Dispute over parents care not grounds for restraining order
R.G.,
Plaintiff-Respondent,
v.
R.G.,
Defendant-Appellant.
_______________________________
|
Argued January 19, 2017 - Decided
Before Judges Lihotz, Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County, Docket No. FV-18-0318-16.
APPELLATE DIVISION
|
The opinion of the
court was delivered by
LIHOTZ, P.J.A.D.
Defendant
R.G. appeals from the entry of a final restraining order pursuant to the
Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the
Act). On appeal, defendant argues the
Family Part lacked jurisdiction to enter a final restraining order and
maintains the altercation with plaintiff was not domestic violence. We reject defendant's jurisdictional
challenge, noting he and plaintiff, R.G., who are brothers, fall within the
amended jurisdictional provision of N.J.S.A. 2C:25-19(d). However, we agree the facts as presented do
not constitute conduct sufficient to support the entry of the order. Additionally, we address evidentiary rulings
warranting reversal.
We recount the
facts found in the trial testimony provided by plaintiff and defendant, along
with documents admitted into evidence during the final hearing.
Defendant and his
siblings grew up in New Jersey, but he moved to Long Island, New York,
approximately thirty-six years ago. His
younger brother, plaintiff, and his sister remained in New Jersey and
principally provided care for the parties' elderly parents. As their parents' health began to fail, the
bulk of responsibility fell to plaintiff, who was empowered to make decisions
for each parent regarding "physical care and treatment or to make
decisions to refuse medical care and treatment." Plaintiff also was named the attorney-in-fact
to handle his parents' affairs.
In spring 2015,
the parties' mother contracted pneumonia.
Unfortunately, this led to medical complications. When she was discharged from the hospital,
plaintiff commenced steps to place her in a skilled care facility. Defendant and his sister objected to
relocating their mother from her home and away from her husband. Soon the parties' sister was convinced their
mother and father needed a level of care neither she nor her brothers could
provide. Defendant, however, wanted to
explore possible alternatives to keep his parents in their own home.
Beginning in May
2015, defendant articulated his opposition to plaintiff's proposal to enroll
his mother in a facility and later move his father to the same place. Using text messages sent to his siblings, defendant
expressed his repudiation of the decisions and those who made them. Defendant testified he was making
arrangements to provide care for his parents when plaintiff sent him an email
stating he permanently moved their mother to the proposed facility. Defendant responded with disgust and
disappointment because plaintiff failed to consider his plan to provide care
for his parents in their home. The
charged comments also contain defendant's desire that plaintiff suffer in his
old age.
Plaintiff's email
sent ten days later included instructions to defendant for visiting his
parents. In part, the message was informational
and, in part, condescending. It also
contained directives so the parties would avoid seeing each other, apparently
because defendant previously texted he did not want to see plaintiff "or
else." Defendant's response to
plaintiff's email was crude, defensive, and angry.
Also introduced at
trial were copies of several text messages sent by defendant to plaintiff and
his sister. However, the copies of the
messages in the record do not include any prompting texts from plaintiff or
plaintiff's replies; we are given only text messages sent by defendant.
Defendant did not
deny he sent the text messages, which were admitted into evidence. Their content, in part, contains coarse,
gutter language and name calling. Some
texts include defendant's demands for financial documents and state his
intention to engage lawyers and to inform Medicare and Medicaid about his
parents' assets, implying plaintiff and his sister had not been forthright in
making disclosures. In a prickly and
foulmouthed way, the texts convey defendant's displeasure his mother was taken
from her home, she was not encouraged to be mobile but mostly kept in a
wheelchair, and his father was not told his wife would never return home. Further, defendant relates his belief his
father was left alone, and plaintiff was ignoring defendant's calls and
demands.
Plaintiff included
one comment he sent, that informed defendant his calls woke their father and
rhetorically added, "you need to harass dad also?" In response, defendant wrote:
I luv to harass u now since u cannot speak like a man
It will get worse and worse
Stand up to your brother like a man and discuss this U r
making it worse
U owe better to ur parents
There
are other texts, which have none of these traits. Rather, they convey defendant's desire to
provide care for his parents or reflect bitterness because of the decisions
plaintiff made.
