0692-09T3
C. THE TRIAL COURT ERRONEOUSLY
FOUND THAT THERE WAS A HISTORY OF
DOMESTIC VIOLENCE.
II. THE TRIAL COURT DID NOT MAKE THE REQUIRED
DETERMINATION THAT A FINAL RESTRAINING
ORDER WAS NECESSARY TO PROTECT RESPONDENT
FROM FUTURE ACTS OF DOMESTIC VIOLENCE.
III. THE TRIAL COURT ERRED BY FAILING TO
FULLY CONSIDER WHETHER RESPONDENT WAS USING
DOMESTIC VIOLENCE COMPLAINT TO GAIN AN
ADVANTAGE IN THE PENDING FM AND DYFS
MATTERS.
IV. THE CONDUCT OF THE PROCEEDINGS DEPRIVED
THE APPELLANT OF HIS RIGHT TO A FULL AND
FAIR HEARING.
V. THE CUMULATIVE EFFECT OF THE ERRORS
MANDATE A REVERSAL OF THE ENTRY OF THE FINAL
RESTRAINING ORDER.
Because we conclude (a) the judge did not find defendant acted
with the purpose to harass, (b) the predicate acts were not of
sufficient significance, and (c) the judge failed to find an FRO
was necessary to prevent an immediate danger or further abuse,
the FRO must be reversed without our needing to reach
defendant's other arguments.
A
To obtain an FRO pursuant to the Act, a plaintiff must
first prove by a preponderance of the evidence that the
defendant committed one of the predicate acts referred to in
N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A.
5 A-0692-09T3
2C:33-4, as conduct constituting domestic violence. See Silver
v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Here, we
discern from the judge's oral decision that he viewed
plaintiff's allegations as fitting either subsection (a)1 or (c)2
of N.J.S.A. 2C:33-4.3 Harassment as defined in either subsection
requires proof that defendant acted "with purpose to harass."
Certainly, an harassment claim does not require a statement
from the defendant that he or she acted with an intent to harass
the plaintiff. "A finding of a purpose to harass may be
inferred from the evidence presented," which may be informed by
1N.J.S.A. 2C:33-4(a) declares that harassment consists of the
making or causing to be made, "with purpose to harass another,"
"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."
2N.J.S.A. 2C:33-4(c) declares that harassment consists of the
engaging, "with purpose to harass another," "in any other course
of alarming conduct or of repeatedly committed acts with purpose
to alarm or seriously annoy such other person."
3The judge's citation to the predicate acts in question here
combined both subsections (a) and (c); that is, the judge
stated:
In looking under the complaint that's been
filed, it's [N.J.S.A.] 2C:33-4, harassment,
a person commits a petty disorderly offense
if with the purpose of harassment, he makes
or causes to be made communications in an
offensive language or in any matter likely
to cause annoyance or alarm.
The judge did not thereafter determine which part or parts of
the statute were violated here.
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"[c]ommon sense and experience." State v. Hoffman, 149 N.J.
564, 577 (1997). Here, the judge made no finding that defendant
acted with this requisite purpose, nor may defendant's words and
conduct be viewed as implicitly embodying a purpose to harass.
Accordingly, in the absence of this "integral" finding,
Corrente, supra, 281 N.J. Super. at 249, the judge's
determination that defendant committed a predicate act cannot
stand and the FRO must be reversed.
B
Even when viewed expansively, we cannot conclude from the
judge's findings that defendant engaged in any communications or
conduct that rose to the level of what the Legislature intended
as "domestic violence." For example, in Corrente, the defendant
threatened "drastic measure[s]," and later disconnected the
plaintiff's telephone service; we held that communication and
conduct could not be "characterized as alarming or seriously
annoying." Id. at 249. In another case, we drew the same
conclusion where the defendant said to the plaintiff, "I'll bury
you," Peranio v. Peranio, 280 N.J. Super. 47, 55-56 (App. Div.
1995). And, where the defendant surreptitiously removed the
plaintiff's belongings from their apartment and engaged in one
occasion of shouting and door slamming, we likewise found no
course of alarming conduct sufficient to constitute domestic
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violence. Grant v. Wright, 222 N.J. Super. 191, 196 (App.
Div.), certif. denied, 111 N.J. 562 (1988). See also Kamen v.
Egan, 322 N.J. Super. 222, 228 (App. Div. 1999) (holding that a
single act of trespass, unaccompanied by violence or a threat of
violence, was insufficient to justify issuance of an FRO).
Assessing the judge's opinion in the light most favorable
to plaintiff, the evidence suggested only that defendant made
multiple telephone calls to plaintiff about the payment of fees
for the children's extracurricular activities, berated plaintiff
and called her a "bitch," and made angry gestures and faces from
a distance. Even had the judge found defendant spoke and acted
with the purpose to harass -- which he did not -- these
circumstances still failed to meet the standard necessary for
entry of an FRO.
As then Judge (now Justice) Long stated for this court in
Corrente, this type of conduct -- particularly during the course
of matrimonial litigation, as here -- "was plainly never
contemplated by the Legislature when it addressed the serious
social problem of domestic violence." 281 N.J. Super. at 250.
Instead, "the invocation of the domestic violence law" in this
case, like Corrente, "trivialize[s] the plight of true victims
of domestic violence and misuse[s] the legislative vehicle which
was developed to protect them." Ibid.; see also Peranio, supra,
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280 N.J. Super. at 56-57. In short, "[t]he domestic violence
law was intended to address matters of consequence, not ordinary
domestic contretemps such as this." Corrente, supra, 281 N.J.
Super. at 250. We find those statements equally applicable
here.4
C
The FRO must also be reversed because the judge did not
find restraints were necessary "to protect the victim from an
immediate danger or to prevent further abuse." Silver, supra,
387 N.J. Super. at 127; see also Kamen, supra, 322 N.J. Super.
at 228. As explained by Judge Fall in Silver, supra, 387 N.J.
Super. at 126-27, the finding of a predicate act satisfies only
the first step in a two-step process. Because "the Legislature
4The record is very murky as to whether there was a prior history
of domestic violence. Plaintiff asserted "[t]here's a long
prior history . . . going back to 1997 of threats and
harassment, interfering with my work" but she only provided
specifics related to her unsuccessful attempt to obtain an FRO
five years earlier. We are mindful that defendant acknowledged
"there's been a long history of reported domestic violence [that
started] back in 1997," but his unspecific comments seemed to
suggest that plaintiff's earlier claims, which were found
without merit, were not dissimilar from those asserted here.
Moreover, defendant testified and was not contradicted that
after the earlier domestic violence action was dismissed, the
parties continued to reside together, even after entry of a
judgment of divorce. In any event, the judge made only one
reference to this testimony -- "I've heard a litany of
complaints that go back to 1997" -- and did not find that there
was a prior history of domestic violence.
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did not intend that the commission of one of the enumerated
predicate acts of domestic violence automatically mandates the
entry of a domestic violence retraining order," plaintiff was
obligated to prove and the judge was required to find that
restraints were necessary to "protect the victim from an
immediate danger or to prevent further abuse." Ibid. Although
there are certain acts of domestic violence that may reveal such
a need without a judge's express finding, when the claimed
predicate act consists of harassment or other types of
nonviolent conduct, the judge is required to provide a
principled analysis of why a restraining order is necessary to
protect the victim from danger or further abuse.
Absent an expressed holding, or other findings from which
we might discern such an implicit determination, we must
conclude that plaintiff failed to prove the need for an FRO even
if the proofs permitted a finding that defendant committed the
predicate act of harassment.
Reversed.
