Theft and calling mom senile fool not grounds for DV
E.M.B. v R.F.B.
DOCKET NO. A-1155-09T1
________________________________________________________________
Submitted November 3, 2010 - Decided
Before Judges Skillman, Parrillo and
Espinosa.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden
County, Docket No. FV-04-708-10.
R.F.B., appellant pro se.
Respondent has not filed a brief.
The opinion of the court was delivered by
ESPINOSA, J.A.D.
Defendant appeals from a final domestic violence
restraining order (FRO) entered against him that was based on
harassment. For the reasons that follow, we reverse.
APPROVED FOR PUBLICATION
April 19, 2011
APPELLATE DIVISION
April 19, 2011
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A temporary restraining order was issued against defendant
on August 18, 2009. When defendant could not be served with the
order because plaintiff had no knowledge of his whereabouts, an
indefinite restraining order was issued on August 27, 2009.
A FRO hearing was held on September 17, 2009. Defendant
did not appear. At the outset, the court stated that defendant
had been served by telephone with notice to be present and that
it was satisfied defendant was voluntarily absent from the
proceedings.1 The evidence provided by plaintiff, defendant's
88-year-old mother, can be summarized as follows:
Defendant, 56 years old, resided with his mother in
Somerdale. She filed a domestic violence complaint against him
on August 18, 2009. Her stated reasons for doing so were that
defendant had stolen her keys to the car, cell phone, bank book,
money, and some jewelry. Plaintiff stated that he removed the
items from her bedroom. She knew he stole the items because
those were her things and she was the only other person who
lived there. She testified that defendant thought she should
not have the keys to the car; that he wouldn't say why but would
just take them and had done so twice before. She also testified
1 The record is insufficient for us to determine whether service
was adequate and whether defendant was voluntarily absent. In
light of our reversal of the FRO for other reasons, we need not
address these issues.
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that, at one time, defendant had taken her wallet and then
mailed it back to her, without the money that had been inside.
She described his behavior as "controlling." She stated he had
also called her a "senile old bitch." When the court asked if
that "would annoy" her, she replied, "It hurt me . . . [be]cause
I was . . . I felt that I was good to him. He had no reason to
talk that way to me." She testified that defendant had also
stolen little things from her in the past and on one occasion
locked her out of the house.
The trial court found that defendant committed an act of
domestic violence upon plaintiff, i.e., harassment. Finding
plaintiff to be credible, the court made the following findings
based upon her testimony:
I find that when the plaintiff testifies
that her son is controlling, . . . that he
takes personal property that belongs to her
from her.
. . . .
I find that the acts as they are described
are harassing acts. I find that plaintiff's
testimony as she drops her head and . . .
when she states with great embarrassment, my
son says to me you're a senile old bitch, I
find that she's sincere as she weeps and she
says that that hurts her, so I find that
when the defendant does these things that it
is his purpose to annoy or to alarm the
plaintiff.
. . . .
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I find that the past history she's given
this Court, I find that to be credible when
she states that the defendant had locked her
out of her home. She had to use a neighbor
to let her back in her home. . . .
I find that she's credible when she says
that the defendant has taken things from her
in the past. It appears to the Court that
the defendant is underestimating his 88 year
old mother when he believes that because of
her age she may not know where her
belongings are or she may not know exactly
what it is that she's doing, and I find that
my observations of her and her responses to
the questions, that she's pretty sharp and
she knows exactly what's happening.
The court found the predicate act of harassment had been
proven but did not specify what section of N.J.S.A. 2C:33-4 was
violated. Concluding that a restraining order was "necessary to
protect the [plaintiff] from any future acts of domestic
violence[,]" see Silver v. Silver, 387 N.J. Super. 112 (App.
Div. 2006), the court entered a FRO. In this appeal, defendant
challenges those findings and the entry of the FRO.