On September 5, 2015, defendant and his wife travelled to New
Jersey to visit his parents, arriving at the facility in the afternoon. Plaintiff took defendant's wife aside to
explain his parents' conditions and benefits provided by the facility. Plaintiff testified: "All of a sudden
[defendant] comes charging in, getting in my face in a rage." Defendant told his wife plaintiff was "a
liar," and she should not "listen to him." Plaintiff's testimony recounted the exchange
stating, as he spoke, defendant repeatedly held an open hand like "a
slap" right next to plaintiff's face, or held his hand in a fist, as if he
were going to hit plaintiff. The
argument, where both brothers were yelling, continued in front of the
facility's residents and nurses. A nurse
instructed them to leave. Defendant went
outside and plaintiff followed. As the
argument continued, plaintiff asked defendant if he would hit him in front of
their parents or whether he would "do it [hit him] in front of a
cop." Defendant "shoved"
him. Plaintiff stated defendant shoved
him six times, during two of which he was knocked over and his glasses fell
off. Police were called and according to
plaintiff, defendant was charged with simple assault.
Plaintiff responded affirmatively on direct to a series of
leading questions posed by his attorney.
He stated "yes," when asked whether he interpreted defendant's
texts and conduct as posing a threat, whether the actions made him fear for his
safety and well-being, and whether it caused him to fear for the safety and
well-being of his family. Finally, he
responded "yes" when asked if he believed a restraining order was
necessary.
Plaintiff could not relate any history of domestic violence
between himself and defendant. He
admitted their relationship was good until their mother became ill in May
2015. He then testified, plaintiff's
nephew, defendant's son, obtained an order restraining defendant from contact
with him and his family, two years earlier.
Plaintiff went on to detail this altercation.
Defendant testified. He noted plaintiff's series of text messages
and emails omitted information plaintiff sent, which goaded his responses. He explained plaintiff decided he no longer
wanted to care for their parents and sought a resolution to aid himself and his
wife, by rejecting defendant's alternative plan to allow their parents to stay
together in their own home. Defendant
stated plaintiff "got extremely pissed-off" because defendant wanted
his mother to stay in her home. Defendant
mentioned he felt he was "kicked in the teeth," his thoughts were
"poo-pooed," and he felt "sandbagged" by plaintiff and his
sister, as they did not even consider his proposal for their parents' care. He also objected because plaintiff and his
sister were not honest with his parents about what was happening. He made requests of his siblings "two or
three times" to do small things that would make his mother's surroundings
more comfortable. He believed plaintiff
acted for his own benefit, not in his parents' best interests.
Defendant admitted he resented plaintiff's decision to send texts rather than calling to discuss these
problems, which defendant felt signaled "a total lack of
respect." He admitted he was
"very angry" during the September 5, 2015 altercation, but asserted
plaintiff was also yelling, showed no fear, and acted to provoke him. Plaintiff would not leave defendant alone
with his parents and even followed him when he walked away. Defendant admitted he shoved plaintiff more
than once, but not six times. Defendant
also acknowledged a restraining order, which was about to expire, was entered
in New York because he slapped his adult son, though he denied injuring his son
or smashing his car as plaintiff asserted.
At the conclusion of the testimony, the trial judge entered
an oral opinion. He concluded the court
had jurisdiction, even though the parties had not resided together for more
than thirty years. He also concluded
defendant engaged in an act of harassment by telling the
plaintiff on several occasions the following:
Calling him a pompous asshole. Calling him a pompous ass wipe. "That's
at all [sic] self-righteous asses, you guys thin[k] your shit doesn't
stink."
