I.P.P. V. R.AP. A-5569-09T3 May 10, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5569-09T3

I.P.P., Plaintiff-Respondent, v. R.A.P., Defendant-Appellant.

May 10, 2011

Submitted March 28, 2011 - Decided May 10, 2011

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-1803-10.

Toni Ann Marcolini, attorney for appellant.

Jeney, Jeney & O'Connor, LLC, attorneys for respondent (Robert J. Jeney, Jr., on the brief).

PER CURIAM

Defendant R.P. appeals the Family Part's issuance of a Final Restraining Order ("FRO") against her in favor of plaintiff, I.P., after a trial conducted pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"). For the reasons that follow, we affirm.

At the time of the trial in June 2010, the parties were married but separated and living in separate dwellings in Elizabeth. They are the parents of a daughter, who was then age eleven and residing with defendant. The parties evidently have had a volatile relationship. Defendant, in fact, procured an FRO against plaintiff in September 2009 after he physically assaulted her.

The FRO in the present matter was granted after a trial at which both parties were represented by counsel. According to plaintiff's proofs, on May 15, 2010, defendant, accompanied by the parties' daughter, unexpectedly arrived at plaintiff's girlfriend's home, which is also located in Elizabeth. Defendant beckoned to plaintiff, who was then in the backyard, calling him an "a**hole." Plaintiff approached her. At that point defendant thrust upon him a document that was related to charges for their daughter's hearing aid. Defendant threatened plaintiff that he would go to jail if he did not pay for the item. Defendant cursed at plaintiff, calling him a "motherf**ker." She knocked a beer out of one of plaintiff's hands and a cell phone out of the other. As plaintiff described it, defendant then came up to his face, screaming and yelling. She stopped after others who were present started to gather around. Defendant then left the premises with the daughter, who, according to plaintiff, appeared frightened. Plaintiff called the police, and he thereafter filed an application for a restraining order.

Plaintiff's narrative of defendant's aggressive outburst was corroborated at trial by the testimony of his girlfriend and his girlfriend's sister, both of whom attested to being on the premises at the time. The girlfriend recounted that she saw defendant arrive at her house, beckon to plaintiff, "pitch[] a paper on him," and then knock the cell phone and the beer out of his hands. She also heard defendant scream and curse, although she was too far away to understand defendant's exact words. Similarly, the sister recalled observing defendant come in through a gate, give plaintiff a document, scream and curse at him, knock down the phone and the beer he was holding, and then depart with the child.

Plaintiff testified that he was concerned for his safety and well being after this episode. He stated that he felt harassed by defendant, who, he lamented, was continuing to feel free to speak to him face-to-face, despite the fact that she herself has a restraining order forbidding their contact.

By way of illustration, plaintiff cited to two prior incidents. According to plaintiff, defendant accosted him in October 2009 outside of the hospital where his girlfriend works, cursed at him, and grabbed his work badge out of his car. Plaintiff testified that the second prior incident occurred in April 2010, when defendant pulled up next to his car as he was dropping his girlfriend off at her home, and then spewed profanities towards him and the girlfriend. Plaintiff filed a written report of this second incident with the local police, but he apparently did not obtain a restraining order until the present case.

Defendant emphatically denied going to the house of plaintiff's girlfriend on May 15, 2010, or causing any disturbance there. She insisted that she was elsewhere during the time span between 6:00 and 6:30 p.m., when plaintiff and his witnesses estimated that she had appeared at the girlfriend's premises. In support of her claimed alibi, defendant presented testimony from a neighbor, who recalled conversing with her from about 5:30 to 6:15 p.m. that day, and from her mother, who testified that defendant and the daughter had arrived at the mother's workplace in Westfield at "around" 6:45 p.m. Defendant further presented a receipt showing that she had purchased gasoline in Elizabeth at 6:31 p.m.

Defendant also presented testimony from a friend who had accompanied her on the date of the October 2009 incident. The friend explained that defendant had needed to go to the hospital that day. The friend was surprised to see plaintiff standing on the corner by the hospital. The friend recalled plaintiff and defendant shouting at each other outside of the hospital. The friend also recalled asking plaintiff to go away, and that plaintiff complied with the request.

