C.H., v. J.S Domestic violence fro reversed where no intent to harass

C.H.,
     Plaintiff-Respondent,

v. J.S.,

     Defendant-Appellant.
_______________________________

RECORD IMPOUNDED

 NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

Decided August 25, 2015 Before Judges Lihotz and Rothstadt.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0012-15.
Murphy & Cistaro, LLC, attorneys for appellant (Patricia J. Cistaro, on the brief).

          Respondent has not filed a brief.
PER CURIAM

Submitted May 26, 2015 -

Defendant J.S. appeals from a July 9, 2014 restraining order, pursuant to New Jersey's Prevention of Domestic Violence Act (the PDVA), N.J.S.A. 2C:25-17 to -35, purportedly based on the predicate offense of criminal harassment, N.J.S.A. 2C:33-4. We reverse. Not only was the evidence of record insufficient to support the trial judge's

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO.  A-5846-13T1

final

conclusions, but also the procedures employed at trial deprived defendant of fundamental due process.
These facts are taken from the sparse testimonial evidence presented at trial by plaintiff C.H. and record comments by defendant, both of whom appeared self-represented. Plaintiff and defendant began dating in June 2012 and ended their relationship on October 19, 2013. Although unclear, the record suggests the parties resumed their relationship and again broke up sometime in June 2014. Earlier that month, defendant sent plaintiff a series of "six or seven ranting text messages" calling her names and suggesting he intended to post private videos of her on the internet.
Plaintiff testified generally defendant had made this threat before and she "wanted to put a stop to it" so she went to the police. Prompted by the judge's questions: "How did this incident about the video affect you?" and "Are you concerned?" plaintiff stated she was concerned because "once something goes on the internet it doesn't come off the internet."
The judge addressed defendant and asked him whether he had questions for plaintiff. Defendant responded, "I don't know the context to ask something like this." The judge queried, "Well let me ask you this, do you dispute that you had this

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conversation and these e-mails where you threatened to expose her to the world?" To which defendant responded,
I admit that the third time that she broke up with me I . . . was very hurt, and I said things I didn't mean, but I also think that after two years of being with me she knows that I would never do anything like that. I don't even know how to do anything like that. I wanted her to understand . . . how hurt I was, but that's it.
At that point, the "hearing" ended as the judge announced "that's where you cross the line" and found defendant's statement represented an admission of criminal harassment. He found plaintiff proved by a preponderance of the evidence an act of domestic violence necessitating a final restraining order.
The judge proceeded to recite the provisions of the final restraint. As defendant attempted to interject a question, he was rebuffed. Defendant objected, stating, "I feel like I didn't get to ask several of the questions that --" but the judge again interrupted, stating he would allow defendant to ask any questions after he finished issuing the order. At that point, plaintiff was told to leave the courtroom and defendant was instructed to sit in the first row while the order was being finalized. Defendant remarked:
[DEFENDANT]: I feel like the cross[-] examination was over before I even got to say anything.

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THE COURT: Sir, this is the procedure. . . . what do you mean the --
[DEFENDANT]: I mean, . . . I said one thing, and we didn't get to discuss any of the stuff that I probably would have brought up regarding the fact that I've never threatened or violated her in any way ever.

               THE COURT:     Okay.  I believe that.

....
She said you threatened to release videos of her in a compromising fashion on the internet, and you didn't deny that. You admitted that, sir.
[DEFENDANT]: I said I sent her angry hurtful messages, and I . . . mentioned the pictures. I never -- she knows for a fact that I would not even know how to technologically do that.
....
THE COURT: I've ruled on the case .... I'msorry.
On appeal, defendant essentially raises two distinct questions: he challenges the sufficiency of the proofs on which the trial judge relied to enter the final restraining order against him and he maintains his due process rights requiring a fair opportunity to be heard and to defend himself against plaintiff's claims were violated.
Our role in reviewing the trial judge's conclusions following a non-jury trial is limited. We are bound by the trial judge's factual findings which are "supported by adequate,

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substantial, credible evidence" in the record. Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "In Cesare, . . . the Supreme Court placed trust in the 'expertise' of Family Part judges and their ability to assess evidence of domestic violence and determine whether a restraining order is necessary." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013) (citing Cesare, supra, 154 N.J. at 413, 416), certif. denied, 216 N.J. 587 (2014). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] 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.'" Ibid. (alterations in original) (quoting Cesare, supra, 154 N.J. at 412). Importantly, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The PDVA "sets forth the Legislature's purpose and intention in broad and unmistakable language," J.D. v. M.D.F., 207 N.J. 458, 472 (2011), found in N.J.S.A. 2C:25-18, which states:

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The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.
The PDVA provisions that empower "a court to restrain a defendant's contact and communication with the victim or members of the victim's family, N.J.S.A. 2C:25-29(b)(6), (7)" along with other enumerated relief, are "designed to remediate behavior" and "protect a victim from future infliction of violence." D.N., supra, 429 N.J. Super. at 605.
In adjudicating a domestic violence case, the trial judge's task is two-fold. Silver v. Silver, 387 N.J. Super. 112, 125 (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:25-19(a) has occurred." Ibid. (citing N.J.S.A. 2C:25-29(a) (providing required standard of proof)). "The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a

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restraining order that provides protection for the victim." Id. at 126 (footnote omitted).
The complaint in this matter alleged criminal harassment, N.J.S.A. 2C:33-4, which is a predicate offense listed in the PDVA. N.J.S.A. 2C:25-19(a)(13). A person is guilty of harassment who:
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.
[N.J.S.A. 2C:33-4.]
"Our courts have struggled with the proofs needed to
support a domestic violence restraining order based on claims of harassment." M.D.F., supra, 207 N.J. at 482. "Not all offensive or bothersome behavior . . . constitutes harassment." Id. at 483. "Often, a party's accusation that another's actions are 'harassing' is vague and conclusory, making it particularly difficult for a trial court to discern on which side of the line running between domestic violence and ordinary 'contretemps' a particular act properly falls." Id. at 482.

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Nonetheless, it remains clear that a plaintiff must prove a defendant acted with a purpose to harass, and committed an act prohibited by a subsection of the statute. See C.M.F. v. R.G.F., 418 N.J. Super. 396, 402 (App. Div. 2011) (citing State v. Hoffman, 149 N.J. 564, 576 (1997)); L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). "'A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result.'" Hoffman, supra, 149 N.J. at 577 (quoting N.J.S.A. 2C:2-2(b)(1)). Therefore, there must be proof that a defendant's conscious object was to "harass," that is, "'annoy,'" "'torment,'" "'wear out,'" or "'exhaust.'" State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (quoting Webster's II New College Dictionary 504 (1995)), certif. denied, 188 N.J. 577 (2006). 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).
"A finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577. Because direct proof of intent is often absent, "purpose may and often must be inferred from what is said and done and the

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surrounding circumstances," and "[p]rior conduct and statements may be relevant to and support an inference of purpose." Castagna, supra, 387 N.J. Super. at 606. "While [an appellate court] might or might not have made the same inferences, [its] role is one of determining whether the trial judge's inferences were rationally based on evidence in the record." State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995). In considering whether a party's conduct rises to the level of harassment, the trial judge must "'weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard.'" Pazienza v. Camarata, 381 N.J. Super. 173, 183 (App. Div. 2005) (quoting Cesare, supra, 154 N.J. at 405).
Based upon our review of this record in light of the applicable law, we agree with defendant this extremely limited evidential record is insufficient to satisfy either subsection of the statute and does not sustain the judge's conclusion that defendant's conduct amounted to harassment. Plaintiff's general statement regarding the receipt of offending text messages was unaccompanied by detail, such as when the messages were received or what each message said. Plaintiff never presented the text messages or offered evidence supporting defendant's intention to harass. Further, contrary to the judge's findings, defendant's

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statements were not an admission of the conduct and he specifically denied an intent to harass. The judge's abrupt ending to this "hearing" curtailed the evidential presentations of both plaintiff and defendant. Thus, the record fails to support the entry of the final restraining order.
Even more important, we conclude defendant's fundamental rights to be heard were trampled by the hearing procedures employed. A litigant in civil proceedings is entitled to a fair hearing, imbued with the protections of due process. See A.B. v. Y.Z., 184 N.J. 599, 604 (2005); H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003). The due process guarantee expressed in the Fourteenth Amendment to the United States Constitution requires assurance of fundamental fairness during legal proceedings. U.S. Const. amend. XIV, § 1. This includes the opportunity to be heard and requires "procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses . . . ." Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005).
It is clear from this hearing transcript defendant was not given the chance to meaningfully respond to plaintiff's allegations and was never permitted to present evidence, including witnesses or documents he believed supported his defense. Rather, the judge concluded the hearing when he

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understood defendant's response amounted to an admission that satisfied plaintiff's elements of proof.
We recognize these matters are summary in nature, which may be accompanied by some relaxation of formal trial procedures, such as requiring a party to stand when addressing the court or requiring witnesses to take the stand. We are also aware of the limited need of trial judges to aid the trial process by initiating examination. However, we will not condone the relaxation in trial formalities that deprive due process.
Many litigants who come before our courts in domestic violence proceedings are unrepresented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires a high degree of patience and care. The pressures of heavy calendars and volatile proceedings may impede the court's willingness to afford much leeway to a party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount.
[M.D.F., supra, 207 N.J. at 481.]
Defendant was not afforded a "full and fair hearing," which
must be provided before entry of something as serious as a final restraining order. The July 9, 2014 order must be vacated.
Based upon our conclusions we need not address the remaining arguments advanced by defendant on appeal. We reverse the judge's determination, vacate the final restraining order

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and remand this matter for a new trial before a different Family Part judge.

     Reversed and remanded.

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