The factual support for finding defendant committed the predicate act of
harassment included this cited language from one email sent by defendant to
plaintiff:
What do you think that I am not going to take care of him
[their father] while he's with me. Your
email sounds like you are lecturing me and telling me how to take care of
him. You righteous prick. You and your wife always seem to have a
better life chip on your shoulders and that your shit didn't [sic] stink. Your shit smells like mine, you asshole. You are the last one who should be lecturing,
you drunk bastard. Stop the
bullshit. And your family know [sic]
better how to take care of dad.
The judge also recited this language from defendant's texts:
I will tear our family apart.
. . . .
I will break you financially, morally, physically
and mentally.
On July 12th, "I love to harass you
since you cannot speak like a man, stand up to your brother and discuss
this. It'll get worse and worse."
On June 27th, "I will come down
there real soon."
On June 13th, "This is not
done. I will tear our family apart. Get
ready."
And June 12th, "I feel like coming
to you and slapping you silly."
Finally. the judge found the September 5 shoving amounted to a simple
assault.
Having concluded plaintiff proved acts of domestic
violence occurred, the judge made findings on the second Silver[1]
prong, that is, whether there was immediate danger, which he stated was not
"self-evident." The judge
relied on the alleged conduct between defendant and his son, as proof of prior
domestic violence, and noted defendant's escalating threats, and the parties'
"communications culminat[ed] in a physical dispute." Accordingly, the judge concluded plaintiff
proved an immediate danger, warranting entry of a final restraining order.
Defendant filed this
appeal challenging the final domestic violence restraining order filed on
September 17, 2015. He argues, the
Family Part lacked jurisdiction to entertain plaintiff's complaint, evidence of
the incident involving his son was not relevant and was erroneously considered,
and the judge mistakenly found an immediate danger warranting the entry of a
final domestic violence restraining order.
Our review of a Family Part judge's findings following a
bench trial is a narrow one. Cesare v. Cesare, 154 N.J. 394, 411
(1998). "In our review of 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 upon those
findings." D.N. v. K.M., 429
N.J. Super. 592, 596 (App. Div. 2013), certif. denied, 216 N.J.
587 (2014). In other words, we will neither "'engage in an independent
assessment of the evidence as if [we] were the court of first instance,'" N.J.
Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427,
433 (App. Div. 2002) (alteration in original) (quoting State v. Locurto,
157 N.J. 463, 471 (1999)), nor "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, supra, 154 N.J.
at 412 (quoting Rova Farms Resort, Inc. v. Inv[r's] Ins. Co. of Am., 65 N.J.
474, 484 (1974)). On the other hand,
where our review addresses questions of law, a "trial judge's findings are
not entitled to that same degree of deference if they are based upon a
misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J.
Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)).
[N.T.B. v. D.D.B., 442 N.J. Super. 205,
215-216 (App. Div. 2015).]
Defendant's
jurisdictional challenge focuses on the parties' relationship, arguing
plaintiff does not meet the statutory definition of a "victim of domestic
violence." Applying traditional
principles of statutory construction, we examine the statute's plain language,
which is generally the best indicator of the Legislature's intent. DiProspero v. Penn, 183 N.J.
477, 492 (2005). The words used in the
Act are given their "ordinary meaning and significance", and we must
"read them in context with related provisions so as to give sense to the
legislation as a whole." Donelson
v. DuPont Chambers Works, 206 N.J. 243, 256 (2011) (quoting DiProspero,
supra, 183 N.J. at 492).
Plaintiff's
counsel points out the Act was recently amended, and modifications became
effective prior to the September 5, 2015 incident. See L. 2015, c. 98 § 2,
eff. Aug. 10, 2015. The amendment
created a significant change to the definition of a "Victim of Domestic
Violence," N.J.S.A. 2C:25-19(d), which we agree resolves the
jurisdictional issue presented.
Formerly, the
statute defined a victim of domestic violence as "a person . . . who has
been subjected to domestic violence by . . . any person who is a present or
former household member." N.G.
v. G.P., 426 N.J. Super. 398, 409 (App. Div. 2012) (quoting N.J.S.A.