After sifting through the proofs, the trial judge concluded that plaintiff had established acts of domestic violence by defendant, and that he was entitled to protection under the Act. Assessing the credibility of the witnesses, the judge "absolutely believe[d]" that defendant had come to the girlfriend's house on May 15, despite her claimed alibi. The judge found it "totally credible" that defendant had gone into the girlfriend's backyard without being invited, that she had cursed at plaintiff, and that she had knocked both the cell phone and the beer out of his hands. As part of her credibility analysis, the judge commented negatively about the demeanor that defendant exhibited during the trial, which included cursing at plaintiff while in the courtroom.

The judge found that plaintiff and his witnesses had been mistaken in their approximations of the time that defendant had appeared at the premises, thereby making the attempted proofs of alibi unavailing. The judge also credited plaintiff's account of defendant's prior wrongful acts in October 2009 and in April 2010, specifically noting with regard to the latter incident that she found the girlfriend to be a credible witness.

Based upon these factual findings, the trial judge was, in her words, "absolutely" persuaded that "there is a need for a restraining order" against defendant. The judge consequently issued such an FRO, prohibiting defendant from contacting, harassing, stalking, or threatening to harm plaintiff or his girlfriend. In her bench comments, the judge urged defendant to obtain therapeutic counseling. The judge also expressed concern about the deleterious impact that the hostile behavior of the parties  both of whom are now subject to a restraining order  could have upon their daughter, urging them to avoid future conflict.

Defendant now appeals, contending that the trial court's factual finding that she engaged in domestic violence is not supported by the record, and that restraints were unnecessarily imposed upon her.

Our standard of review in this domestic violence matter is exceedingly circumscribed. In particular, we must defer to the trial judge's factual findings unless they are shown to be so "clearly mistaken" or "wide of the mark" that are not reasonably supported by the record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)); see C.M.F. v. R.G.F., 418 N.J. Super. 396, 401 (App. Div. 2011). We must accord considerable weight to the trial judge's findings of credibility, given that the judge is in a unique position to evaluate the demeanor of the parties and the other witnesses. See Cesare v. Cesare, 154 N.J. 394, 412 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). As the Supreme Court has emphasized, we owe special deference to the expertise of the Family Part in making often difficult judgments about the lives of families and children. See E.P., supra, 196 N.J. at 104;Cesare, supra, 154 N.J. at 413.

Applying that circumscribed review standard here, we affirm the trial court's findings, as they are supported by substantial credible evidence in the record. The trial judge provided ample reasons explaining why she rejected defendant's attempted alibi, given the approximated nature of the time lines posited by several of the witnesses.

Although the judge did not explicitly classify defendant's wrongful conduct as harassment, the proofs adduced at trial sufficed to prove that she engaged in such harassment, one of the predicate offenses that can support a finding of domestic violence and the issuance of an FRO. See N.J.S.A. 2C:25-19(a)(13). Harassment is defined in the Criminal Code to encompass conduct in which a defendant, "with purpose to harass another":

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 (emphasis added).]

Here, the proofs found credible by the trial judge adequately established that defendant struck or "offensively touched" plaintiff's hands, yelled profanities or "offensively coarse" words at him, and otherwise engaged in a course of conduct designed to alarm or seriously annoy him.

Defendant's manifest desire to harass plaintiff, who was dating another woman, is amply reflected by the proofs of her behavior, her demeanor at trial, and the surrounding circumstances. Her harassing conduct is not excused by plaintiff's own prior acts of domestic violence, nor by his alleged failure to pay his child's medical bill. The cases cited in defendant's brief on this issue generally involved weaker claims of harassing conduct, and those cases do not undermine the judgment issued here.¹

Affirmed.

1 Our recent published opinion in E.M.B. v. R.F.B., ___ N.J. Super. ___ (App. Div. Apr. 19, 2011), reversing an FRO based upon allegations of harassment, is not helpful to defendant here. In E.M.B., the sole conduct alleged to be harassment was the defendant calling the plaintiff, his mother, a "senile old bitch." Id., slip op. at 6. Unlike the instant case, the defendant inE.M.B. did not physically strike the plaintiff. There was no credible proof that he acted with a purpose to alarm or seriously annoy his mother, id. at 7, nor any evidence that he had harassed her in the past. Id. at 8.

A.B. V. L.S.M. A-0223-10T3 May 6, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0223-10T3

A.B., Plaintiff-Respondent, v. L.S.M., Defendant-Appellant.

