DV reversed where court permitted testimony of acts not set forth in Complaint J.D. v. M.D.F.

DV reversed where court permitted testimony of acts not set forth in Complaint

J.D. v. M.D.F. (A-115-09; 065499)

7-28-11

In this domestic violence matter, the trial court failed to sufficiently articulate its findings and conclusions and the record contains insufficient evidence to sustain the determination to enter a Final Restraining Order. The matter was remanded to the trial court for a re-hearing to protect M.D.F.’s due process rights and to permit the trial court to evaluate the testimony and the evidence.

1. Under the criminal statute addressing harassment, N.J.S.A. 2C:33-4, subsection a. requires proof of a single communication that was made anonymously, at an extremely inconvenient hour, or in a coarse or offensive language, for the purpose to harass and in a manner likely to cause annoyance or alarm. Subsection c. requires proof of a course of alarming conduct or repeatedly committed acts with the purpose of alarming or seriously annoying the victim. Distinguishing between acts that constitute harassment for purposes of domestic violence and those that are ordinary domestic contretemps can be difficult. Such a determination may depend on the second inquiry required for complaints under the Act.

Upon a finding by a preponderance of the evidence of a commission of a predicate act, the second inquiry is whether a restraining order is necessary to protect the victim from immediate danger or to prevent further abuse. Concluding that a plaintiff has described acts that qualify as harassment and omitting this second inquiry opens the door to abuse of the Act’s purposes.

2. Due process requires that a party in a judicial hearing receive notice defining the issues and an opportunity to prepare. It forbids the trial court from converting a hearing on one act of domestic violence into a hearing on other acts that are not alleged in the complaint. Trial courts should use the allegations in the complaint to guide their questions, and avoid inducing plaintiffs to abandon that history in favor of new accusations.

Although the Act instructs courts to consider the parties’ history of domestic violence, if a trial court allows the history contained in the complaint to be expanded, it has permitted an amendment to the complaint and must proceed accordingly. Courts should liberally grant an adjournment that is based on an expansion of the facts that form the heart of the complaint. During the adjournment, courts can protect the plaintiff by continuing the temporary restraints. Here, defendant’s suggestion that he was unprepared to defend himself against the new allegations was sufficient to raise the due process question. Additionally, M.D.F. sought to demonstrate though his questioning of R.T. that he did not intend harassment because he never stopped his car and drove away as soon as he was detected. The trial court’s decision to deny M.D.F. the opportunity to cross-examine R.T. violated due process.

3. Not all offensive or bothersome behavior constitutes harassment. Here, the trial court did not identify which subsection of the harassment statute it was applying. The evidence is not sufficient to support a finding under subsection a. because merely being outside of the home in the morning hours is not harassment and J.D. was unaware he was outside until R.T. alerted her, after which he beat a hasty retreat.

With regard to subsection c., requiring a course of alarming conduct, the court did not articulate precise findings of fact and conclusions of law and did not explain what it was in the series of past incidents that led it to conclude that M.D.F.’s purpose when he engaged in late-night photography was to harass J.D. Although the trial court focused on one of the earlier incidents, it did not explain how that event demonstrated that M.D.F. acted with the purpose to harass J.D. when he went to take photographs. Although a purpose to harass can be inferred from a history between the parties, that finding must be supported by evidence that the actor’s conscious object was to alarm or annoy. The trial court also should have considered the implications that M.D.F. was preparing a motion for a custody change based on J.D.’s cohabitation, and that the motion in fact was filed within hours of the incident.

3. Finally, the record does not include the necessary analysis of the “second inquiry,” and thus lacks the required consideration of whether entry of restraints was necessary to protect the victim from harm. Overlooking that important step in the analysis posed the risk of unfairness and error.

L.A.V.H., v. R.J.V.H.,DOCKET NO. A-6292-09T4 Domestic Violence

L.A.V.H.,

v.

R.J.V.H.,DOCKET NO. A-6292-09T4

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

_____________________________

Argued April 4, 2011 – Decided August 10, 2011

Before Judges C.L. Miniman and LeWinn.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Bergen County, FV-02-000247-11.

Michael R. Mildner argued the cause for

appellant (Lesnevich & Marzano-Lesnevich,

LLC, attorneys; Madeline Marzano-Lesnevich,

of counsel; Mr. Mildner and Jeffrey B. Hodge

on the briefs).

Peter A. Jeffer argued the cause for

respondent.

