FRO vacated if plaintiff does not need protected

M.D.G.,

Plaintiff-Respondent,

v.

J.G.,

Defendant-Appellant.

_________________________________________

September 22, 2016

Argued September 14, 2016 – Decided

Before Judges Alvarez, Accurso and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-2167-15.

Jay H. Greenblatt argued the cause for appellant (Greenblatt & Laube, P.C., attorneys; Mr. Greenblatt, of counsel; Bonnie L. Laube, on the brief).

Melissa Y. Hoffman argued the cause for respondent (Weinberger Law Group, LLC, attorneys; Ms. Hoffman, on the brief).

NOT FOR PUBLICATION WITHOUT THE  APPROVAL OF THE APPELLATE DIVISION     This opinion shall not "constitute precedent or be binding upon any court."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 only binding 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-0   

PER CURIAM

Defendant J.G. appeals from a final restraining order (FRO), issued against him by the Family Part under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17-35. Defendant argues the court erred by finding he committed the predicate offense of harassment, as defined in N.J.S.A. 2C:33-4 (a) and (c). Defendant further argues the court erred in finding the FRO was necessary to protect plaintiff M.D.G. from future acts of domestic violence. We agree as to the latter argument as the hearing judge did not articulate a sufficient basis for the issuance of the restraining order as required by the Act.  Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).

The record discloses the following facts. The parties were married on March 15, 2008. One son was born of the marriage in January 2014. The parties separated shortly thereafter.¹ On February 7, 2014, a dispute arose between defendant and plaintiff's sister regarding the care of the child. After plaintiff called the police, a Cherry Hill police officer responded to the scene. Plaintiff reported that defendant was interfering with her family's attempts to assist with caring for the child. No charges were filed and the police officer informed plaintiff that the dispute was a civil matter. Shortly thereafter, plaintiff sought issuance of a temporary restraining order (TRO). 

A TRO was issued on March 18, 2015, with an amended TRO issued on April 8, 2015. The TROs alleged that defendant "did endanger plaintiff's life[,] health or well[-]being" by engaging in criminal offenses including harassment, assault, terroristic threats, and stalking. Plaintiff alleged that while the parties were at a surgical center for treatment of the child on March 12, 2015, defendant "became irate[,]" yelled at plaintiff and her friend, pushed plaintiff and grabbed the child out of plaintiff's arms. Plaintiff further alleges that defendant "ha[d] been sending harassing emails" ever since the incident occurred. Civil restraints were also issued against defendant, though they were not imposed at trial and therefore not included in the record.

The hearing commenced on April 8, 2015, and concluded on May 13, 2015. The judge heard testimony from plaintiff, plaintiff's friend, and defendant, and reviewed a video recording of the March 12, 2015 incident at the surgical center. The judge also reviewed documentary evidence, including the February 7, 2014 police report; photographs; medical reports for the child; the TROs; and, most importantly, a series of emails sent by defendant to plaintiff between January and March 2015, many of which were sent in rapid succession. A portion of the emails address issues concerning the care or health of the child, who required heightened medical attention due to issues arising from an incomplete circumcision. However, many of the emails also addressed the parties' marital status and raised issues concerning forgiveness and reconciliation.² Some of defendant's January 2015 emails were written from the perspective of the child asking why plaintiff kept the child away from defendant. 

On May 13, 2015, the judge issued an oral decision granting an FRO. The judge characterized plaintiff's friend's testimony as "scripted" and lacking "significance or relevance." He also found that the video recording of the March 12, 2015 incident discredited plaintiff's version. The judge concluded that plaintiff's testimony was "untrue" and lacked credibility, and he rejected plaintiff's accusations of assault, terroristic threats, and stalking as unsupported by the record. The judge did find, however, that plaintiff’s testimony regarding the emails was corroborated by the documentary evidence relative to allegations of harassment. The judge accepted plaintiff's testimony in that regard, and following a discussion of the text of the emails, concluded that the communications constituted harassment pursuant to State v. Hoffman, 149 N.J. 564, 580-81 (1997) and cognate decisional law. The judge concluded there was both sufficient proof of defendant’s purpose to harass and "the need for [an FRO]" pursuant to Silver, supra, 387 N.J. Super. at 125-28. An FRO was entered on May 13, 2015. This appeal followed.

Defendant raises the following issues on appeal:

POINT I

THE EMAILS RELIED ON BY THE TRIAL JUDGE DID NOT SUPPORT A FINDING OF HARASSMENT.

POINT II

CAUTION MUST BE EXERCISED IN CONSIDERING THE ENTRY OF [AN FRO].

POINT III

THE USE OF THE ACT AS A SWORD RATHER THAN A SHIELD.

POINT IV

A FAIR ANALYSIS IN CONDUCTING THE REQUIRED "SECOND INQUIRY" . . . WOULD NOT SUPPORT THE ENTRY OF [AN FRO].

POINT V

THE VIOLATION OF PRIOR RESTRAINTS.

POINT VI

REPETITIVE "BADGERING" EMAILS DO NOT, WITHOUT MORE, CONSTITUTE THE CRIME OF HARASSMENT.

J.G. first argues that the trial judge failed to make appropriate findings as to "purpose." This finding is requisite to establish harassment. "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. Nonetheless, we note that purposeful conduct "is the highest form of mens rea contained in our penal code, and the most difficult to establish."  State v. Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). Its establishment requires proof, in a case such as this, that it was the actor's "conscious object to cause [the intended] result," N.J.S.A. 2C:2-2(b)(1) – i.e., to cause annoyance or alarm. A plaintiff's assertion that the conduct is harassing is not sufficient.  J.D. v. M.D.F., 207 N.J. 458, 484 (2011) (citing Chernesky v. Fedorczyk, 346 N.J. Super. 34, 40 (App. Div. 2001)). Further, a "victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose."  Id. at 487 (citing State v. Washington, 319 N.J. Super. 681, 691-92 (Law Div. 1998)).