Argued March 15, 2011 – Decided May 6, 2011

Before Judges Parrillo and Espinosa.

On appeal from Superior Court of New Jersey, Family Division, Hunterdon County, Docket No. FV-10-000138-11.

Kenneth W. Thomas argued the cause for appellant (Lanza & Lanza, LLP, attorneys; Mr. Thomas, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from the entry of a final restraining order (FRO) against him that was based upon harassment, N.J.S.A.2C:33-4(a) and (c). For the reasons that follow, we do not find the evidence sufficient to support a finding of harassment underN.J.S.A. 2C:33-4(a) but affirm the entry of the order based upon N.J.S.A. 2C:33-4(c).

The parties lived together for approximately four years and had two daughters together. At the time of the FRO hearing, their daughters, "Heidi"¹ and "Barbie," were three years and twenty-two months old, respectively. Plaintiff had two other children, "Brenda," ten, and "Oscar," fourteen, and defendant had a daughter, "Susie," fourteen.

At the FRO hearing, plaintiff testified about an incident that occurred on August 13, 2010. She stated that when defendant came to pick up the children for parenting time that day, he told her he wanted to talk to her; that "he really, really missed [her] and he wanted to hug and kiss [her.]" She told him that she was not interested and had "no desire to have him touch [her.]"

At approximately 9:00 p.m. that evening, plaintiff received a text message from defendant. He stated that the girls forgot a teddy bear and blanket. She sent a text message back, asking if he needed them and he replied, "yes." Plaintiff brought her friend, Lori Ann Mortarulo, with her to defendant's residence. She explained:

Because every time he comes to my house he wants to hug me and he wants to come close to me and talk in front of the girls. And I don't want to. I keep telling him I don't want to.

Plaintiff stated that when she went to the door to hand him the items, defendant told her that the children were already asleep, which led her to believe that the call regarding the teddy bear and blanket was merely a ruse to get her to come to his home. He grabbed hold of her to keep her from leaving. She told him to "please stop and to please leave [her] alone, that [she didn't] want to be touched."

Mortarulo testified that when plaintiff went to the door, defendant came outside and, instead of taking the teddy bear and blanket, he grabbed plaintiff's wrist. Plaintiff backed away and defendant moved in closer, giving her a bear hug. Mortarulo testified that plaintiff's hands went down to her side, stiff, and that when she returned to the car, plaintiff was shaky, pale, and upset.

Plaintiff applied for and obtained a temporary restraining order (TRO) on August 16, 2010. Defendant acknowledged service of the TRO on the same date.

At the FRO hearing, plaintiff also testified about incidents that occurred both before and after August 13.

Plaintiff testified that, on June 18, 2010, she returned home after picking up Oscar and his friend from school. Defendant was waiting, angry that she had picked up her son's friend and had not picked up his daughter. He called plaintiff a "bitch" and told her that she had ruined his daughter's birthday. Plaintiff admitted that she "may have" yelled and cursed at him as well. Defendant attempted to leave the driveway in plaintiff's car, but got a flat tire by driving over a bicycle and had to return to the driveway. When he put a jack under the car to change the tire, plaintiff told him to stop, that he had done enough damage for one day. She attempted to take the jack and he pushed her on her shoulders. When she tried to remove the jack a second time, he pushed her again. At this time, plaintiff threw Heidi's "sippy cup" at defendant, breaking his nose. Defendant left with Heidi, stating that he was going to dinner and shopping.

That evening, defendant told plaintiff that they had to talk. He offered her two choices - either he would leave or he was going to live in the basement. She replied that he should leave. Following this incident, each of the parties applied for temporary restraining orders that were subsequently dismissed.

On or about August 7, 2010, defendant went to plaintiff's home, unannounced, shortly after 9:00 pm, and knocked on her bathroom window. He said that he wanted to sit and talk with her. Plaintiff testified that she told him, "I didn't want him around me, I don't want him anywhere near me, I had enough of him and his daughter, and I wanted them to leave me alone." She stated that he sent her a text message on his way home in which he said he had no idea how much he had hurt her and promised to leave her alone. However, the incident that prompted plaintiff to seek this restraining order occurred just six days later.

