R.N., v. P.X.,

                                                                                    SUPERIOR COURT OF NEW JERSEY

                                                                                    APPELLATE DIVISION

                                                                                    DOCKET NO.  A-4148-09T3

R.N.,

           

v.

P.X.,

	February 22, 2012

 

Argued February 7, 2012 - Decided

Before Judges Reisner and Simonelli.  

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-1494-10.

Karin Duchin Haber argued the cause for appellant/cross-respondent (Haber Silver & Simpson, attorneys; Ms. Haber, of counsel; Jani Wase Vinick and Amy L. Miller, on the briefs). 

Mark Vogel argued the cause for respondent/cross-appellant.

PER CURIAM

            Defendant P.X. appeals from the April 6, 2010 final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A. 2C:33-4a. Plaintiff R.N. cross-appeals from that part of the FRO which required him to pay $3000 to defendant for interim emergent living expenses.  We reverse the FRO.[1]

            We derive the following facts from the evidence presented during the hearing for the FRO.  Plaintiff and defendant met in May 2006 in New Jersey.  Although defendant is a naturalized Canadian citizen, she resided in China at the time.  In July 2007, the parties began living together in plaintiff's home in New Jersey, and in September 2007, they learned that defendant was pregnant.  Their daughter, T.N., was born in May 2008.

            There is no dispute that the parties had numerous arguments over marriage; defendant wanted to get married, but plaintiff was reluctant.  The argument that led to the entry of the FRO occurred on January 8, 2010.  According to plaintiff, he and defendant argued from 3:00 p.m. to 11:00 p.m., during which defendant screamed, yelled, and pounded on and kicked the door to the bedroom where plaintiff had locked himself in.   Plaintiff was shaking during the argument, his heart was pounding, and he was extremely upset.  Defendant eventually calmed down, and left the bedroom area.  Defendant admitted that the parties had argued over marriage on January 8, 2010; however, she said that the argument only lasted two minutes, and she did not persistently bang on or kick the bedroom door. 

            Plaintiff also claimed that defendant threatened numerous times to take T.N. to China without his consent and not return the child to New Jersey if plaintiff did not marry her.[2]  On January 18, 2010, defendant traveled to China with T.N. to visit her parents, and plaintiff joined them on February 20, 2010.  The parties returned to New Jersey without T.N.  Unbeknownst to defendant, plaintiff filed a complaint on March 15, 2010 for custody of T.N. and an order to show cause, requesting that defendant be incarcerated until T.N. was returned to New Jersey.  The court granted plaintiff legal and physical custody of T.N., but refused to order defendant's arrest. 

            Plaintiff married defendant the next day, on March 16, 2010.[3]  On March 17, 2010, defendant left for China to retrieve T.N.  On March 26, 2010, while defendant was away, plaintiff obtained a temporary restraining order (TRO) against her based on the January 8, 2010 incident.  Defendant was served with the TRO upon her return to New Jersey on March 31, 2010.  Among other things, the TRO prohibited defendant from returning to plaintiff's home or visiting T.N., and ordered her to surrender T.N.'s passport. 

            Plaintiff also testified about these alleged prior acts of domestic violence: (1) on December 21, 2008, while riding in a car, defendant taunted him by singing to T.N. that "we are going to China;" (2) on May 4, 2009, defendant woke plaintiff, began questioning him about their relationship, and continued questioning him after he locked himself in another bedroom; (3) on October 9, 2009, the parties had an argument.  In addition, on December 8, 2009, the parties argued about defendant's purchase of an expensive necklace that plaintiff wanted defendant to return.  Plaintiff locked himself in a bedroom during that argument, and defendant yelled at him and pounded on and kicked the bedroom door.  Plaintiff finally opened the door and let defendant inside the bedroom.  She would not let him exit, blocked the door, and yelled at him to hit or kill her.  Defendant eventually left the bedroom.  Defendant admitted the parties had argued over the necklace, but she denied yelling and banging on the bedroom door, and said the argument lasted two minutes.

            Plaintiff claimed that, as a result of the arguments, he suffered stress and was hospitalized.  According to defendant, however, plaintiff was hospitalized for a liver problem that had nothing to do with their arguments.

            After finding plaintiff's testimony "slightly more credible" than defendant's testimony, the trial judge issued an FRO based on the January 8, 2010 incident.  He found that defendant committed an act of domestic violence under N.J.S.A. 2C:33-4a because she had made a communication at extremely inconvenient hours in a manner that was likely to cause annoyance or alarm.  In determining whether plaintiff needed the protection of an FRO, the judge found that plaintiff "seemed to be genuine in his fears and . . . stress.  I mean, his voice [reeks] of stress from the tension this has caused."  The judge then concluded as follows:

            [O]ne thing I think that the domestic violence laws are for is to try to let the air out [of] the balloon, try to de-stress the situation . . . these two parents have many, many miles to go.  They both have one thing in common.  They both love their child.  And . . . the court system will try to make it so that . . . this child will be raised in a health[y] . . . and a safe . . . way by two parents who love [her], but will not be -- at least until this restraining order is dissolved in some way -- will not be able to speak to each other, e-mail each other, talk to one another, text each other in any regard.

This appeal followed. 

            On appeal, defendant raises the following contentions:

POINT I:             THE TRIAL COURT COMMITTED AN ERROR OF LAW BY FAILING TO PROPERLY CONSIDER THE TWO PRONGS OF SILVER V. SILVER.