2C:25-19(d) (1994), amended by L. 2015, c. 98 §2, eff.
Aug. 10, 2015). Courts struggled to
determine the reach of this provision, especially when deciding what
relationships fell within the net of "former household members." Ibid. ("In determining whether a
defendant is a 'former household member' under the Act, the inquiry should be
whether the 'perpetrator's past domestic relationship with the alleged victim
provides a special opportunity for abusive and controlling behavior.'")
(quoting Tribuzio v. Roder, 356 N.J. Super. 590, 595 (App. Div.
2003) (citations omitted)).
The 2015
amendments clarified the statutory definition to end debate regarding the scope
of coverage of "present household member" by redefining a
"Victim of domestic violence" to mean
a person protected under this act and shall include any
person who is 18 years of age or older or who is an emancipated minor and who
has been subjected to domestic violence by a spouse, former spouse, or any
other person who is a present household member or was at any time a household
member.
[N.J.S.A.
2C:25-19(d).]
Defendant's attack
here refers to the prior version of the statute, making his arguments and prior
case law interpretations inapposite.[2] We conclude the statutory amendments express
the Legislature's intent to broaden the application of this remedial Act. We are required to construe its provisions liberally. Cesare, supra, 154 N.J.
at 400. See also N.J.S.A.
2C:25-18 (reciting the legislature's intent to provide victims the maximum
protection from domestic abuse).
Consequently, we conclude the Family Part properly exercised
jurisdiction over this dispute.
Next, defendant
argues testimony regarding the restraining order obtained by his son was not
relevant to this dispute, and its introduction interjected inadmissible
prejudicial inferences regarding defendant's behavior. Plaintiff argues the testimony was limited,
and its admission did not represent an abuse of discretion.
We note defendant,
who represented himself before the trial judge, did not raise this issue. "Because defendant did not raise this
argument below, this issue is reviewed under the 'plain error' standard, which
provides reversal is mandated only for errors 'of such a nature as to have been
clearly capable of producing an unjust result.'" State v. Green, 447 N.J. Super.
317, 325 (App. Div. 2016) (citing R. 2:10-2).
The Act permits
consideration of "[t]he previous history of domestic violence between
the plaintiff and defendant, including threats, harassment and physical
abuse[.]" N.J.S.A.
2C:25-29(a)(1) (emphasis added). Also
admissible is "[t]he existence of a verifiable order of protection from
another jurisdiction." N.J.S.A.
2C:25-29(a)(6). However, in this matter,
the admission of evidence of purported domestic violence between defendant and
a third party other than plaintiff and the trial judge's reliance thereon
presents several problems compelling us to reverse.
First,
"[e]vidence of a person's character or character trait . . . is not admissible
for the purpose of proving that the person acted in conformity therewith on a
particular occasion . . . ." N.J.R.E.
404(a). The rule specifically excludes
admission of evidence regarding other wrongs or acts "to prove the
disposition of a person in order to show that such person acted in conformity
therewith." N.J.R.E.
404(b). The rule allows, however, admission
of evidence of other wrongs provided the evidence shows "proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of
mistake or accident when such matters are relevant to a material issue in
dispute." Ibid.
When considering
the admissibility of evidence of other crimes or wrongs under N.J.R.E.
404(b), courts are instructed to apply the standard adopted by the Supreme
Court in State v. Cofield, 127 N.J. 328 (1992), which requires
careful analysis of four factors:
1. The
evidence of the other crime must be admissible as relevant to a material issue;
2. It must be
similar in kind and reasonably close in time to the offense charged;
3. The
evidence of the other crime must be clear and convincing; and
4. The
probative value of the evidence must not be outweighed by its apparent
prejudice.
[Cofield, supra, 127 N.J. at 338
(citing Abraham P. Ordover, Balancing the Presumptions of Guilt and
Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L.J., 135, 160
(1989)).]
If the trial judge conducts an
appropriate analysis under Cofield, this court will not disturb the
judge's ruling on the admissibility of 404(b) evidence, absent a "clear
error of judgment."[3] State v. Marrero, 148 N.J. 469,
483 (1997).