On another occasion, she went to pick up the girls from defendant's home with her son, Oscar. Plaintiff testified that defendant was crouching down behind the girls, grinning at her. She stated that she did not recognize her daughter; that defendant cut the "three year old's hair from halfway down her back to her shoulders and he gave her bangs straight across. And he also cut [the] 22 month old daughter's hair straight across the front and when it was wet it wasn't straight." She asked him what he had done to their hair. Plaintiff testified that he grinned at her, looked at her son and said, "how do you live with that bitch[?]" Oscar testified and corroborated his mother's account.

When asked why defendant had cut the girls' hair, plaintiff testified that defendant knew she liked Heidi's hair as it was and she thought it was "to harass [her] to get [her] to yell or do something that [she's] not supposed to in front of the girls." She said defendant thought it was funny; he was grinning at her when she got there.

Plaintiff testified that defendant cut Heidi's hair again on the Thursday prior to the FRO hearing, a date three days after she obtained a TRO. On this occasion, defendant cut an inch from one side of Heidi's hair, but not from the other side, and also cut her bangs again. Plaintiff also testified that, as she was attempting to get her daughters to come with her, defendant told Heidi that he did not know when he would see her again "because mommy was being mean and mommy was keeping her away from him." These statements were made despite the fact that defendant had parenting time every Monday and Thursday and alternate weekends pursuant to a court order.

Plaintiff testified further that defendant had sent her nasty emails on a regular basis, calling her names. In one email, he stated he was glad her dog ran away and got killed by a car, that even her dog ran away to get away from her because she is so mean.

Defendant testified that he did not ask plaintiff to bring a teddy bear to his home on August 13. He said he texted plaintiff to tell her Heidi had a difficult time falling asleep because she did not have her teddy bear. When plaintiff offered to bring it to his home, he accepted the offer. He admitted hugging her and said that her reaction "was strange because normally she accepts hugs but in this particular case her arms were straight down . . . ." Defendant denied that he grabbed her wrist and that plaintiff said anything to him about the hug. His purpose in hugging her was not to harass her but to thank her for bringing the teddy bear.

Defendant admitted going to plaintiff's home unannounced and knocking on her bathroom window in early August. He stated that plaintiff came to the door, hugged him, and started crying; that they sat and talked for approximately one half hour before plaintiff started to get angry and he decided to leave. Defendant denied plaintiff ever told him not to touch her.

Although defendant testified that things were going along well between them in early August, he admitted that he sent plaintiff an email on or about August 4 in which he said that even her own dog risked her life to get the hell away from plaintiff. Defendant stated that he apologized the next day.

Defendant admitted cutting his daughters' hair as part of "a beauty makeover" because his daughter asked him to cut her hair. He acknowledged that plaintiff was very angry when she saw the haircuts, yelled extremely loudly and stated that he ruined their hair. Defendant denied cutting his daughter's hair a second time or telling his daughter that he did not know when he would see her again.

The court rejected defendant's denials and versions of events, finding plaintiff's testimony to be more credible. The court concluded that defendant had committed acts of harassment under N.J.S.A. 2C:33-4(a) and (c) and entered an FRO. In this appeal, defendant argues the FRO was entered erroneously because he did not harass plaintiff, specifically, that he did not act with the requisite purpose to harass.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court," N.J. 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 . . . ." N.J. 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 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.

N.J.S.A. 2C:33-4 states, in pertinent part:

[A] person commits a petty disorderly persons offense 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;

. . .

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[Emphasis added.]

Under either section of this statute, a defendant must act with the purpose to harass. Subsection (a) targets specific modes of speech, including the use of "offensively coarse language," and requires that the manner of speech be "likely to cause annoyance or alarm." The requisite purpose to harass is satisfied by a purpose "to disturb, irritate, or bother." State v. Hoffman,149 N.J 564, 580 (1997). Subsection (c) requires a course of repeated conduct, motivated by a higher degree of purpose, "to alarm or seriously annoy." See ibid.

N.J.S.A. 2C:33-4(a) criminalizes speech that invades one's privacy by "its anonymity, offensive coarseness, or extreme inconvenience" because it is "aimed, not at the content of the offending statements but rather at the manner in which they were communicated." Id. at 583-84 (quoting State v. Fin. Am. Corp., 182 N.J. Super. 33, 39-40 (App. Div. 1981)). There is no evidence that any of defendant's communications were sent anonymously, at extremely inconvenient hours, or "in any othermanner likely to cause annoyance or alarm." Therefore, under the facts as found by the court here, the only communications that could arguably support a finding of harassment under subsection (a) occurred when defendant referred to plaintiff as a "bitch" or used other "nasty names." The evidence reflects a tumultuous end to the parties' relationship in which coarse language is attributed to and admitted by each of them. Within the context of the parties' disintegrating relationship, we are satisfied that these comments did not constitute acts of harassment under N.J.S.A. 2C:33-4(a).