  POINT II:             THE TRIAL COURT'S "PRONG ONE" FINDING THAT DEFENDANT'S ALLEGED CONDUCT CONSTITUTED AN ACT OF DOMESTIC VIOLENCE, RATHER THAN MERE MARITAL CONTRETEMPS, WAS NOT SUPPORTED BY THE RECORD AND WAS AN ABUSE OF DISCRETION.

POINT III:          THE TRIAL COURT COMMITTED ERRORS OF LAW AND ABUSED ITS DISCRETION WHEN IT FOUND THAT PLAINTIFF HAD SATISFIED "PRONG TWO" OF THE SILVER ANALYSIS.

                            A. The Trial Court Failed  To         Separately Consider "Prong    Two" Of The Silver Analysis.

                            B. To The Extent The Trial Court    Did Specifically Find That         Ongoing Restraints Were       Needed, Said Finding Was Not      Supported By Evidence In The Record And Was Actually         Contrary To The Weight Of The         Evidence Presented.

POINT IV:          THE FINAL RESTRAINING ORDER SHOULD BE REVERSED AND REMANDED TO THE TRIAL COURT BECAUSE DEFENDANT'S COUNSEL WAS INEFFECTIVE AND FAILED TO PRESENT HIGHLY MATERIAL EVIDENCE THAT WOULD LIKELY HAVE CHANGED THE OUTCOME OF THE PROCEEDINGS.

                            A. This Court Should Recognize A         Right To Effective Counsel     For Defendants In Domestic      Violence Proceedings.

                            B. But For The Ineffectiveness of

                                    Defendant's Counsel, The        Final Restraining Order    Likely Would Not Have Been   Entered.

Because we conclude that (a) the proofs did not establish, and the judge did not find, that defendant acted with the purpose to harass; (b) the predicate act was not of sufficient significance to constitute domestic violence; and (c) the judge failed to find that an FRO was necessary to protect plaintiff from an immediate danger or prevent further abuse, the FRO must be reversed without our having to consider defendant's remaining contentions.

I.

            To obtain an FRO pursuant to the PDVA, 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:25-19a, which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence.  See J.D. v. M.D.F., 207 N.J. 458, 475 (2011); Silver v. Silver, 387 N.J. Super. 112, 124-25 (App. Div. 2006).  Here, the judge viewed plaintiff's allegations as falling under N.J.S.A. 2C:33-4a, which provides that harassment occurs when "a person . . . with purpose to harass another . . . [m]akes, 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[.]"  A finding of harassment requires proof that the defendant acted "with purpose to harass."  See Silver, supra, 387 N.J. Super. at 124.  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, the judge's determination that defendant committed a predicate act cannot stand and the FRO must be reversed.  Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995).

II.

            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, during an argument with his wife, the defendant threatened "drastic measure[s]" and later disconnected the plaintiff's telephone service.  Id. at 245-46.  We held that this communication and conduct could not be "characterized as alarming or seriously annoying."  Id. at 249.  We drew the same conclusion in another case where the defendant repeatedly told his wife he had no sexual feelings for her, did not love her, and planned to divorce her.  Murray v. Murray, 267 N.J. Super. 406, 408, 410 (App. Div. 1993).  We likewise found no alarming or seriously annoying communication where, during an argument, the defendant said to the plaintiff, "I'll bury you."  Peranio v. Peranio, 280 N.J. Super. 47, 55-56 (App. Div. 1995). 

            Assessing the judge's opinion in this case in the light most favorable to plaintiff, the evidence suggested only that on January 8, 2010, the parties engaged in a very loud argument over marriage.  Even had the judge found that defendant spoke and acted with the purpose to harass -- which he did not -- these circumstances still failed to meet the standard necessary for the entry of an FRO.

As then Judge (now Justice) Long stated in Corrente, supra, 281 N.J. Super. at 250, the type of conduct that occurred here "was plainly never contemplated by the Legislature when it addressed the serious social problem of domestic violence."  Instead, "the invocation of the domestic violence law" in this case, like in 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, 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.

III.

            The FRO must also be reversed because the judge did not find that restraints were necessary "to protect the victim from an immediate danger or to prevent further abuse."  J.D., supra, 207 N.J. at 476, 488; Silver, supra, 387 N.J. Super. at 127.  As explained in J.D., supra, 207 N.J. at 475-76, the finding of a predicate act satisfies only the first step in a two-step process.  Because "the Legislature 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."  Silver, supra, 387 N.J. Super. at 126-27.  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. 

            Although the judge here noted that he found "a reasonable risk of . . . harm, that [the arguments] will continue[,]" he engaged in no principled analysis of why he found that to be the case.  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.  Further, since the parties no longer live together and defendant waived any claim to return to reside in plaintiff's home, any possible concern about a future similar domestic dispute is moot.

            Reversed.

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[1]  Defendant's counsel represented at oral argument of this appeal that if we reversed the FRO, then defendant waived payment of the $3000 and will not seek to return to reside in plaintiff's home.  Thus, we dismiss plaintiff's cross-appeal as moot.

[2]  The trial judge made no finding that this constituted harassment.  Nonetheless, both parties conceded at oral argument of this appeal that any claim of harassment based on this alleged threat has been resolved and is moot.  In other words, plaintiff no longer fears that defendant will take T.N. to China without his consent.

[3]  On April 8, 2010, plaintiff filed a complaint seeking to nullify the marriage.