M.A. V. D.M.A. A-0081-10T1 May 12, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0081-10T1

M.A.,

Plaintiff-Respondent/

Cross-Appellant,

v.

D.M.A.,

Defendant-Appellant/

Cross-Respondent.

Argued March 7, 2011 – Decided May 12, 2011

Before Judges A.A. Rodríguez and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-001343-10.

Marcy M. McMann argued the cause for appellant/cross-respondent (Stephen S. Weinstein, P.C., attorney; Ms. McMann, on the brief.)

Clifford J. Weininger argued the cause for respondent/cross-appellant (Mr. Weininger, attorney; Joseph J. Fritzen, on the brief).

PER CURIAM

Defendant appeals from the July 30, 2010 domestic violence final restraining order (FRO) issued against him in favor of plaintiff. Plaintiff cross-appeals from the judge's denial of her request for counsel fees and costs. We reverse the FRO, thereby rendering the cross-appeal moot.

At the time of the FRO hearing, plaintiff was sixteen and defendant was eighteen-and-a-half years old. They had been in a "boyfriend/girlfriend relationship" for "about a year." Plaintiff testified that she would frequently accompany defendant when he pawned jewelry that he told her he had stolen from his grandmother. She was aware that defendant "had a drug problem" and knew that he spent the money on Oxycontin, as she had seen him "high" on that drug "many times." At some point, plaintiff became aware that defendant was stealing jewelry from her home and pawning it.

On June 5, 2010, defendant was at plaintiff's home "just hanging out." When defendant attempted to pull plaintiff's dog out from under a desk, the dog bit him twice. Plaintiff "immediately grabbed [her] dog . . . and got him away from everything because [she] didn't know what was going on." Defendant was upset and told plaintiff and her mother that he "want[ed] to kill [the] f-ing dog."

Plaintiff spent that night at defendant's house; she came home briefly the following morning and saw her dog, who seemed "fine again running around the house." Plaintiff then left with her mother to spend the day at her grandmother's home. Her mother dropped plaintiff at defendant's house around 8:30 p.m.; her mother went home and then called plaintiff "hysterically screaming and crying that the dog [wa]s dead." Defendant then drove plaintiff home. About two weeks later, defendant admitted that he "beat" plaintiff's dog to death.

Plaintiff did not tell anyone about defendant killing her dog at that time because she "believed that these were just issues [defendant] had . . . that he needed to deal with and he needed help with them. And . . . [she] cared so much about him at the time."

On or about June 18, 2010, the parties were in an attic at defendant's house smoking a cigarette. Plaintiff "believe[d] [defendant] was high at the time." Defendant

lit the lighter and he held it lit and he said ["]you're going to remember me forever.["] [Plaintiff] had no idea that he was going to do that. [She] thought he was just saying that as in general boyfriend/girlfriend conversation.

He [held] the lighter lit for maybe a minute and . . . the metal [got] really hot. He let go of it and he jabbed it into [her] leg and [she] still ha[s] a scar[] two months later.

. . . .

[She] was really shocked at first. And [she] kind of . . . playfully . . . slapped him. But . . . after [she] showed [her] Mom and after . . . reporting everything to the [p]olice [she] realized that [it] is really dangerous to mess around with this kind of thing . . . .

On or about June 25, 2010, plaintiff was called into police headquarters to identify certain jewelry that defendant had been charged with stealing. At some point, plaintiff learned that defendant had stolen other property belonging to her parents, and she decided that she "couldn't take it anymore [sic]." On June 28, 2010, plaintiff obtained a temporary restraining order (TRO) against defendant.

Plaintiff stated that "looking back on [her] relationship with [defendant] . . . [she] ha[s] a lot of fear[.]" Because she had reported to the police that defendant stole jewelry from her home, she felt that "he's going to blame this all on [her]" and "come after [her] one day."

On cross-examination, plaintiff acknowledged that she had a close relationship with defendant's mother and communicated with her via Facebook. On June 27, 2010, plaintiff posted a message on Facebook to defendant's mother stating that the only reason she was pursuing a restraining order was because her parents were forcing her to do so. A few minutes later, plaintiff sent defendant's mother the following message:

"I'm thinking just to avoid any more s—t with my Mom that I’ll do what she wants me to do. And then like the next day or two I'll get the restraining order dropped . . . . If I can go in and drop it they won't even be notified and then everything will be okay with my Mom, and I’ll be able to see [defendant]."

She also told defendant's mother, "If I walk out of that court room saying he's not a threat to me, I'll never stop hearing it from them about how I'm basically not a member of the family any more . . . ."

In the early morning of June 28, the day plaintiff obtained her TRO, she sent a message to defendant's mother to "say good luck [to defendant] and [she] hope[s] for the best[,]" because he was "going to some interview." On June 29, plaintiff sent a message that she still loved defendant. However, she denied that she still loved him at the time of trial.

At the conclusion of plaintiff's testimony, defendant moved to dismiss the TRO, arguing that she had not established any predicate acts constituting domestic violence under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). Defendant also argued that plaintiff had failed to demonstrate a current need for the protection of a final restraining order under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). The judge denied the motion. Defendant then rested without calling any witnesses.

In his decision rendered from the bench, the judge noted at the outset that this "was a difficult case to analyze." He stated that the theft of the jewelry, the killing of plaintiff's dog and the burn with the cigarette lighter "suggest a very unhealthy situation" and that plaintiff's position that she "wants a restraining order" because she has "come to a new understanding of herself and her situation all make perfect sense." The judge "ha[d] a strong sense that somewhere, somehow there should be a way to end this unhealthy relationship."

