Rude text or email not enough for FRO
J.R.M.,
Plaintiff-Respondent,
v.
S.A.M.,
Defendant-Appellant.
_________________________
Argued June 25, 2019 – Decided October 15, 2019
Before Judges Rothstadt and Suter.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FV-20-1718-18.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5938-17T1
PER CURIAM
Defendant S.A.M. appeals from the Family Part's August 24, 2018 order
granting her former husband, plaintiff, J.R.M. a Final Restraining Order (FRO)
and awarding attorney's fees against her under the Prevention of Domestic
Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. The trial judge
entered the order after finding that defendant had committed the predicate act of
harassment, N.J.S.A. 2C:33-4(c), by following plaintiff and taking pictures of
him, his wife, and her children while at the boardwalk in Point Pleasant.
On appeal, defendant argues that the judge's order should be reversed
because his finding of a predicate act under the PDVA was unsupported by the
evidence as a "matter of law," and because "plaintiff failed to prove that relief
under the PDVA [was] necessary to prevent further abuse." In addition, she
contends that the judge erred by awarding attorney's fees and requiring that they
be paid within sixty days. We agree with defendant's contentions about the lack
of evidence to support the trial judge's conclusions and we reverse his
determination.
The parties were married in 1996 and had two children, who at the time
of the alleged domestic violence incident were both emancipated and estranged
from plaintiff. The parties were divorced in 2016 and at the time of the alleged
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domestic violence incident, plaintiff, who had remarried, lived in Cranford with
his wife and her children. Defendant resided in Pennsylvania.
Three days before the day of the incident, the parties' son had graduated
from high school and became emancipated. According to plaintiff, defendant
had alienated their son from him, as determined by a court in Pennsylvania, and
she became upset about the anticipated loss of child support.1 At that time,
defendant began texting and emailing plaintiff, even though he had mailed her
a May 2017 letter telling her to "cease and desist" from contacting him.
The alleged harassment took place on June 18, 2018, beginning at 2:00
p.m. in Point Pleasant. Plaintiff and his new family arrived to spend the day on
the boardwalk and beach before taking his twelve-year-old stepdaughter to a
Girl Scouts event. Soon after his arrival, plaintiff realized defendant was in
Point Pleasant after he saw defendant's car parked on the street. Upon seeing
her vehicle, plaintiff took photographs of her parked car and proceeded to the
boardwalk.
1
Earlier, a Pennsylvania court entered an order acknowledging the son's
anticipated emancipation and directed that a hearing be scheduled to address
plaintiff's contention that defendant did not comply with earlier parenting time
orders even though those orders expired with the son's emancipation.
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At approximately 4:00 p.m., plaintiff observed defendant and their adult
daughter on the boardwalk. Plaintiff believed he saw them taking photographs
of him and his new family, although no photographs from the incident were ever
produced. There was also no verbal or physical confrontation between plaintiff,
defendant, or their daughter. Although she knew defendant was in the area,
plaintiff's wife became panicked and petrified upon seeing defendant, whom the
wife believed to be unstable. Nevertheless, plaintiff and his wife felt safe
knowing the Girl Scouts were nearby and allowed the stepdaughter to play on
the rides until it was time to leave.
Plaintiff's wife believed defendant knew in advance about their plan to go
to Point Pleasant. According to plaintiff's wife, she had informed her former
spouse they were going to Point Pleasant and he then told defendant about their
plans. According to plaintiff's wife, her former spouse and defendant were
friendly. Her former spouse, however, denied advising defendant that his former
wife, plaintiff, and the children would be in Point Pleasant on that day.
Although plaintiff claimed he filed a police report with the Point Pleasant
Police Department after the incident, he did not possess a copy of the report and
he did not seek a restraining order that day. During the days following the
incident, the parties exchanged texts and emails about defendant's behavior.
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The day after the incident, defendant and her son got into an argument that
resulted in his leaving the house and going to plaintiff's home, after the son
called plaintiff to pick him up that day. When plaintiff arrived to pick up his
son, he did so with a police escort.
On June 21, 2018, plaintiff obtained a temporary restraining order from
the Family Part based upon the allegations of a complaint he filed that day. In
his complaint, plaintiff stated that defendant committed the predicate act of
harassment by "dodging behind cars, hiding behind the games [on the
boardwalk], and appeared to be taking photos of the plaintiff and his family."