We next turn to consider the sufficiency of the evidence to support a finding of harassment under N.J.S.A. 2C:33-4(c). The evidence deemed credible by the trial court reflected that, at least as early as August 7, plaintiff told defendant that she did not want him near her and wanted to be left alone. Nonetheless, as the trial court found, defendant created a pretext for plaintiff to come to his house just days later to deliver a toy for a child already asleep and used the occasion to hug her and attempt to hold her against her will. He engaged in additional conduct plainly designed to seriously provoke plaintiff. Defendant falsely cast plaintiff as a "mean mommy" who would deprive the children of parenting time with him. He gave their daughters haircuts that, at best, were amateurish, and at worst, "ruined" their hair, knowing that plaintiff would be upset. In short, defendant used their daughters as pawns, willingly subjecting them to emotional upset, if not psychological abuse, and needlessly bad haircuts, with no apparent purpose other than to achieve the desired effect upon plaintiff. We need not discuss defendant's email regarding plaintiff's dead dog since even he has acknowledged his regret for sending the email. The evidence is therefore sufficient to prove that defendant "repeatedly committed acts with purpose to alarm or seriously annoy" plaintiff, constituting harassment under N.J.S.A. 2C:33-4(c).

Affirmed.

1 Fictitious names are used for the children to protect their privacy.

M.A. V. D.M.A. A-0081-10T1 May 12, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0081-10T1

M.A.,

Plaintiff-Respondent/

Cross-Appellant,

v.

D.M.A.,

Defendant-Appellant/

Cross-Respondent.

Argued March 7, 2011 – Decided May 12, 2011

Before Judges A.A. Rodríguez and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-001343-10.

Marcy M. McMann argued the cause for appellant/cross-respondent (Stephen S. Weinstein, P.C., attorney; Ms. McMann, on the brief.)

Clifford J. Weininger argued the cause for respondent/cross-appellant (Mr. Weininger, attorney; Joseph J. Fritzen, on the brief).

PER CURIAM

Defendant appeals from the July 30, 2010 domestic violence final restraining order (FRO) issued against him in favor of plaintiff. Plaintiff cross-appeals from the judge's denial of her request for counsel fees and costs. We reverse the FRO, thereby rendering the cross-appeal moot.

At the time of the FRO hearing, plaintiff was sixteen and defendant was eighteen-and-a-half years old. They had been in a "boyfriend/girlfriend relationship" for "about a year." Plaintiff testified that she would frequently accompany defendant when he pawned jewelry that he told her he had stolen from his grandmother. She was aware that defendant "had a drug problem" and knew that he spent the money on Oxycontin, as she had seen him "high" on that drug "many times." At some point, plaintiff became aware that defendant was stealing jewelry from her home and pawning it.

On June 5, 2010, defendant was at plaintiff's home "just hanging out." When defendant attempted to pull plaintiff's dog out from under a desk, the dog bit him twice. Plaintiff "immediately grabbed [her] dog . . . and got him away from everything because [she] didn't know what was going on." Defendant was upset and told plaintiff and her mother that he "want[ed] to kill [the] f-ing dog."

Plaintiff spent that night at defendant's house; she came home briefly the following morning and saw her dog, who seemed "fine again running around the house." Plaintiff then left with her mother to spend the day at her grandmother's home. Her mother dropped plaintiff at defendant's house around 8:30 p.m.; her mother went home and then called plaintiff "hysterically screaming and crying that the dog [wa]s dead." Defendant then drove plaintiff home. About two weeks later, defendant admitted that he "beat" plaintiff's dog to death.

Plaintiff did not tell anyone about defendant killing her dog at that time because she "believed that these were just issues [defendant] had . . . that he needed to deal with and he needed help with them. And . . . [she] cared so much about him at the time."