Although N.J.S.A.
2C:25-29(a)(1) permits the introduction of evidence of the "previous
history of domestic violence," it does not authorize introduction of evidence
regarding a defendant's past altercations with others. Rather, N.J.S.A. 2C:25-29(a)(1) and
(6), limits the trial court's consideration of evidence to "the previous
history of domestic violence between plaintiff and defendant," and the
introduction of a "verifiable order of protection from another
jurisdiction," respectively. This
is "[b]ecause a particular history can greatly affect the context of a
domestic violence dispute," thus, "trial courts must weigh the entire
relationship between the parties and must specifically set forth their findings
of fact in that regard." Cesare,
supra, 154 N.J. at 405.
Any other evidence presented must meet the test for admission as
provided by our Rules of Evidence. See
N.J.R.E. 101 to 1103.
Plaintiff's
testimony describing an incident between defendant and defendant's son was not
permitted by N.J.S.A. 2C:25-29(a)(1).
Nor was it offered to be used for something other than proof of
defendant's bad character. Indeed, no Cofield
analysis was made by the judge prior to the introduction of the evidence. In fact, the judge made no specific review of
the relevance or admissibility of the proffered bad acts evidence.
Second, our
careful review of the record reveals no foundation established plaintiff
testified based upon his personal knowledge.
See N.J.R.E. 602 ("[A] witness may not testify to a
matter unless evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter."). Plaintiff never stated he was present and
witnessed the events between defendant and his son. In fact, he was never asked to provide a
foundation for the testimony. In our
view, plaintiff was repeating what others told him. Such testimony represents inadmissible
hearsay. N.J.R.E. 802
("Hearsay is not admissible except as provided by these rules or by other
law.").
Contrary to
plaintiff's assertion, the facts at hand are unlike the statements offered by
the plaintiff in Rosiak v. Melvin, 351 N.J. Super. 322 (Ch. Div.
2002). In Rosiak, the defendant told
the plaintiff he had assaulted his first wife.
This admission provided context for the plaintiff's fear of statements the
defendant later made to her, when they ended their relationship. Id. at 324-25. In this matter, plaintiff's statements amounted
to nothing more than what he was told by others, not what he was told by
defendant.
We also reject the
notion defendant's responsive statements to plaintiff's testimony, admitting he
slapped his son and a restraining order was about to expire, are curative. For these reasons, we find no basis for the
admission of plaintiff's testimony regarding defendant's alleged history of
domestic violence.
Further, when
determining the need for a final restraining order, a matter the judge
characterized as "not self-evident," the judge specifically relied
upon "the prior history." However,
there was no prior history between these parties, who, according to plaintiff,
enjoyed a "good" relationship prior to their mother's latest
illness. The judge did not identify what
he meant by "given the prior history." Certainly, the reference encompassed
plaintiff's irrelevant and inadmissible hearsay testimony. Although we are aware of the challenges posed
when one party in a trial is self-represented, the judge, as gatekeeper, must
assure a fair process. See D.N.,
supra, 429 N.J. Super. at 602.
We conclude the
trial judge abused his discretion in permitting the introduction of inadmissible
evidence of defendant's prior bad acts in the form of hearsay. N.J. Div. of Youth & Family Servs. v.
I.H.C., 415 N.J. Super. 551, 571 (App. Div. 2015). Further, the necessary finding of a need for
a final restraining order was not based on admissible, substantial, and
credible evidence, Cesare, supra, 154 N.J. at 411-12, but
rather upon inadmissible testimony as suggesting a pattern of abuse. We conclude this rises to plain error and are
constrained to reverse the order.
Defendant
next argues the trial evidence does not support the necessary findings required
by Silver to support entry of a final restraining order. Silver, supra, 387 N.J.
Super. at 126-27. This court made
clear "the commission of any one of the predicate acts enumerated in N.J.S.A.