The complaint also addressed what was alleged to be a past history of
domestic violence. It stated that from 2014 to 2018, defendant had "subjected
[him] to thousands of harassing and threatening emails . . .[,] plaintiff was
forced to file a 'cease and desist' order[2] against the defendant [that defendant]
ignored . . . and continued to email" plaintiff. The complaint also set forth
specific incidents in 2012 when defendant allegedly strangled him and threw
items around their house. It further alluded to "past disputes" during which
defendant grabbed plaintiff "around the neck and/or slapped [him] on the back
2
No such order existed. The allegation actually referred to the May 2017 letter
plaintiff sent to defendant.
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of the head." The complaint also stated that defendant threatened "to kill
herself;" "conveyed threats to harm and/or kill" him; and "damaged household
items."
The matter came before the trial judge for a trial on the FRO on July 12,
2018. At trial, plaintiff was represented by counsel. Defendant was self-
represented. Plaintiff, his wife, and her former spouse testified for plaintiff.
Defendant, her adult daughter, and defendant's mother testified on her behalf.
Defendant's mother's testimony related specifically to her grandson's
involvement with counseling and the parties' dispute regarding his therapy.
Plaintiff testified to his version of what occurred and to the emails and
texts he received from defendant. According to plaintiff, those communications
related to defendant's demands for payment of child support, threats that plaintiff
would not see his children, and wishes that he was dead. He also described
phone calls he alleged defendant made to him at all hours about her wanting him
to pay for things for their children. The trial judge admitted ten emails and texts
as examples of the alleged thousands of emails sent by defendant. Those emails
primarily related to the parties' parenting issues as to their son.
After considering the testimony and the documents admitted into
evidence, the judge placed his findings on the record. The judge concluded that
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plaintiff had met his burden of proof. The judge identified harassment as the
predicate offense pled by plaintiff and noted his testimony about "a prior history
of domestic violence, or harassing behavior."
The judge also described the dispute concerning the parties' son, as
testified to by defendant and her mother, as an intervening action. The issue
involved the son's reunification with plaintiff, whether defendant was
obstructing that process, and the son's emancipation upon graduation from high
school that resulted in the termination of child support which, according to the
judge, "caused some upset between the plaintiff and the defendant" on June 18.
However, the judge later corrected himself, stating that the date of the argument
was actually June 15, pre-dating the June 18 incident.
The judge then stated that he reviewed all the emails exchanged between
the parties and he found their behavior was getting worse over time. He
described the contents as "name calling" and "accusations." He turned to an
email from January 10, 2018, two years after the divorce, in which defendant
stated to plaintiff they were never going to reach a point of being "civil" with
each other. He also found that while there "was some testimony about physical
violence, there wasn't much, if any, testimony about physical violence, . . . and
there's no documentary or other proof of that."
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He established plaintiff's continuing fear of defendant by relying upon
plaintiff choosing to have the police accompany him the day after the incident
when he picked up his son. According to the judge, that indicated plaintiff had
a level of fear or concern about the reprisal. The judge credited plaintiff's
testimony by stating that "he believes he needs an FRO because he fears for the
safety of himself, his wife . . . and his three stepchildren . . . as a result of the
defendant's actions." He found that the plaintiff's wife was very concerned about
her children and found that she became panicked and immediately wanted to
leave upon seeing defendant at the boardwalk.
After reviewing each of the witnesses' testimony, the judge placed his
conclusions on the record. He stated the following:
If I were to look at the incident of June 18 in a vacuum,
I would question whether it is sufficient to constitute a
predicate act of domestic violence. But I'm not allowed
to do that because the statute tells me I've gotta look at
the allegation in conjunction with the history of
domestic violence. And I don't think that there is
much . . . doubt in my mind that, taken in conjunction,
there is sufficient proof, under 2C:33-4(c), of . . . an
act of harassment having occurred because I do believe
that the defendant, with the purpose to harass the
plaintiff, engaged in a course of alarming conduct of
repeatedly committed acts with the purpose to alarm or
seriously annoy.
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The judge concluded that there was a "purpose on the part of the defendant
to harass the plaintiff in this case."