The judge described defendant's killing of the dog as an "inappropriate and mean thing . . . to avenge himself against the dog. . . . [T]he larger portion of the motivation was that the dog bit him therefore the dog is going to get it and did." He then characterized the killing as "about as clear an act of domestic violence as there could be."

With respect to the theft of the jewelry, the judge noted that "there are many circumstances in which something like that can be done as an attack on the petitioner." He added that "the way to understand" the jewelry theft was, as plaintiff had testified, "for the purpose of funding a drug habit."

The judge opined that plaintiff "acquiesced" in the burning of her leg, which made it "harder to see that as an assault, although not impossible." He noted that "even after all of these events . . . [p]laintiff had occasion to say I still love . . . him."

The judge stated: "All that makes it difficult to accept these either individually or cumulatively as a basis for the relief." He noted, however, that plaintiff testified she has had a "change of heart" and is now afraid of defendant, and found her fear "objectively reasonable."

Regarding defendant's "intent," the judge noted that "the greater weight of the evidence is that the majority of the motivation was to accomplish those other ends I talked about drug habit [sic] and avenge [sic] against the dog." He further noted that there "seem[ed] to be an element of at least indifference to the [e]ffect on [plaintiff] and [her] family[,] [b]ut also . . . perhaps more than almost [sic] an element of control."

The judge then characterized the "thefts from the house and the killing of the dog" as "a course of alarming conduct[,]" noting that N.J.S.A.2C:33-4(c) "talks about a course of alarming conduct with a purpose to alarm or seriously annoy such other person." "[L]ooking at all the circumstances[,]" the judge found it "fair to conclude that . . . an element that was going on was a controlling and harassing element."

The judge concluded that he was "inclined to issue a restraining order under [h]arassment[,]" adding: "I reserve the right to entertain a motion for reconsideration . . . . My sense is this is an unusual case. I am announcing a judgment that I think is sensible under the law and under a broad common sense."

Plaintiff's counsel then asked for attorney's fees and punitive damages for the killing of the dog. The judge denied both requests.

On appeal, defendant contends that (1) he did not commit an act of domestic violence; and (2) a restraining order is not necessary to protect plaintiff. We concur with defendant on both issues.

Cognizant of our limited and deferential scope of review, Cesare v. Cesare, 154 N.J. 394, 413 (1998), we are nonetheless not satisfied that sufficient credible evidence exists in the record to support the judge's decision to issue an FRO. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Where, as here, we determine that "the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" we will intervene "to ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted).

Here, none of the three acts at issue — the theft of jewelry, the killing of plaintiff's dog, and the burning of plaintiff's leg with the cigarette lighter — was ever established as having been done with the "purpose to alarm or seriously annoy" plaintiff. N.J.S.A. 2C:33-4(c). The judge himself noted that the theft of the jewelry was to support defendant's drug habit; the killing of the dog was to "avenge" the dog having bitten defendant; and plaintiff "acquiesced" in the cigarette lighter incident.

Plaintiff testified that she was afraid of defendant because she had told the police he was the one who stole the jewelry; she stated that, despite the fact that they were engaged in a loving relationship during the time the three pertinent acts occurred, she now fears him because she has come to realize that he is controlling.

However, plaintiff never testified that she believed defendant committed any of the acts with the purpose "to alarm or seriously annoy" her. The theft of the jewelry upset her because defendant had lied to her about whose jewelry he had stolen and because her parents' possessions were involved. The death of her dog upset her greatly, but did not cause her to fear defendant as a result. The cigarette lighter incident took place during what she apparently considered a romantic exchange when defendant said he wanted her to remember him forever.

While these incidents may, as the judge found, have been signs of "an unhealthy situation," the record does not support the conclusion that any of them was committed with the requisite purpose sufficient to establish harassment under the Act. Where, as here, the judge found it "difficult to accept" those acts "either individually or cumulatively as a basis for . . . relief[,]" his ensuing cursory conclusion that they constituted "a course of alarming conduct" warranting entry of an FRO cannot reasonably said to be supported by the record.

N.J.S.A. 2C:25-29(a) provides that at an FRO hearing, "the standard for proving the allegations in the complaint shall be by a preponderance of the evidence." Here the judge did not articulate any standard of proof for his findings, let alone the statutorily required standard.

"Integral to a finding of harassment . . . is the establishment of the purpose to harass, which is set forth in the statute itself." Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995).

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. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.

[N.J.S.A. 2C:2-2(b)(1).]

To find that "defendant's purpose was to alarm plaintiff requires proof of anxiety or distress. The serious annoyance requirement 'under subsection (c) means to weary, worry, trouble, or offend.'" H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) (quoting State v. Hoffman, 149 N.J. 564, 581 (1997)). Nothing in this record evinces defendant's "conscious object" to "alarm or seriously annoy" plaintiff. N.J.S.A. 2C:33-4(c). No evidence satisfied the required proof elements. Nor, as noted, did the judge find by a preponderance of the evidence that they were met.

Having determined that the judge erred in concluding that defendant's conduct constituted the predicate offense of harassment under the Act and, therefore, the FRO must be reversed on that basis, we need not address defendant's second contention. We will note, however, that the judge failed to follow the two-step process required by Silver, namely:

First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred. . . .

. . . .

The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim. . . .

. . . .

. . . [T]he guiding standard is whether a restraining order is necessary . . . to protect the victim from an immediate danger or to prevent further abuse.

[Silver, supra, 387 N.J. Super. at 125-27.]

The judge never addressed the "second inquiry[.]" Id. at 126.

Reversed on the appeal; the cross-appeal is moot.