SUPERIOR
COURT OF NEW JERSEY
APPELLATE
DIVISION
K.Z.,
v.
M.F.,
___________________________________
|
Argued February 27, 2012 - Decided
Before Judges Ashrafi and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery
Division, Family Part, Bergen County, Docket No. FV-02-2097-11.
Gerald J. Monahan argued the cause for appellant.
Respondent has not filed a brief.
PER CURIAM.
Defendant
appeals from a final restraining order (FRO) entered against him pursuant to
the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to
-35.[1] We reverse, remand, and direct the
judge to make further findings of fact consistent with this opinion.[2]
The
parties lived together and ended their relationship one month after the birth
of their son. The issuance of the
FRO relates to a phone call that defendant made to plaintiff within a few days
after he received plaintiff's application seeking child support. Plaintiff contended that defendant's
statements to her during the phone call constituted a predicate act of
harassment, N.J.S.A. 2C:33-4a.
The
judge conducted a two-day FRO hearing and listened to testimony from the
parties and three other witnesses.
Plaintiff testified that in the early evening of April 4, 2011,
defendant called her and stated:
[H]e was going to make my life difficult again, with his
sister [who] works for the court[,] and [his sister] was directing him on how
to lose my son, so he won't have to pay child support.
.
. . .
He would say he's not going to give me anything, I'm a drug
addict, [and] I'm a bad mother.
Defendant denied that he called her
on April 4, 2011, claimed that he never objected to paying child support, but
feared that if he paid plaintiff directly she would use the money to support
her drug habit.
In
an oral opinion, the judge found:
I
find that the defendant has behaved in an intimidating and aggressive manner
toward the plaintiff.
. . . .
And
I do think there are times when [defendant's] behavior and manner might cause
alarm or fear when that's not [defendant's] intent.
So
I don't think that everything that [defendant has] ever done or communicated to
the plaintiff[,] even when [he has] been excited or angry[,] is necessarily
harassment.
. . . .
I'm
not persuaded by plaintiff's argument that everything was about trying to avoid
a child support order or obligation, I don’t think that.
I'm
persuaded that the defendant has a genuine concern about plaintiff's drug
use and so does this [c]ourt.
But I think that [defendant's] effort to control [plaintiff] by saying
[defendant would] buy things for the child, but [that defendant] wouldn't give
[plaintiff] money, wasn't the correct solution or approach.
. . . .
I think the plaintiff has a
drug problem. I think she has
a problem with prescription drug misuse and I think she has a problem with . .
. illegal drug use.
.
. . .
[T]he only thing that explains why
that call was made on April 4th is . . . that [defendant was] upset when [he]
got served with the complaint for child support.
. . . .
I think [defendant] wanted to
control how [his] financial contribution to [his] child was made. I think [defendant] wanted to use it as
a means to control the plaintiff, even if that was in part motivated by a
genuine desire to not give her money that might be spent on drugs instead of on
the [child].
. . . .
I do find that the defendant has
harassed [plaintiff] . . . he was angry [and] made that call with the purpose
to harass her.
[(Emphasis added).]
In concluding that the FRO was
necessary to protect plaintiff, the judge found:
I believe that the plaintiff is
afraid of the defendant. . . . I
believe that to an extent some of the — the extent of that fear or the severity
of that fear does come in part from her own issues, which I find do include
drug use[.]
. . . .
[I]n light of the intensity of the
emotions . . . and the recent things that have occurred, . . . it's appropriate
to enter the [FRO] for the protection of the plaintiff.
This appeal followed.
On
appeal, defendant argues that the judge erred by finding he committed the
predicate act of harassment. He
contends that it was inconsistent to find, on the one hand, that he was
genuinely concerned that plaintiff would use his child support money to buy
drugs, and, on the other hand, that he called her with the purpose to
harass. He also argues that the
judge failed to find that the FRO was necessary to protect plaintiff from an
immediate danger or prevent further abuse.
Trial court
fact-finding is "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. Investors Ins. Co., 65 N.J. 474, 484 (1974)); Parish
v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010). The trial court sees witnesses
firsthand and has a "feel of the case that can never be realized by a
review of the cold record." N.J.
Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009)
(internal quotation marks omitted).
We give additional deference to factual findings of the family courts
because they have special expertise, ibid., and we do not second-guess
the exercise of sound discretion. Hand
v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
Nonetheless, when
determining whether to grant an FRO pursuant to the Act, the judge must make
two determinations. Silver v.
Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006). "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:25-19a
has occurred." Id. at
125. Second, the judge must
determine whether a restraining order is required to protect the plaintiff from
future acts or threats of violence.
Id. at 126.
Here,
plaintiff alleged that defendant engaged in the predicate act of harassment, N.J.S.A.
2C:33-4a, which provides in 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[.]
The judge found that defendant
acted with the purpose to harass; however, in light of the genuine concern that
the judge and defendant shared regarding plaintiff's drug problem, the judge
did not make sufficient findings to explain why she found that defendant acted
with the purpose to harass, rather than to safeguard his child support money. See Pressler & Verniero, Current
N.J. Court Rules, comment 1 on R. 1:7-4 (2012) (stating that Rule
1:7-4(a) "requires specific findings of fact"). Moreover,
the judge's finding that defendant acted with the purpose to harass, standing
alone, does not satisfy the definition of harassment pursuant to the statute
unless, under the facts of this case, it was "likely to cause annoyance or
alarm." See Peranio
v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995). 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." See Corrente
v. Corrente, 281 N.J. Super. 243, 245-46, 247, 249 (App. Div. 1995)
(holding that the defendant's threat to take "drastic measure[s]" and
later disconnecting the plaintiff's telephone service could not be
"characterized as alarming or seriously annoying"); Murray v.
Murray, 267 N.J. Super. 406, 408, 410 (App. Div. 1993) (finding no
alarming or seriously annoying communication where defendant repeatedly told
his wife he had no sexual feelings for her, did not love her, and planned to
divorce her); Peranio, supra, 280 N.J. Super. at 55-56
(concluding that there was no alarming or seriously annoying communication
where, during an argument, the defendant said to the plaintiff, "I'll bury
you"). In short, "[t]he
domestic violence law was intended to address matters of consequence, not
ordinary domestic contretemps," Corrente, supra, 281 N.J.
Super. at 250, and we question whether, under the facts of this case,
defendant's telephone call was "likely to cause annoyance or alarm."
Next,
there must also be a finding that "'relief is necessary to prevent further
abuse.'" J.D. v. M.D.F.,
207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)); L.M.F.
v. J.A.F., 421 N.J. Super. 523, 536-37 (App. Div. 2011). It is well-established that commission
of one of the predicate acts of domestic violence set forth in N.J.S.A.
2C:25-19 does not, on its own, "automatically . . . warrant the issuance of
a domestic violence [restraining] order." Corrente, supra, 281 N.J. Super. at 248;
Peranio, supra, 280 N.J. Super. at 54. The determination whether such an order
should be issued must be made "in light of the previous history of
domestic violence between the plaintiff and defendant including previous
threats, harassment[,] and physical abuse and in light of whether immediate
danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248
(citing N.J.S.A. 2C:25-29a(1) and (2)); Peranio, supra,
280 N.J. Super. at 54.
Although this 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:25-29a(1) to
-29a(6), to protect the victim from an immediate danger or to prevent further
abuse." Silver, supra,
387 N.J. Super. at 127.
Here,
the judge found that the FRO was necessary to protect plaintiff, "in light
of the intensity of the emotions . . . and the recent things that have
occurred." We are unclear
what is meant by "recent things that have occurred," but the judge
did not fully make findings of fact regarding plaintiff's allegations of a
history of domestic violence. "Because
a particular history can greatly affect the context of a domestic violence
dispute, trial courts must weigh the entire relationship between the parties
and must specifically set forth their findings of fact in that
regard." Cesare, supra,
154 N.J. at 405; see also R. 1:7-4(a). On remand, when making findings of fact
that may warrant the issuance of an FRO, we direct the judge to consider plaintiff's
allegations, as well as the considerations set forth in N.J.S.A.
2C:25-29a(1) to -29a(6).
We
reverse and remand for the trial court to reconsider issuance of the FRO and to
make more-detailed findings of fact in support of its decision consistent with
the applicable law as discussed in this opinion. The FRO will remain in effect pending additional findings
and further orders of the trial court.
We do not retain jurisdiction.
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[1] Defendant
also appealed from an order awarding plaintiff's counsel $7,500 in counsel fees
and imposing a lien on his workers' compensation case. Because the judge vacated the
imposition of the lien, that part of the appeal is now moot. Defendant has not briefed whether the
judge abused her discretion in awarding counsel fees. In light of our remand, the judge may exercise her
discretion to reconsider the award of counsel fees if warranted.
[2] Defendant
appeared pro se at the FRO hearing, and plaintiff did not file opposition to
this appeal or appear before us at oral argument.
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