The judge then addressed the factors under Silver v. Silver, 387 N.J.
Super. 112 (App. Div. 2006), and found that the emails and text messages gave
rise to a need for a FRO because plaintiff did not want to receive those emails
and text messages.
The judge entered the FRO on July 12, 2018. Later, after submissions
were made by counsel, the judge entered an amended FRO on August 24, 2018,
which included an award of counsel fees in the amount of $4469 in favor of
plaintiff and against defendant as an element of damages under the PDVA. This
appeal followed.
Our review of a Family Part judge's granting of an FRO is limited. We accord
"great deference to discretionary decisions of Family Part judges" given the "family
courts' special jurisdiction and expertise in family matters." G.M. v. C.V., 453 N.J.
Super. 1, 11 (App. Div. 2018) (first quoting Milne v. Goldenberg, 428 N.J. Super.
184, 197 (App. Div. 2012); and then quoting N.J. Div. of Youth and Family Servs.
v. M.C. III, 201 N.J. 328, 343 (2010)). When reviewing "a trial court's order
entered following trial in a domestic violence matter, we grant substantial
deference to the trial court's findings of fact and the legal conclusions based
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upon those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013).
We do "not disturb the 'factual findings and legal conclusions of the trial judge
unless [we are] convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as to
offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998)
(quoting Rova Farms Resort, Inc. v. Inv'rs Ins., 65 N.J. 474, 484 (1974)).
Deference is particularly appropriate when the evidence is testimonial and
involves credibility issues because the judge who observes the witnesses and
hears the testimony has a perspective that the reviewing court does not enjoy.
Pascale v. Pascale, 113 N.J. 20, 33 (1988). However, we owe no deference to a
Family Part judge's legal conclusions. See S.D. v. M.J.R., 415 N.J. Super. 417,
430 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Twp.
of Manalapan, 140 N.J. 366, 378 (1995)) ("We, of course, review the judge's
legal conclusions de novo.").
In determining whether to issue an FRO, the court first must determine
whether the plaintiff has established, by a preponderance of the evidence, that
the defendant has committed a predicate act of domestic violence as defined in
N.J.S.A. 2C:25-19(a). Silver, 387 N.J. Super. at 125. The PDVA defines
domestic violence by referring to a list of predicate offenses found within the
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New Jersey Criminal Code. J.D. v. M.D.F., 207 N.J. 458, 473 (2011). "[T]he
commission of a predicate act, if the plaintiff meets the definition of a 'victim
of domestic violence,' constitutes domestic violence . . . ." Ibid. (quoting
N.J.S.A. 2C:25-19(d)).
If the court determines a plaintiff established, by a preponderance of the
evidence, that the defendant has committed a predicate act of domestic violence
as defined in N.J.S.A. 2C:25-19(a), it must then consider the factors enumerated
in N.J.S.A. 2C:25-29(a)(1) to (6),3 to determine whether an FRO is necessary
3
The factors are:
(1) The previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;
(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the plaintiff and
defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the
protection of the victim's safety; and
(6) The existence of a verifiable order of protection
from another jurisdiction.
[ N.J.S.A. 2C:25-29(a)(1) to (6).]
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"to protect the victim from an immediate danger or to prevent further abuse."
Silver, 387 N.J. Super. at 125-27; see also A.M.C. v. P.B., 447 N.J. Super. 402,
414 (App. Div. 2016). "Commission of a predicate act is necessary, but alone
insufficient, to trigger relief provided by the [PDVA]." R.G. v. R.G., 449 N.J.
Super. 208, 228 (App. Div. 2017). The mere finding of a predicate act of
domestic violence, standing alone, is insufficient to support the issuance of an
FRO. Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999).
Whether a plaintiff has established an act of domestic violence has
occurred is not determined in a vacuum. As we have stated:
The law mandates that acts claimed by a plaintiff to be
domestic violence must be evaluated 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.
N.J.S.A. 2C:25-29(a)(1) and (2). This requirement
reflects the reality that domestic violence is ordinarily
more than an isolated aberrant act and incorporates the
legislative intent to provide a vehicle to protect victims
whose safety is threatened. This is the backdrop on
which defendant's acts must be evaluated.
[R.G., 449 N.J. Super. at 228-29 (quoting Corrente v.
Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995)).]