PER CURIAM

Defendant appeals from the August 17, 2010 domestic

violence final restraining order (FRO) entered against him in

favor of plaintiff, his former wife. We affirm.

2 A-6292-09T4

We summarize the pertinent evidence from the hearing on

plaintiff's FRO application on August 17, 2010. The parties

were divorced in July 2009. Around the time of the divorce,

plaintiff became involved in a relationship with Matthew DiLeo.

When defendant learned of this he installed a GPS tracking

device on an automobile that he owned and plaintiff used.

Plaintiff obtained a temporary restraining order (TRO)

against defendant immediately following the divorce. She

described the circumstances leading to that TRO as follows: when

defendant would come to pick up the parties' daughter he would

make "comments about who was coming and going from [her] home,

things that were in [her] garbage . . . . He knew everything

about everything [she] was doing at all times."

In October 2009, the parties entered into a consent order

under their matrimonial docket imposing civil restraints;

plaintiff then dismissed her TRO. Among the restraints to which

defendant consented was the prohibition against his "stalking,

following or threatening to harm, stalk or follow . . .

[p]laintiff."

DiLeo testified that plaintiff has been his "girlfriend"

for about one year. On May 21, 2010, while driving his car

DiLeo hit a pothole, heard the sound of something falling off

his vehicle and "saw a black box bouncing in the road . . . ."

3 A-6292-09T4

He opened the box and discovered "a battery pack and some

sort of transmitting device . . . ." He asked a friend who is a

police officer to look at it because he believed it to be a GPS

tracking device. Shortly after this incident, DiLeo found a

second GPS device attached to the bottom of his car. His friend

advised him to file a complaint with the local police

department, which he did.

DiLeo stated that plaintiff had been in his vehicle on at

least two occasions, and her daughter on one occasion, during

May 2010. Plaintiff had also occasionally driven his car prior

to May 2010.

Plaintiff testified that she did not file her TRO until

July 18, 2010, after learning of the GPS devices found on

DiLeo's car, because she first filed "a couple of . . . police

reports . . . in regards to [her] safety" but then felt it was

in her "best interest to get another restraining order." She

testified that she felt threatened by defendant; she believed he

had violated their consent order by "us[ing her] . . . boyfriend

to stalk and harass [her]." She remains "concerned for [her]

safety when [defendant] knows [her] whereabouts at every given

time."

In her TRO plaintiff described a prior history of domestic

violence, including defendant putting the GPS device on the car

4 A-6292-09T4

she used, telling plaintiff she is "his property"; screaming at

her and blocking her exit; and reporting her every action,

including what was in her garbage and who was in her home.

Armand Biagini, a licensed private investigator, testified

that in January or February 2010, defendant retained his

services and paid him a $3000 fee in cash. Biagini was not

permitted to testify as to the specific services he performed

for defendant. He acknowledged telling defendant that he was

familiar with GPS tracking devices.

Plaintiff called defendant to testify as a hostile witness.

He testified that he asked Biagini to find out if DiLeo was

"living at [his] house."1 He denied, however, that he discussed

"the manner in which he would conduct that investigation[.]" He

further denied discussing the use of GPS devices on DiLeo's car.

Defendant testified that he did not know when Biagini started

his investigation or "[h]ow [he was] supposed to investigate

. . . ." Defendant gave Biagini no "instructions"; Biagini said

"he knew what to do."

Sometime around the end of May, Biagini called defendant to

say that "DiLeo was at the house and he lost the tracker."

1 Pursuant to the property settlement agreement (PSA)

incorporated in the parties' divorce judgment, plaintiff is

permitted to reside in the marital residence until the parties'

child graduates from high school, and defendant agreed to pay

the mortgage until the house is sold, in lieu of alimony.

5 A-6292-09T4

Defendant "thought" Biagini was referring to "a tracking device,

unless it was something else." That was the first and only

report he received from Biagini. Defendant acknowledged that,

prior to the divorce, he put a GPS device on the car plaintiff

was then driving. He stated that he hired Biagini because he

did not want to harass plaintiff or DiLeo.

At the conclusion of defendant's testimony, he moved to

dismiss "based on [the] failure to prove that an act of domestic

violence occurred." Defendant also moved to dismiss the

stalking charge, claiming that to find that such an act had

occurred would require "a very over-broad application of the

statute." The judge denied both motions.