In reviewing a decision of a family court, we "defer to the
factual findings of the trial court," New Jersey Div. of Youth
and Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in
recognition of the "family courts' special jurisdiction and
expertise in family matters . . . ." New Jersey Div. of Youth
and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare
v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial
court's conclusions are so 'clearly mistaken' or 'wide of the
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mark'" that we will intervene and make our own findings "to
ensure that there is not a denial of justice." E.P., supra, 196
N.J. at 104.
Before a court can conclude that domestic violence occurred
and enter a restraining order, it must find that one of the
enumerated predicate acts under N.J.S.A. 2C:25-19 was committed.
See Silver, supra, 387 N.J. Super. at 125. Here, plaintiff's
stated reasons for seeking the FRO were her son's thefts.
However, theft is not among the predicate acts enumerated in
N.J.S.A. 2C:25-19.
The court found that defendant's conduct constituted
harassment, an enumerated act under N.J.S.A. 2C:25-19. A person
is guilty of harassment
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;
or
* * *
c. Engages 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 (emphasis added).]
Under either section of this statute, a defendant must act with
the purpose to harass. Subsection (a) targets specific modes of
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speech, including the use of "offensively coarse language," and
requires that the manner of speech be "likely to cause annoyance
or alarm." Subsection (c) requires a course of repeated
conduct, motivated by a higher degree of purpose, "to alarm or
seriously annoy." Ibid. (Emphasis added).
Under the facts as found by the court here, the only
communication that could arguably support a finding of
harassment under subsection (a) occurred when defendant called
his mother a "senile old bitch." As the court found, this was
understandably upsetting to plaintiff. However, we do not
measure the effect of the speech upon the victim; we look to the
purpose of the actor in making the communication. State v.
L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied,
143 N.J. 325 (1996).
The harassment statute was not enacted to "proscribe mere
speech, use of language, or other forms of expression." Ibid.;
see also State v. Fin. American Corp., 182 N.J. Super. 33, 36-38
(App. Div. 1981). Because the First Amendment to the United
States Constitution "permits regulation of conduct, not mere
expression[,]" the speech punished by the harassment statute
"must be uttered with the specific intention of harassing the
listener." L.C., supra, 283 N.J. Super. at 450. A restraining
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order based on harassment cannot be entered "if based on a mere
expression of opinion utilizing offensive language." Ibid.
The sparse record is devoid of the context for defendant's
comment. Although the court concluded that defendant intended
to harass, its observation reveals a different appraisal, that
defendant's actions were based upon an erroneous perception of
his mother's competence: "the defendant is underestimating his
88 year old mother when he believes that because of her age she
may not know where her belongings are or she may not know
exactly what it is that she's doing . . . ." (emphasis added).
The evidence therefore fails to prove by a preponderance of the
evidence that defendant called his mother a "senile old bitch"
with the intent to annoy her, in violation of subsection (a).
We next turn to considering the sufficiency of the evidence
to support a conclusion that defendant violated N.J.S.A. 2C:33-
4(c). Even if the thefts described by plaintiff provided the
requisite course of conduct, a violation of this subsection
requires proof of a purpose "to alarm or seriously annoy."
Plaintiff provided no testimony to support a finding that
defendant was so motivated. The record does not provide
evidence that defendant acted with any purpose in stealing from
his mother other than to appropriate her property for his own
use.
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When determining whether the harassment statute has been
violated, "courts must consider the totality of the
circumstances," H.E.S. v. J.C.S., 175 N.J. 309, 326 (2003);
Cesare, supra, 154 N.J. at 404, in light of the parties'
history. Silver, supra, 387 N.J. Super. at 125. There was no
evidence of any prior harassing behavior by defendant. As
noted, evidence of thefts does not constitute evidence of a
prior history of domestic violence in the absence of proof that
the thefts were committed with the requisite intent to harass.
Similarly, such prior history is not provided by the statement
that defendant locked plaintiff out of the house because the
facts and context of that incident are not included in the
record. The evidence therefore failed to support a conclusion
that defendant engaged in a course of conduct with the intent to
alarm or seriously annoy his mother.
Reversed.