Applying these guiding principles, we first examine whether the record
demonstrates, by a preponderance of the evidence, that defendant committed a
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predicate act of domestic violence. Here, the judge considered whether plaintiff
proved harassment, N.J.S.A. 2C:33-4(c), a predicate act under the PDVA.
N.J.S.A. 2C:25-19(a). Harassment occurs when a person, with the purpose to
harass another, "[e]ngages 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(c). A finding of harassment requires proof the
defendant acted with a purpose to harass. See Silver, 387 N.J. Super. at 124.
Although a purpose to harass may, in some cases, be "inferred from the
evidence" and from "[c]ommon sense and experience," a finding by the court
that the defendant acted with the purpose or intent to harass another is integral
to a determination of harassment. State v. Hoffman, 149 N.J. 564, 576-77
(1997). There must be proof that a defendant's conscious object was to "harass,"
that is, "annoy," "torment," "wear out," and "exhaust." State v. Castagna, 387 N.J. Super. 598, 607 (App. Div. 2006) (quoting Webster's II New College
Dictionary 504 (1995)).
Merely knowing that someone would be annoyed, as opposed to having a
conscious objective to annoy, is insufficient to prove a purpose to harass. See
State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989). Moreover, a "victim's
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subjective reaction alone will not suffice; there must be evidence of the improper
purpose." J.D., 207 N.J. at 487.
N.J.S.A. 2C:33-4(c) "was never intended to protect against the common
stresses, shocks, and insults of life that come from exposure to crude remarks
and offensive expressions, teasing and rumor mongering, and general
inappropriate behavior. The aim of subsection (c) is not to enforce a code of
civil behavior or proper manners." State v. Burkert, 231 N.J. 257, 285 (2017).
In Burkert, the Court held, as it did twenty years ago in Hoffman, 149 N.J.
at 580-81, "[t]hat the primary thrust of N.J.S.A. 2C:33-4(c) is not to interdict
speech, but rather conduct . . . ." Id. at 273. Therefore, the Court "construe[d]
the terms 'any other course of alarming conduct' and 'acts with purpose to alarm
or seriously annoy' as repeated communications directed at a person that
reasonably put that person in fear for his safety or security or that intolerably
interfere[d] with that person's reasonable expectation of privacy." Id. at 284-85
(emphasis added).
Applying these principles, we cannot conclude from the judge's findings
that defendant engaged in a "course of alarming conduct" or acts that rose to the
level of what the Legislature intended as "domestic violence" under the PDVA.
In this case, defendant allegedly took photographs of plaintiff and his family in
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public. Defendant's acts, even considered against the backdrop of the alleged
transmittal of texts and emails containing nasty marital contretemps over the
years, while obviously inappropriate, simply did not constitute a "course of
alarming conduct" or the invasion of privacy necessary to sustain the entry of
the FRO. See State v. Sloane, 193 N.J. 423, 435 (2008) (quoting Doe v. Poritz,
142 N.J. 1, 28 n.8 (1995) (stating a person "has no reasonable expectation of
privacy in his . . . photograph")).
The statute prohibiting harassment is intended to criminalize "repeated
threats or menacing communications that reasonably place a person in fear for
his safety or security" or actions such as "repeated[] . . . unwanted
communications . . . thereby intolerably interfering with [a victim's] reasonable
expectation of privacy." Id. at 285. Here, defendant never threatened plaintiff's
safety, security, or privacy by taking photographs in public and her emails and
texts, like plaintiff's, were unkind but not threatening or alarming as
contemplated by the statute. Under these circumstances, we conclude that
defendant's acts as found by the trial judge were insufficient to establish the
alleged predicate act.
Even if this were not the case, the FRO would still have to be reversed
because the judge did not find a FRO was necessary to protect plaintiff "from
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an immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at
127. He found only that plaintiff's wife was disturbed by defendant's conduct
and that it was necessary to stop defendant from sending emails and texts. Such
conduct hardly amounts to the type of fear contemplated by both the statute and
Silver. See ibid.; see also N.J.S.A. 2C:25-29(a)(2) (identifying "[t]he existence
of immediate danger to person or property" as a factor).
Reversed. The matter is remanded to the trial court to vacate the FRO and
the award of counsel fees. We do not retain jurisdiction.