Defendant was then questioned by his attorney. He noted

that the parties' PSA provided that if plaintiff cohabited with

an unrelated male, the marital residence would then be sold,

under conditions set forth therein, resulting in defendant

receiving sixty-five percent of the net equity in the residence.

He suspected plaintiff was cohabiting with DiLeo and hired a

private investigator because he "wanted a professional" whose

"word . . . would hold up in court . . . ."

Defendant stated that his only purpose in hiring Biagini

was to learn if plaintiff was cohabiting with DiLeo. He asked

Biagini to "investigate" only DiLeo, not plaintiff.

6 A-6292-09T4

Defendant stated that when he previously put a GPS tracking

device on the car plaintiff was using, the parties were in

marriage counseling at the time and he "wanted to trust her and

get the trust back, so [he] put the tracking device in and found

her with [DiLeo] . . . ." The marriage counselor "suggested"

that he remove the GPS device because the parties had to "trust

each other," so he removed it.

Regarding plaintiff's claims of prior domestic violence

history in her TRO, defendant denied "pick[ing] through her

garbage." He described the earlier incident as one in which

they were yelling at each other, but he did not "interfere with

. . . or threaten" her. He acknowledged telling plaintiff that

she was his "property."

Defendant claimed that he is aware of what goes on in

plaintiff's life because the parties "live in a small community,

. . . know each other's friends, and . . . have a child that

tells [them] everything." When asked by the judge if he felt

that "by causing an investigator to follow . . . [DiLeo] that

would upset [plaintiff,]" defendant responded: "Yeah, probably."

He acknowledged that Biagini came up with no proof of

cohabitation; he also agreed that DiLeo was allowed to "visit"

and that plaintiff was entitled to have "a relationship" with

another man and that would not constitute cohabitation.

7 A-6292-09T4

The judge rendered a decision from the bench. She made the

following findings: (1) defendant hired a private investigator

who installed two GPS tracking devices on DiLeo's car and

"defendant was aware of that"; (2) after the divorce, defendant

"engage[d] in stalking and harassing behavior [toward] . . .

plaintiff; (3) defendant's testimony that he waited five months

to hear from Biagini was "difficult to believe"; (4) Biagini's

testimony that he discussed tracking devices with defendant was

credible, and defendant's denial of such a discussion was not;

(5) defendant "sought to continue to keep tabs on his wife and

what she was doing"; (6) defendant "attempted to remove himself

somewhat . . . by having devices installed on [DiLeo's] car

instead of on [plaintiff's] car and by having it done by an

investigator rather than by himself"; and (7) defendant's

description of the telephone conversation with Biagini, in which

the investigator said DiLeo found "the tracker[,]" led the judge

to believe that defendant was "aware" that Biagini was "doing

the work [defendant] requested him to do through the use of a

tracking device."

The judge found that defendant's conduct met the statutory

definition of stalking, N.J.S.A. 2C:12-10, but did not

constitute harassment under N.J.S.A. 2C:33-4, because defendant

acted "covertly with the intention of not having . . . plaintiff

8 A-6292-09T4

find out about it." Finally, the judge found that "[i]n light

of the history between the parties and . . . specifically [the

prior] stalking behavior . . ., the entry of a final restraining

order is necessary for the protection of the plaintiff and to

prevent . . . defendant from continuing to act in that way."

The judge thereupon entered the FRO, which included DiLeo as a

protected third party, and stated to defendant: "It's time to

leave your ex[-]wife alone, sir."

On appeal, defendant contends that: (1) because his conduct

was "directed" at DiLeo and not at plaintiff, the judge erred in

finding that he committed the predicate act of stalking to

warrant an FRO in plaintiff's favor; (2) plaintiff "failed to

demonstrate the requisite fear or emotional distress" required

to establish stalking; and (3) the judge erred in determining an

FRO was necessary to protect plaintiff from further acts of

domestic violence.

Having reviewed these contentions in light of the record

and the controlling legal principles, we are satisfied they are

without merit. We affirm substantially for the reasons stated

by Judge Mary Thurber in her thorough decision rendered from the

bench on August 17, 2010, which, we are satisfied, is based on

findings that are adequately supported by the evidence. R.

2:11-3(e)(1)(A). We add only the following comments.

9 A-6292-09T4

Our standard of review in these matters is deferential, in

consideration of the particular expertise of Family Part judges.

Cesare v. Cesare, 154 N.J. 394, 412 (1998). Particularly where,

as here, credibility determinations are critical to the judge's

findings, we will not substitute our judgment unless we are

convinced the record does not support those determinations.