2C:25-19(a) does not automatically warrant issuance of a domestic violence
restraining order." Id. at
124 (citing Corrente v. Corrente, 281 N.J. Super. 243, 248 (App.
Div. 1995)). Thus, the trial court must
find a predicate offense and also find a basis, upon the history of the
parties' relationship, to conclude the safety of the victim is threatened and a
restraining order is necessary to prevent further danger to person or
property. Id. at 125-26.
Here, the trial
judge concluded defendant committed two predicate acts, harassment and simple
assault. We consider the evidence supporting
these offenses.
"Harassment is the most frequently reported predicate
offense among those statutorily recognized in N.J.S.A. 2C:25-19 as a
basis for a finding of domestic violence."
L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533-34 (App.
Div. 2011) (citing J.D. v. M.D.F., 207 N.J. 458, 476
(2011)). The petty disorderly persons
offense of harassment requires a person,
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;
b. Subjects another to striking, kicking, shoving, or other
offensive touching, or threatens to do so; 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.]
In this matter, we infer the trial judge found defendant
violated subsection (c) of N.J.S.A. 2C:33-4, as subsection (a) is
generally focused on the mode of speech employed, and not a statement's
content. State v. Hoffman, 149 N.J.
564, 583-84 (1997). Examining subsection
(c), there is no dispute defendant authored and sent the text messages at issue
and almost all content is offensively coarse.
The question for determination, however, is whether defendant sent the
message with the intent to harass. N.J.S.A.
2C:33-4. Our review of the record
reveals no evidence to support this necessary element, which leads us to
reverse. Cesare, supra,
154 N.J. at 412.
The Supreme Court has emphasized the care a trial court must
exercise to distinguish between ordinary disputes and disagreements between
family members and those acts that cross the line into domestic violence. J.D., supra, 207 N.J. at
475-76. A plaintiff's assertion he or
she felt harassed is insufficient to satisfy the statutory element. Id. 484. As the Court held, a "victim's
subjective reaction alone will not suffice; there must be evidence of the
improper purpose." Id. at
487.
When stating his findings, the trial judge listed some of
defendant's text messages and recited excerpts from one of defendant's
emails. Relying on these excised
statements, he concluded defendant committed harassment. We disagree.
Importantly, defendant did not initiate the email conversations,
yet the factual findings fail to mention the content of the precipitating
emails from plaintiff. As to the text
messages, again the judge's findings do not mention plaintiff's transmissions,
leaving us unsure whether the judge reviewed plaintiff's side of the
conversation. The record provided on
appeal includes only select portions of the defendant's transmission and almost
all of plaintiff's comments are blurred or illegible, except for one or two,
which apparently suggest support for his complaint. Thus, we are unable to analyze the entire text
conversations to determine whether the context shows defendant was sending
harassing communications.
We have no doubt the divergent views regarding placing their
parents in a facility was emotional and highly stressful for both
parties. We also do not discount
defendant's inappropriate expressions of anger and disgust for plaintiff's
decision.
Vulgar name-calling alone is not domestic violence. E.M.B. v. R.F.B., 419 N.J. Super.
177, 182-83 (App. Div. 2011). A
fundamental element making a communication criminal harassment is the purpose
to harass. "'[P]urpose to harass'
is critical to the constitutionality of the harassment offense." State v. Castagna, 387 N.J. Super.
598, 606 (App. Div.), certif. denied, 188 N.J. 577 (2006). See also State v. L.C., 283 N.J.
Super. 441, 450 (App. Div. 1995) (holding the harassment statute was not
enacted to "proscribe mere speech, use of language, or other forms of
expression"), certif. denied, 143 N.J. 325 (1996).
Because direct proof of intent is often absent, "purpose
may and often must be inferred from what is said and done and the 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 (citations
omitted). See also H.E.S. v.
J.C.S., 175 N.J. 309, 327 (2003) (the purpose to harass may be
inferred from "common sense and experience."). However, "mere awareness that someone
might be alarmed or annoyed is insufficient." J.D., supra, 207 N.J. at
487 (citing State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div.