On or about June 18, 2010, the parties were in an attic at defendant's house smoking a cigarette. Plaintiff "believe[d] [defendant] was high at the time." Defendant

lit the lighter and he held it lit and he said ["]you're going to remember me forever.["] [Plaintiff] had no idea that he was going to do that. [She] thought he was just saying that as in general boyfriend/girlfriend conversation.

He [held] the lighter lit for maybe a minute and . . . the metal [got] really hot. He let go of it and he jabbed it into [her] leg and [she] still ha[s] a scar[] two months later.

. . . .

[She] was really shocked at first. And [she] kind of . . . playfully . . . slapped him. But . . . after [she] showed [her] Mom and after . . . reporting everything to the [p]olice [she] realized that [it] is really dangerous to mess around with this kind of thing . . . .

On or about June 25, 2010, plaintiff was called into police headquarters to identify certain jewelry that defendant had been charged with stealing. At some point, plaintiff learned that defendant had stolen other property belonging to her parents, and she decided that she "couldn't take it anymore [sic]." On June 28, 2010, plaintiff obtained a temporary restraining order (TRO) against defendant.

Plaintiff stated that "looking back on [her] relationship with [defendant] . . . [she] ha[s] a lot of fear[.]" Because she had reported to the police that defendant stole jewelry from her home, she felt that "he's going to blame this all on [her]" and "come after [her] one day."

On cross-examination, plaintiff acknowledged that she had a close relationship with defendant's mother and communicated with her via Facebook. On June 27, 2010, plaintiff posted a message on Facebook to defendant's mother stating that the only reason she was pursuing a restraining order was because her parents were forcing her to do so. A few minutes later, plaintiff sent defendant's mother the following message:

"I'm thinking just to avoid any more s—t with my Mom that I’ll do what she wants me to do. And then like the next day or two I'll get the restraining order dropped . . . . If I can go in and drop it they won't even be notified and then everything will be okay with my Mom, and I’ll be able to see [defendant]."

She also told defendant's mother, "If I walk out of that court room saying he's not a threat to me, I'll never stop hearing it from them about how I'm basically not a member of the family any more . . . ."

In the early morning of June 28, the day plaintiff obtained her TRO, she sent a message to defendant's mother to "say good luck [to defendant] and [she] hope[s] for the best[,]" because he was "going to some interview." On June 29, plaintiff sent a message that she still loved defendant. However, she denied that she still loved him at the time of trial.

At the conclusion of plaintiff's testimony, defendant moved to dismiss the TRO, arguing that she had not established any predicate acts constituting domestic violence under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). Defendant also argued that plaintiff had failed to demonstrate a current need for the protection of a final restraining order under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). The judge denied the motion. Defendant then rested without calling any witnesses.

In his decision rendered from the bench, the judge noted at the outset that this "was a difficult case to analyze." He stated that the theft of the jewelry, the killing of plaintiff's dog and the burn with the cigarette lighter "suggest a very unhealthy situation" and that plaintiff's position that she "wants a restraining order" because she has "come to a new understanding of herself and her situation all make perfect sense." The judge "ha[d] a strong sense that somewhere, somehow there should be a way to end this unhealthy relationship."

The judge described defendant's killing of the dog as an "inappropriate and mean thing . . . to avenge himself against the dog. . . . [T]he larger portion of the motivation was that the dog bit him therefore the dog is going to get it and did." He then characterized the killing as "about as clear an act of domestic violence as there could be."

With respect to the theft of the jewelry, the judge noted that "there are many circumstances in which something like that can be done as an attack on the petitioner." He added that "the way to understand" the jewelry theft was, as plaintiff had testified, "for the purpose of funding a drug habit."

The judge opined that plaintiff "acquiesced" in the burning of her leg, which made it "harder to see that as an assault, although not impossible." He noted that "even after all of these events . . . [p]laintiff had occasion to say I still love . . . him."

The judge stated: "All that makes it difficult to accept these either individually or cumulatively as a basis for the relief." He noted, however, that plaintiff testified she has had a "change of heart" and is now afraid of defendant, and found her fear "objectively reasonable."

Regarding defendant's "intent," the judge noted that "the greater weight of the evidence is that the majority of the motivation was to accomplish those other ends I talked about drug habit [sic] and avenge [sic] against the dog." He further noted that there "seem[ed] to be an element of at least indifference to the [e]ffect on [plaintiff] and [her] family[,] [b]ut also . . . perhaps more than almost [sic] an element of control."