Ibid. Where we review a trial judge's conclusions of law,

however, our review is de novo; we owe no deference to such

conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

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

N.J.S.A. 2C:12-10(b) defines "stalking" as "purposely or

knowingly engag[ing] in a course of conduct directed at a

specific person that would cause a reasonable person to fear for

h[er] safety or the safety of a third person or suffer other

emotional distress." The definition of "course of conduct"

includes "repeatedly maintaining a visual or physical proximity

to a person; directly, indirectly, or through third parties, by

any action, method, device, or means, following, monitoring

observing, surveilling . . . a person[.]" N.J.S.A. 2C:12-

10(a)(1).

By defendant's own testimony, his intention in hiring

Biagini was to determine if plaintiff was "cohabiting" within

the meaning of the parties' PSA because he stood to benefit

10 A-6292-09T4

financially if that were the case. Moreover, defendant's own

use of a GPS tracking device to stalk plaintiff and learn her

whereabouts is undisputed. This fact led the judge to discredit

defendant's professed ignorance of the means Biagini used to

accomplish the mission for which defendant retained him.

Plaintiff clearly testified that she felt threatened by

defendant tracking DiLeo's movements. In light of the parties'

prior history, the judge properly found her testimony credible.

Defendant himself acknowledged, in response to a question from

the judge, that "causing an investigator to follow . . . DiLeo"

would "probably" be upsetting to plaintiff.

We are satisfied that defendant's conduct constituted the

predicate act of stalking, N.J.S.A. 2C:25-19(a). Through a

"third part[y]" and by use of a GPS tracking "device" defendant

"follow[ed], monitor[ed] . . . [and] surveill[ed]" DiLeo,

N.J.S.A. 2C:12-10(a)(1), for the purpose of learning information

about plaintiff's private life. As such, although the GPS

device was on DiLeo's car, defendant's "conduct" was clearly

"directed at" plaintiff. N.J.S.A. 2C:12-10(b). As noted,

plaintiff testified that this conduct caused her to "fear for

h[er] safety" and to "suffer . . . emotional distress." Ibid.

The judge's reasons for finding that defendant's conduct

did not constitute harassment lend further support to the basis

11 A-6292-09T4

for her determination that he did commit stalking. Because

defendant acted "covertly" and did not want plaintiff to "find

out about it[,]" the judge determined that defendant did not

have a purpose to annoy or alarm plaintiff, N.J.S.A. 2C:33-4(a).

The very nature of that "covert[]" and secretive conduct,

however, is consistent with the offense of stalking.

Defendant's last point is without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Suffice it to say, the judge specifically found that defendant's

history of using GPS devices, whether directly or indirectly, to

keep track of plaintiff's personal life, necessitated an FRO to

protect her from such conduct in the future. As the judge told

defendant, it is time for him to "leave [plaintiff] alone." We

are satisfied that the judge adequately complied with the twopronged

test set forth in Silver v. Silver, 387 N.J. Super. 112,

125-27 (App. Div. 2006).

Affirmed.

I.P.P. V. R.AP. A-5569-09T3 May 10, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5569-09T3

I.P.P., Plaintiff-Respondent, v. R.A.P., Defendant-Appellant.

May 10, 2011

Submitted March 28, 2011 - Decided May 10, 2011

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-1803-10.

Toni Ann Marcolini, attorney for appellant.

Jeney, Jeney & O'Connor, LLC, attorneys for respondent (Robert J. Jeney, Jr., on the brief).

PER CURIAM

Defendant R.P. appeals the Family Part's issuance of a Final Restraining Order ("FRO") against her in favor of plaintiff, I.P., after a trial conducted pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"). For the reasons that follow, we affirm.

At the time of the trial in June 2010, the parties were married but separated and living in separate dwellings in Elizabeth. They are the parents of a daughter, who was then age eleven and residing with defendant. The parties evidently have had a volatile relationship. Defendant, in fact, procured an FRO against plaintiff in September 2009 after he physically assaulted her.