1989)). That is, a plaintiff's
subjective reaction to the conduct, standing alone, is insufficient to
establish a defendant acted with improper purpose. Ibid.
The text messages introduced into evidence convey defendant's
concern for his parents' needs and feelings about permanently leaving their
home. They also express frustration
because defendant believed plaintiff was ignoring his phone calls and possibly
isolating him from his father. Moreover,
they are crude, rude, and vulgar.
However, isolating the latter expressions as establishing harassment,
without reviewing the surrounding context, including plaintiff's preceding
communications, is problematic. See
L.M.F., supra, 421 N.J. Super. at 534 ("Our ability
to instantaneously and effortlessly send electronic messages has created a
gateway unfettered by reflection and open to rash, emotionally driven
decisions."). Even the comments
listed in the judge's findings as apparently representing threats (i.e.,
"I will tear our family apart" and "I will break you
financially, morally, physically and mentally") are preceded by
defendant's assertion of his intended legal action based on purported
misfeasance by plaintiff.
In this matter, the judge made no findings to support a
purpose to harass. Other indicia that
might circumstantially prove such a purpose, such as plaintiff telling
defendant to stop his texts, is also absent.
Overall, we conclude the record fails to establish the emails and texts
were designed to harass plaintiff.
The Act "is not designed to interdict all forms of
unpleasant exchanges between parties."
Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div.
2004). Further, it "is not a primer
for social etiquette and should not be used as a sword to wield against every
unpleasant encounter or annoying interaction that occurs between household
members . . . ." Ibid. A mere expression of anger between persons in
a requisite relationship is not an act of harassment. The court must "[d]raw[] 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.'" See
J.D., supra, 207 N.J. at 475 (quoting Corrente, supra,
281 N.J. Super. at 249-50).
The context of defendant's statements matters. Excising portions of his statements without
weighing the entirety of the comments, as well as whether they are responsive
to something sent by plaintiff, leads to an unsupportable result. We conclude the evidence in the record is
insufficient to show defendant acted with a purpose to harass plaintiff. N.J.S.A. 2C:33-4(c). The finding of harassment is reversed.
Our conclusion about the legal insufficiency of the record to
support harassment must not be misunderstood as sanctioning or excusing
defendant's manner of expressing himself.
His anger about being "sandbagged" on issues where he was
previously included is palpable. We
cannot overemphasize the impropriety of his expressions on the subject, which
we find were juvenile, uncouth, foulmouthed, insulting, and belligerent. None of these statements have a place in
civil discourse, despite the heightened emotionality of the disagreement.
Plaintiff also alleged defendant committed a simple
assault. A simple assault requires the
intent to cause bodily injury. N.J.S.A.
2C:12-1(a)(1). Here, plaintiff testified
defendant repeatedly "shoved" him during the course of their mutual,
heated exchange. Although defendant disagreed
on the extent of the physical contact, he admitted he repeatedly shoved
plaintiff and does not deny plaintiff was knocked to the ground. From this evidence, we can infer defendant's
conduct was purposeful. Accordingly, the
judge's finding defendant committed simple assault, a predicate act under N.J.S.A.
2C:25-19(a), is supported.
Commission of a
predicate act is necessary, but alone insufficient, to trigger relief provided
by the Act. Silver, supra,
387 N.J. Super. at 126-27 (stating once a plaintiff establishes a
predicate act, the court must determine "whether a restraining order is
necessary, upon an evaluation of the facts . . . to protect the victim from an
immediate danger or to prevent further abuse"). See also J.D., supra, 207 N.J. at 476 ("Merely
concluding that plaintiff has described acts that qualify as harassment and
omitting this added inquiry opens the door to potential abuse of the important
purposes that the Act is designed to serve and threatens to 'trivialize the
plight of true victims' in the process." (quoting Corrente, supra,
281 N.J. Super. at 250)).
Application of the Act is not automatic or rote. The second prong set forth in Silver
requires the conduct must imbued by a desire to abuse or control the
victim. Silver, supra, 387
N.J. Super. at 126-27.