The judge then characterized the "thefts from the house and the killing of the dog" as "a course of alarming conduct[,]" noting that N.J.S.A.2C:33-4(c) "talks about a course of alarming conduct with a purpose to alarm or seriously annoy such other person." "[L]ooking at all the circumstances[,]" the judge found it "fair to conclude that . . . an element that was going on was a controlling and harassing element."

The judge concluded that he was "inclined to issue a restraining order under [h]arassment[,]" adding: "I reserve the right to entertain a motion for reconsideration . . . . My sense is this is an unusual case. I am announcing a judgment that I think is sensible under the law and under a broad common sense."

Plaintiff's counsel then asked for attorney's fees and punitive damages for the killing of the dog. The judge denied both requests.

On appeal, defendant contends that (1) he did not commit an act of domestic violence; and (2) a restraining order is not necessary to protect plaintiff. We concur with defendant on both issues.

Cognizant of our limited and deferential scope of review, Cesare v. Cesare, 154 N.J. 394, 413 (1998), we are nonetheless not satisfied that sufficient credible evidence exists in the record to support the judge's decision to issue an FRO. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Where, as here, we determine that "the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" we will intervene "to ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted).

Here, none of the three acts at issue — the theft of jewelry, the killing of plaintiff's dog, and the burning of plaintiff's leg with the cigarette lighter — was ever established as having been done with the "purpose to alarm or seriously annoy" plaintiff. N.J.S.A. 2C:33-4(c). The judge himself noted that the theft of the jewelry was to support defendant's drug habit; the killing of the dog was to "avenge" the dog having bitten defendant; and plaintiff "acquiesced" in the cigarette lighter incident.

Plaintiff testified that she was afraid of defendant because she had told the police he was the one who stole the jewelry; she stated that, despite the fact that they were engaged in a loving relationship during the time the three pertinent acts occurred, she now fears him because she has come to realize that he is controlling.

However, plaintiff never testified that she believed defendant committed any of the acts with the purpose "to alarm or seriously annoy" her. The theft of the jewelry upset her because defendant had lied to her about whose jewelry he had stolen and because her parents' possessions were involved. The death of her dog upset her greatly, but did not cause her to fear defendant as a result. The cigarette lighter incident took place during what she apparently considered a romantic exchange when defendant said he wanted her to remember him forever.

While these incidents may, as the judge found, have been signs of "an unhealthy situation," the record does not support the conclusion that any of them was committed with the requisite purpose sufficient to establish harassment under the Act. Where, as here, the judge found it "difficult to accept" those acts "either individually or cumulatively as a basis for . . . relief[,]" his ensuing cursory conclusion that they constituted "a course of alarming conduct" warranting entry of an FRO cannot reasonably said to be supported by the record.

N.J.S.A. 2C:25-29(a) provides that at an FRO hearing, "the standard for proving the allegations in the complaint shall be by a preponderance of the evidence." Here the judge did not articulate any standard of proof for his findings, let alone the statutorily required standard.

"Integral to a finding of harassment . . . is the establishment of the purpose to harass, which is set forth in the statute itself." Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995).

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. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.

[N.J.S.A. 2C:2-2(b)(1).]

To find that "defendant's purpose was to alarm plaintiff requires proof of anxiety or distress. The serious annoyance requirement 'under subsection (c) means to weary, worry, trouble, or offend.'" H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) (quoting State v. Hoffman, 149 N.J. 564, 581 (1997)). Nothing in this record evinces defendant's "conscious object" to "alarm or seriously annoy" plaintiff. N.J.S.A. 2C:33-4(c). No evidence satisfied the required proof elements. Nor, as noted, did the judge find by a preponderance of the evidence that they were met.

Having determined that the judge erred in concluding that defendant's conduct constituted the predicate offense of harassment under the Act and, therefore, the FRO must be reversed on that basis, we need not address defendant's second contention. We will note, however, that the judge failed to follow the two-step process required by Silver, namely:

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. . . .

. . . .

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. . . .

. . . .

. . . [T]he guiding standard is whether a restraining order is necessary . . . to protect the victim from an immediate danger or to prevent further abuse.

[Silver, supra, 387 N.J. Super. at 125-27.]

The judge never addressed the "second inquiry[.]" Id. at 126.

Reversed on the appeal; the cross-appeal is moot.