The FRO in the present matter was granted after a trial at which both parties were represented by counsel. According to plaintiff's proofs, on May 15, 2010, defendant, accompanied by the parties' daughter, unexpectedly arrived at plaintiff's girlfriend's home, which is also located in Elizabeth. Defendant beckoned to plaintiff, who was then in the backyard, calling him an "a**hole." Plaintiff approached her. At that point defendant thrust upon him a document that was related to charges for their daughter's hearing aid. Defendant threatened plaintiff that he would go to jail if he did not pay for the item. Defendant cursed at plaintiff, calling him a "motherf**ker." She knocked a beer out of one of plaintiff's hands and a cell phone out of the other. As plaintiff described it, defendant then came up to his face, screaming and yelling. She stopped after others who were present started to gather around. Defendant then left the premises with the daughter, who, according to plaintiff, appeared frightened. Plaintiff called the police, and he thereafter filed an application for a restraining order.

Plaintiff's narrative of defendant's aggressive outburst was corroborated at trial by the testimony of his girlfriend and his girlfriend's sister, both of whom attested to being on the premises at the time. The girlfriend recounted that she saw defendant arrive at her house, beckon to plaintiff, "pitch[] a paper on him," and then knock the cell phone and the beer out of his hands. She also heard defendant scream and curse, although she was too far away to understand defendant's exact words. Similarly, the sister recalled observing defendant come in through a gate, give plaintiff a document, scream and curse at him, knock down the phone and the beer he was holding, and then depart with the child.

Plaintiff testified that he was concerned for his safety and well being after this episode. He stated that he felt harassed by defendant, who, he lamented, was continuing to feel free to speak to him face-to-face, despite the fact that she herself has a restraining order forbidding their contact.

By way of illustration, plaintiff cited to two prior incidents. According to plaintiff, defendant accosted him in October 2009 outside of the hospital where his girlfriend works, cursed at him, and grabbed his work badge out of his car. Plaintiff testified that the second prior incident occurred in April 2010, when defendant pulled up next to his car as he was dropping his girlfriend off at her home, and then spewed profanities towards him and the girlfriend. Plaintiff filed a written report of this second incident with the local police, but he apparently did not obtain a restraining order until the present case.

Defendant emphatically denied going to the house of plaintiff's girlfriend on May 15, 2010, or causing any disturbance there. She insisted that she was elsewhere during the time span between 6:00 and 6:30 p.m., when plaintiff and his witnesses estimated that she had appeared at the girlfriend's premises. In support of her claimed alibi, defendant presented testimony from a neighbor, who recalled conversing with her from about 5:30 to 6:15 p.m. that day, and from her mother, who testified that defendant and the daughter had arrived at the mother's workplace in Westfield at "around" 6:45 p.m. Defendant further presented a receipt showing that she had purchased gasoline in Elizabeth at 6:31 p.m.

Defendant also presented testimony from a friend who had accompanied her on the date of the October 2009 incident. The friend explained that defendant had needed to go to the hospital that day. The friend was surprised to see plaintiff standing on the corner by the hospital. The friend recalled plaintiff and defendant shouting at each other outside of the hospital. The friend also recalled asking plaintiff to go away, and that plaintiff complied with the request.

After sifting through the proofs, the trial judge concluded that plaintiff had established acts of domestic violence by defendant, and that he was entitled to protection under the Act. Assessing the credibility of the witnesses, the judge "absolutely believe[d]" that defendant had come to the girlfriend's house on May 15, despite her claimed alibi. The judge found it "totally credible" that defendant had gone into the girlfriend's backyard without being invited, that she had cursed at plaintiff, and that she had knocked both the cell phone and the beer out of his hands. As part of her credibility analysis, the judge commented negatively about the demeanor that defendant exhibited during the trial, which included cursing at plaintiff while in the courtroom.

The judge found that plaintiff and his witnesses had been mistaken in their approximations of the time that defendant had appeared at the premises, thereby making the attempted proofs of alibi unavailing. The judge also credited plaintiff's account of defendant's prior wrongful acts in October 2009 and in April 2010, specifically noting with regard to the latter incident that she found the girlfriend to be a credible witness.

Based upon these factual findings, the trial judge was, in her words, "absolutely" persuaded that "there is a need for a restraining order" against defendant. The judge consequently issued such an FRO, prohibiting defendant from contacting, harassing, stalking, or threatening to harm plaintiff or his girlfriend. In her bench comments, the judge urged defendant to obtain therapeutic counseling. The judge also expressed concern about the deleterious impact that the hostile behavior of the parties  both of whom are now subject to a restraining order  could have upon their daughter, urging them to avoid future conflict.

Defendant now appeals, contending that the trial court's factual finding that she engaged in domestic violence is not supported by the record, and that restraints were unnecessarily imposed upon her.