[I]t is clear that the drafters of the law did not intend
that the commission of any one of these acts automatically would warrant the
issuance of a domestic violence order.
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.
[Corrente, supra, 281 N.J. Super. at
248.]
Testimonial evidence showing plaintiff feared his brother
consists of his one-word responses to counsel's series of leading
questions. His testimony lacks a basis
for the response. The record also
contains evidence directly refuting this response. For example, during the September 5 incident,
the argument was mutual and plaintiff followed defendant outside to continue
the argument despite the fact defendant walked away. Finally, the trial judge noted the tension and
stress of both parties during this difficult time.
In considering whether "immediate danger" was
present, the trial judge found:
In some cases that is self-evident. It's not so the case here. But I do find that, given the prior history,
given the escalating threats, the nature of the communications culminating in a
physical dispute, that the second prong of Silver is satisfied and there
is an immediate danger to this plaintiff warranting the exercise of a final
restraining order.
We have identified the erroneous
evidentiary rulings of a "prior history" and we have rejected defendant's
text messages evince criminal harassment.
After tearing away such factual support, the conclusion a final restraining
order was necessary to protect plaintiff crumbles.
While we find defendant's manner of expressing himself
unacceptable and repugnant, after considering the entire record, we cannot
conclude the parties' interaction on September 5 implicates the public policy
concerns identified by the Legislature, underpinning the need for a domestic
violence restraining order.
The ultimate issue is whether, in light of these factors,
the victim was, at the time of the precipitating event, subjected to potential
abusive and controlling behavior related to and arising out of the past
domestic relationship. If so, the victim
is in need of and entitled to the special protection provided by the Act.
[Tribuzio, supra, 356 N.J. Super. at
597.]
The critical fact absent
from the required analysis is a sufficient nexus between the predicate conduct,
in this case the September 5, 2015 shoving, and the domestic relationship
between the parties. The offense must be
tainted by a desire to abuse or control the victim because of their domestic
relationship. Here, defendant's actions
during this incident do not show a "pattern of abusive and controlling
behavior" of the kind intended to be prevented by the Act. Peranio v. Peranio, 280 N.J. Super.
47, 52 (App. Div. 1995); see also Cesare, supra, 154 N.J.
at 397; N.G., supra, 426 N.J. Super. at 409. Accordingly, we conclude the evidence is
inadequate to support a finding defendant's conduct constituted domestic
abuse. See N.T.B., supra,
442 N.J. Super. at 215-16 (holding not every dispute or disturbance
between family members is sufficient to warrant the Act's application).
|
In summary, defendant, by virtue of his familial relationship
with plaintiff, falls within the newly modified jurisdictional scope of the
Act. However, for the reasons stated,
the conflict set forth in this record is not tantamount to domestic violence
for which a final restraining order should be entered. Finally, our review does not lead to the
conclusion the evidence supported a separate finding a final restraining order
was necessary for plaintiff's immediate protection or to prevent further
abuse. See J.D., supra,
207 N.J. at 488.
Reversed.
[2]
In particular, Jutchenko v.
Jutchenko, 283 N.J. Super. 17 (App. Div. 1995), which involved adult
siblings who had not lived together since childhood. This court rejected the trial court's finding
of jurisdiction, reasoning, "we do not believe that the Legislature could
have intended the protections of the Act to extend to conduct related to a
dispute between two persons who have not resided together in the same household
for twenty years . . . ." Id.
at 20. The Act's amended jurisdictional
provisions cast doubt on the viability of this holding.
[3] Subsequent to issuing its opinion in Cofield,
the Court has instructed the second factor of the Cofield analysis,
regarding considerations of whether the conduct is "similar in kind and
reasonably close in time," is not required in every case implicating a Rule
404(b) dispute. See State v. Williams, 190 N.J. 114,
131-132 (2007).
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