Theft and calling mom senile fool not grounds for DV E.M.B. v R.F.B. DOCKET NO. A-1155-09T1

Theft and calling mom senile fool not grounds for DV

E.M.B. v R.F.B.

DOCKET NO. A-1155-09T1

________________________________________________________________

Submitted November 3, 2010 - Decided

Before Judges Skillman, Parrillo and

Espinosa.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Camden

County, Docket No. FV-04-708-10.

R.F.B., appellant pro se.

Respondent has not filed a brief.

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Defendant appeals from a final domestic violence

restraining order (FRO) entered against him that was based on

harassment. For the reasons that follow, we reverse.

APPROVED FOR PUBLICATION

April 19, 2011

APPELLATE DIVISION

April 19, 2011

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A temporary restraining order was issued against defendant

on August 18, 2009. When defendant could not be served with the

order because plaintiff had no knowledge of his whereabouts, an

indefinite restraining order was issued on August 27, 2009.

A FRO hearing was held on September 17, 2009. Defendant

did not appear. At the outset, the court stated that defendant

had been served by telephone with notice to be present and that

it was satisfied defendant was voluntarily absent from the

proceedings.1 The evidence provided by plaintiff, defendant's

88-year-old mother, can be summarized as follows:

Defendant, 56 years old, resided with his mother in

Somerdale. She filed a domestic violence complaint against him

on August 18, 2009. Her stated reasons for doing so were that

defendant had stolen her keys to the car, cell phone, bank book,

money, and some jewelry. Plaintiff stated that he removed the

items from her bedroom. She knew he stole the items because

those were her things and she was the only other person who

lived there. She testified that defendant thought she should

not have the keys to the car; that he wouldn't say why but would

just take them and had done so twice before. She also testified

1 The record is insufficient for us to determine whether service

was adequate and whether defendant was voluntarily absent. In

light of our reversal of the FRO for other reasons, we need not

address these issues.

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that, at one time, defendant had taken her wallet and then

mailed it back to her, without the money that had been inside.

She described his behavior as "controlling." She stated he had

also called her a "senile old bitch." When the court asked if

that "would annoy" her, she replied, "It hurt me . . . [be]cause

I was . . . I felt that I was good to him. He had no reason to

talk that way to me." She testified that defendant had also

stolen little things from her in the past and on one occasion

locked her out of the house.

The trial court found that defendant committed an act of

domestic violence upon plaintiff, i.e., harassment. Finding

plaintiff to be credible, the court made the following findings

based upon her testimony:

I find that when the plaintiff testifies

that her son is controlling, . . . that he

takes personal property that belongs to her

from her.

. . . .

I find that the acts as they are described

are harassing acts. I find that plaintiff's

testimony as she drops her head and . . .

when she states with great embarrassment, my

son says to me you're a senile old bitch, I

find that she's sincere as she weeps and she

says that that hurts her, so I find that

when the defendant does these things that it

is his purpose to annoy or to alarm the

plaintiff.

. . . .

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I find that the past history she's given

this Court, I find that to be credible when

she states that the defendant had locked her

out of her home. She had to use a neighbor

to let her back in her home. . . .

I find that she's credible when she says

that the defendant has taken things from her

in the past. It appears to the Court that

the defendant is underestimating his 88 year

old mother when he believes that because of

her age she may not know where her

belongings are or she may not know exactly

what it is that she's doing, and I find that

my observations of her and her responses to

the questions, that she's pretty sharp and

she knows exactly what's happening.

The court found the predicate act of harassment had been

proven but did not specify what section of N.J.S.A. 2C:33-4 was

violated. Concluding that a restraining order was "necessary to

protect the [plaintiff] from any future acts of domestic

violence[,]" see Silver v. Silver, 387 N.J. Super. 112 (App.

Div. 2006), the court entered a FRO. In this appeal, defendant

challenges those findings and the entry of the FRO.

In reviewing a decision of a family court, we "defer to the

factual findings of the trial court," New Jersey 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 . . . ." New Jersey 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

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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.

Before a court can conclude that domestic violence occurred

and enter a restraining order, it must find that one of the

enumerated predicate acts under N.J.S.A. 2C:25-19 was committed.

See Silver, supra, 387 N.J. Super. at 125. Here, plaintiff's

stated reasons for seeking the FRO were her son's thefts.

However, theft is not among the predicate acts enumerated in

N.J.S.A. 2C:25-19.

The court found that defendant's conduct constituted

harassment, an enumerated act under N.J.S.A. 2C:25-19. A person

is guilty of harassment

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;

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).]

Under either section of this statute, a defendant must act with

the purpose to harass. Subsection (a) targets specific modes of

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speech, including the use of "offensively coarse language," and

requires that the manner of speech be "likely to cause annoyance

or alarm." Subsection (c) requires a course of repeated

conduct, motivated by a higher degree of purpose, "to alarm or

seriously annoy." Ibid. (Emphasis added).

Under the facts as found by the court here, the only

communication that could arguably support a finding of

harassment under subsection (a) occurred when defendant called

his mother a "senile old bitch." As the court found, this was

understandably upsetting to plaintiff. However, we do not

measure the effect of the speech upon the victim; we look to the

purpose of the actor in making the communication. State v.

L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied,

143 N.J. 325 (1996).

The harassment statute was not enacted to "proscribe mere

speech, use of language, or other forms of expression." Ibid.;

see also State v. Fin. American Corp., 182 N.J. Super. 33, 36-38

(App. Div. 1981). Because the First Amendment to the United

States Constitution "permits regulation of conduct, not mere

expression[,]" the speech punished by the harassment statute

"must be uttered with the specific intention of harassing the

listener." L.C., supra, 283 N.J. Super. at 450. A restraining

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order based on harassment cannot be entered "if based on a mere

expression of opinion utilizing offensive language." Ibid.

The sparse record is devoid of the context for defendant's

comment. Although the court concluded that defendant intended

to harass, its observation reveals a different appraisal, that

defendant's actions were based upon an erroneous perception of

his mother's competence: "the defendant is underestimating his

88 year old mother when he believes that because of her age she

may not know where her belongings are or she may not know

exactly what it is that she's doing . . . ." (emphasis added).

The evidence therefore fails to prove by a preponderance of the

evidence that defendant called his mother a "senile old bitch"

with the intent to annoy her, in violation of subsection (a).

We next turn to considering the sufficiency of the evidence

to support a conclusion that defendant violated N.J.S.A. 2C:33-

4(c). Even if the thefts described by plaintiff provided the

requisite course of conduct, a violation of this subsection

requires proof of a purpose "to alarm or seriously annoy."

Plaintiff provided no testimony to support a finding that

defendant was so motivated. The record does not provide

evidence that defendant acted with any purpose in stealing from

his mother other than to appropriate her property for his own

use.

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When determining whether the harassment statute has been

violated, "courts must consider the totality of the

circumstances," H.E.S. v. J.C.S., 175 N.J. 309, 326 (2003);

Cesare, supra, 154 N.J. at 404, in light of the parties'

history. Silver, supra, 387 N.J. Super. at 125. There was no

evidence of any prior harassing behavior by defendant. As

noted, evidence of thefts does not constitute evidence of a

prior history of domestic violence in the absence of proof that

the thefts were committed with the requisite intent to harass.

Similarly, such prior history is not provided by the statement

that defendant locked plaintiff out of the house because the

facts and context of that incident are not included in the

record. The evidence therefore failed to support a conclusion

that defendant engaged in a course of conduct with the intent to

alarm or seriously annoy his mother.

Reversed.