Our standard of review in this domestic violence matter is exceedingly circumscribed. In particular, we must defer to the trial judge's factual findings unless they are shown to be so "clearly mistaken" or "wide of the mark" that are not reasonably supported by the record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)); see C.M.F. v. R.G.F., 418 N.J. Super. 396, 401 (App. Div. 2011). We must accord considerable weight to the trial judge's findings of credibility, given that the judge is in a unique position to evaluate the demeanor of the parties and the other witnesses. See Cesare v. Cesare, 154 N.J. 394, 412 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). As the Supreme Court has emphasized, we owe special deference to the expertise of the Family Part in making often difficult judgments about the lives of families and children. See E.P., supra, 196 N.J. at 104;Cesare, supra, 154 N.J. at 413.

Applying that circumscribed review standard here, we affirm the trial court's findings, as they are supported by substantial credible evidence in the record. The trial judge provided ample reasons explaining why she rejected defendant's attempted alibi, given the approximated nature of the time lines posited by several of the witnesses.

Although the judge did not explicitly classify defendant's wrongful conduct as harassment, the proofs adduced at trial sufficed to prove that she engaged in such harassment, one of the predicate offenses that can support a finding of domestic violence and the issuance of an FRO. See N.J.S.A. 2C:25-19(a)(13). Harassment is defined in the Criminal Code to encompass conduct in which a defendant, "with purpose to harass another":

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;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; 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).]

Here, the proofs found credible by the trial judge adequately established that defendant struck or "offensively touched" plaintiff's hands, yelled profanities or "offensively coarse" words at him, and otherwise engaged in a course of conduct designed to alarm or seriously annoy him.

Defendant's manifest desire to harass plaintiff, who was dating another woman, is amply reflected by the proofs of her behavior, her demeanor at trial, and the surrounding circumstances. Her harassing conduct is not excused by plaintiff's own prior acts of domestic violence, nor by his alleged failure to pay his child's medical bill. The cases cited in defendant's brief on this issue generally involved weaker claims of harassing conduct, and those cases do not undermine the judgment issued here.¹

Affirmed.

1 Our recent published opinion in E.M.B. v. R.F.B., ___ N.J. Super. ___ (App. Div. Apr. 19, 2011), reversing an FRO based upon allegations of harassment, is not helpful to defendant here. In E.M.B., the sole conduct alleged to be harassment was the defendant calling the plaintiff, his mother, a "senile old bitch." Id., slip op. at 6. Unlike the instant case, the defendant inE.M.B. did not physically strike the plaintiff. There was no credible proof that he acted with a purpose to alarm or seriously annoy his mother, id. at 7, nor any evidence that he had harassed her in the past. Id. at 8.

A.B. V. L.S.M. A-0223-10T3 May 6, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0223-10T3

A.B., Plaintiff-Respondent, v. L.S.M., Defendant-Appellant.

Argued March 15, 2011 – Decided May 6, 2011

Before Judges Parrillo and Espinosa.

On appeal from Superior Court of New Jersey, Family Division, Hunterdon County, Docket No. FV-10-000138-11.

Kenneth W. Thomas argued the cause for appellant (Lanza & Lanza, LLP, attorneys; Mr. Thomas, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from the entry of a final restraining order (FRO) against him that was based upon harassment, N.J.S.A.2C:33-4(a) and (c). For the reasons that follow, we do not find the evidence sufficient to support a finding of harassment underN.J.S.A. 2C:33-4(a) but affirm the entry of the order based upon N.J.S.A. 2C:33-4(c).

The parties lived together for approximately four years and had two daughters together. At the time of the FRO hearing, their daughters, "Heidi"¹ and "Barbie," were three years and twenty-two months old, respectively. Plaintiff had two other children, "Brenda," ten, and "Oscar," fourteen, and defendant had a daughter, "Susie," fourteen.

At the FRO hearing, plaintiff testified about an incident that occurred on August 13, 2010. She stated that when defendant came to pick up the children for parenting time that day, he told her he wanted to talk to her; that "he really, really missed [her] and he wanted to hug and kiss [her.]" She told him that she was not interested and had "no desire to have him touch [her.]"