In J.D., the Court noted:

. . . harassment is the predicate offense that presents the greatest challenges to our courts as they strive to apply the underlying criminal statute that defines the offense to the realm of domestic discord. Drawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of ordinary domestic contretemps presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application.

[J.D., supra, 207 N.J. at 475.]

In reviewing a decision of a family court, we "defer to the factual findings of the trial court."  N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters," N.J. Div. of Youth & 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 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. Also, the "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); see also State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.2d 898 (2005).

Arguably, the judge's finding of the predicate offense of harassment including "purpose" finds some support within the record. As our courts have observed, direct proof of intent and purpose may often be inferred from what is said and done in the surrounding circumstances.

After defendant received no reply to his emails from plaintiff, he continued to make numerous attempts at contact. The judge found that the number of contacts during the course of a given day, and the tone and tenor of the emails, which included subject matter in violation of the civil restraints, was sufficient to constitute the predicate offense. The judge noted that certain emails "went far beyond" the boundaries of the restraints. The judge further noted that while a violation of the civil restraints alone does not form the basis for an FRO, J.G. "recognized" that [M.D.G.] would find the communications harassing and annoying.³

The judge further found that defendant’s email communication reflected both his "obsessive and controlling behavior," and how he "lashes out and badgers and bullies [plaintiff] when she will not agree with what he wants to happen." As such, the judge held that the emails violated subparts (a) and (c) of the harassment statute.

Applying our standard of review, after our review of the trial record and controlling law, we are persuaded that there was narrowly sufficient credible evidence to support the finding of a predicate act of domestic violence. However, the scope of our review does not end here.

As noted in Kamen v. Egan, 322 N.J. Super. 222, 229 (App. Div. 1999), the Act "is intended to assist those who are truly the victims of domestic violence. It should not be trivialized by its misuse in situations which do not involve violence or threats of violence." The Act was intended "to address matters of consequence, not ordinary domestic contretemps."  Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995).

It is for this reason that in adjudicating a domestic violence complaint, the Family Part must perform a two-fold task. "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."  Silver, supra, 387 N.J. Super. at 125. Second, a court must determine "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 a victim from immediate danger or to prevent further abuse."  Id. at 127. Here, no specific findings were made based upon the statutory factors.

Defendant argues that, under these standards, there was insufficient evidence presented at trial to support the entry of an FRO against him. In Silver, this court articulated the two-step procedure for determining whether domestic violence sufficient to warrant issuance of an FRO had been demonstrated.

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. . . . In performing that function, "the Act does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.'"  Cesare [v. Cesare], 154 N.J. [394,] 402 [(1998)] (quoting Peranio [v. Peranio], 280 N.J. Super. [47,] 54 [(App. Div. 1995))]. Stated differently, when determining whether a restraining order should be issued based on an act of assault or, for that matter, any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property.  See N.J.S.A. 2C:25-29(a)(1) and (2).

. . . .

The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim. As we noted in Kamen [v. Egan], 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 restraining order. 322 N.J. Super. [222,] 227 [(App. Div. 1999)]. 

[Silver, supra, 387 N.J. Super. at 125-27 (footnote and citations omitted).]

The "guiding standard" for entering an FRO is "whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127; see also N.J.S.A. 2C:25-29(b).

Here, the judge acknowledged that his determination of the need for the issuance of an FRO was largely influenced by J.G.'s trial conduct which the judge described as "disturbing, inappropriate and irrational." The conduct, according to the judge, evinced an inability of J.G. to "control his emotions at a point in time when he should have been on his best behavior." The judge also relied upon as indicative of defendant’s emotional state, the two email communications in January 2015, where defendant assumed the role of the child as if the child were addressing the plaintiff. These emails predated the TRO.

While we defer to the trial judge's finding of credibility premised upon demeanor, we conclude that the judge placed undue emphasis upon defendant’s demeanor during the hearing as a factor for the issuance of an FRO. The utilization of this as a factor both ignores and is at odds with a court proceeding that, by any objective measure, is laden with emotion. Defendant’s stake in the outcome of the proceeding included the potential issuance of an FRO and the risk of loss of parenting time with his child. He was also defending himself against allegations of criminal conduct. When viewed through the prism of this crucible, we are satisfied that the judge’s focus upon defendant’s emotional behavior as a factor was misplaced. 

Moreover, the judge overlooked the absence of evidence of prior violence between the parties, and that the issuance of the TRO resulted in a termination by defendant of the "harassing" conduct, including any emails similar to the January emails. The judge also overlooked that plaintiff gave false testimony in support of her allegations of stalking and assault in the calculus of whether she required protection from "immediate danger or to prevent further abuse."  N.J.S.A. 2C:25-29(b).

We exercise broad review in considering "the trial judge's evaluation of the facts and the implications to be drawn therefrom." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). We are required to reverse where "the court ignores applicable standards[.]"  Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). As we are unpersuaded that the judge's finding of the need for the issuance for an FRO was grounded in the application of the appropriate statutory standards, we reverse and vacate the FRO.

Reversed. 1  The exact date of their separation is unclear from the record. Plaintiff testified they separated in February 2014.

2  Defendant admitted during his testimony that the civil restraints limited the parties' communications to parenting issues and that some of his emails were in violation of the restraints. 

3  We consider this to be a basis for the finding of "purpose" to harass by defendant rather than the state of mind of plaintiff. As the Court held in J.D., a "victim's subjective reaction alone will not suffice, there must be evidence of purpose." J.D., supra, 207 N.J. at 487.