At approximately 9:00 p.m. that evening, plaintiff received a text message from defendant. He stated that the girls forgot a teddy bear and blanket. She sent a text message back, asking if he needed them and he replied, "yes." Plaintiff brought her friend, Lori Ann Mortarulo, with her to defendant's residence. She explained:

Because every time he comes to my house he wants to hug me and he wants to come close to me and talk in front of the girls. And I don't want to. I keep telling him I don't want to.

Plaintiff stated that when she went to the door to hand him the items, defendant told her that the children were already asleep, which led her to believe that the call regarding the teddy bear and blanket was merely a ruse to get her to come to his home. He grabbed hold of her to keep her from leaving. She told him to "please stop and to please leave [her] alone, that [she didn't] want to be touched."

Mortarulo testified that when plaintiff went to the door, defendant came outside and, instead of taking the teddy bear and blanket, he grabbed plaintiff's wrist. Plaintiff backed away and defendant moved in closer, giving her a bear hug. Mortarulo testified that plaintiff's hands went down to her side, stiff, and that when she returned to the car, plaintiff was shaky, pale, and upset.

Plaintiff applied for and obtained a temporary restraining order (TRO) on August 16, 2010. Defendant acknowledged service of the TRO on the same date.

At the FRO hearing, plaintiff also testified about incidents that occurred both before and after August 13.

Plaintiff testified that, on June 18, 2010, she returned home after picking up Oscar and his friend from school. Defendant was waiting, angry that she had picked up her son's friend and had not picked up his daughter. He called plaintiff a "bitch" and told her that she had ruined his daughter's birthday. Plaintiff admitted that she "may have" yelled and cursed at him as well. Defendant attempted to leave the driveway in plaintiff's car, but got a flat tire by driving over a bicycle and had to return to the driveway. When he put a jack under the car to change the tire, plaintiff told him to stop, that he had done enough damage for one day. She attempted to take the jack and he pushed her on her shoulders. When she tried to remove the jack a second time, he pushed her again. At this time, plaintiff threw Heidi's "sippy cup" at defendant, breaking his nose. Defendant left with Heidi, stating that he was going to dinner and shopping.

That evening, defendant told plaintiff that they had to talk. He offered her two choices - either he would leave or he was going to live in the basement. She replied that he should leave. Following this incident, each of the parties applied for temporary restraining orders that were subsequently dismissed.

On or about August 7, 2010, defendant went to plaintiff's home, unannounced, shortly after 9:00 pm, and knocked on her bathroom window. He said that he wanted to sit and talk with her. Plaintiff testified that she told him, "I didn't want him around me, I don't want him anywhere near me, I had enough of him and his daughter, and I wanted them to leave me alone." She stated that he sent her a text message on his way home in which he said he had no idea how much he had hurt her and promised to leave her alone. However, the incident that prompted plaintiff to seek this restraining order occurred just six days later.

On another occasion, she went to pick up the girls from defendant's home with her son, Oscar. Plaintiff testified that defendant was crouching down behind the girls, grinning at her. She stated that she did not recognize her daughter; that defendant cut the "three year old's hair from halfway down her back to her shoulders and he gave her bangs straight across. And he also cut [the] 22 month old daughter's hair straight across the front and when it was wet it wasn't straight." She asked him what he had done to their hair. Plaintiff testified that he grinned at her, looked at her son and said, "how do you live with that bitch[?]" Oscar testified and corroborated his mother's account.

When asked why defendant had cut the girls' hair, plaintiff testified that defendant knew she liked Heidi's hair as it was and she thought it was "to harass [her] to get [her] to yell or do something that [she's] not supposed to in front of the girls." She said defendant thought it was funny; he was grinning at her when she got there.

Plaintiff testified that defendant cut Heidi's hair again on the Thursday prior to the FRO hearing, a date three days after she obtained a TRO. On this occasion, defendant cut an inch from one side of Heidi's hair, but not from the other side, and also cut her bangs again. Plaintiff also testified that, as she was attempting to get her daughters to come with her, defendant told Heidi that he did not know when he would see her again "because mommy was being mean and mommy was keeping her away from him." These statements were made despite the fact that defendant had parenting time every Monday and Thursday and alternate weekends pursuant to a court order.

Plaintiff testified further that defendant had sent her nasty emails on a regular basis, calling her names. In one email, he stated he was glad her dog ran away and got killed by a car, that even her dog ran away to get away from her because she is so mean.

Defendant testified that he did not ask plaintiff to bring a teddy bear to his home on August 13. He said he texted plaintiff to tell her Heidi had a difficult time falling asleep because she did not have her teddy bear. When plaintiff offered to bring it to his home, he accepted the offer. He admitted hugging her and said that her reaction "was strange because normally she accepts hugs but in this particular case her arms were straight down . . . ." Defendant denied that he grabbed her wrist and that plaintiff said anything to him about the hug. His purpose in hugging her was not to harass her but to thank her for bringing the teddy bear.

Defendant admitted going to plaintiff's home unannounced and knocking on her bathroom window in early August. He stated that plaintiff came to the door, hugged him, and started crying; that they sat and talked for approximately one half hour before plaintiff started to get angry and he decided to leave. Defendant denied plaintiff ever told him not to touch her.

Although defendant testified that things were going along well between them in early August, he admitted that he sent plaintiff an email on or about August 4 in which he said that even her own dog risked her life to get the hell away from plaintiff. Defendant stated that he apologized the next day.

Defendant admitted cutting his daughters' hair as part of "a beauty makeover" because his daughter asked him to cut her hair. He acknowledged that plaintiff was very angry when she saw the haircuts, yelled extremely loudly and stated that he ruined their hair. Defendant denied cutting his daughter's hair a second time or telling his daughter that he did not know when he would see her again.

The court rejected defendant's denials and versions of events, finding plaintiff's testimony to be more credible. The court concluded that defendant had committed acts of harassment under N.J.S.A. 2C:33-4(a) and (c) and entered an FRO. In this appeal, defendant argues the FRO was entered erroneously because he did not harass plaintiff, specifically, that he did not act with the requisite purpose to harass.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court," N.J. 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 . . . ." N.J. 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 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.

N.J.S.A. 2C:33-4 states, in pertinent part:

[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.

[Emphasis added.]

Under either section of this statute, a defendant must act with the purpose to harass. Subsection (a) targets specific modes of speech, including the use of "offensively coarse language," and requires that the manner of speech be "likely to cause annoyance or alarm." The requisite purpose to harass is satisfied by a purpose "to disturb, irritate, or bother." State v. Hoffman,149 N.J 564, 580 (1997). Subsection (c) requires a course of repeated conduct, motivated by a higher degree of purpose, "to alarm or seriously annoy." See ibid.

N.J.S.A. 2C:33-4(a) criminalizes speech that invades one's privacy by "its anonymity, offensive coarseness, or extreme inconvenience" because it is "aimed, not at the content of the offending statements but rather at the manner in which they were communicated." Id. at 583-84 (quoting State v. Fin. Am. Corp., 182 N.J. Super. 33, 39-40 (App. Div. 1981)). There is no evidence that any of defendant's communications were sent anonymously, at extremely inconvenient hours, or "in any othermanner likely to cause annoyance or alarm." Therefore, under the facts as found by the court here, the only communications that could arguably support a finding of harassment under subsection (a) occurred when defendant referred to plaintiff as a "bitch" or used other "nasty names." The evidence reflects a tumultuous end to the parties' relationship in which coarse language is attributed to and admitted by each of them. Within the context of the parties' disintegrating relationship, we are satisfied that these comments did not constitute acts of harassment under N.J.S.A. 2C:33-4(a).

We next turn to consider the sufficiency of the evidence to support a finding of harassment under N.J.S.A. 2C:33-4(c). The evidence deemed credible by the trial court reflected that, at least as early as August 7, plaintiff told defendant that she did not want him near her and wanted to be left alone. Nonetheless, as the trial court found, defendant created a pretext for plaintiff to come to his house just days later to deliver a toy for a child already asleep and used the occasion to hug her and attempt to hold her against her will. He engaged in additional conduct plainly designed to seriously provoke plaintiff. Defendant falsely cast plaintiff as a "mean mommy" who would deprive the children of parenting time with him. He gave their daughters haircuts that, at best, were amateurish, and at worst, "ruined" their hair, knowing that plaintiff would be upset. In short, defendant used their daughters as pawns, willingly subjecting them to emotional upset, if not psychological abuse, and needlessly bad haircuts, with no apparent purpose other than to achieve the desired effect upon plaintiff. We need not discuss defendant's email regarding plaintiff's dead dog since even he has acknowledged his regret for sending the email. The evidence is therefore sufficient to prove that defendant "repeatedly committed acts with purpose to alarm or seriously annoy" plaintiff, constituting harassment under N.J.S.A. 2C:33-4(c).

Affirmed.

1 Fictitious names are used for the children to protect their privacy.