Opinion
DOCKET NO. A-1035-13T4
04-30-2015
L. S., Plaintiff-Respondent, v. J. P., Defendant-Appellant.
Maccarone Law, attorneys for appellant (Joseph T. Maccarone and Joseph J. Maccarone, on the brief). Janet B. Coven attorney for respondent.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-002275-13. Maccarone Law, attorneys for appellant (Joseph T. Maccarone and Joseph J. Maccarone, on the brief). Janet B. Coven attorney for respondent. PER CURIAM
Defendant appeals from a September 20, 2013 final restraining order (FRO) entered against him, under the Protection of Domestic Violence Act, N.J.S.A. 2C:25-17 to -34. His appeal focuses on the court's finding that he committed the predicate act of harassment. See N.J.S.A. 2C:25-19(a)(13). We reverse and remand to the trial court for review and further fact finding.
Plaintiff and defendant were both married to other people when they had a love affair that lasted approximately one year. During that time, they exchanged over 31,000 text messages. The relationship was up and down and filled with arguments and reconciliations. Over time, their respective spouses, as well as plaintiff's son became aware of the affair. Plaintiff contends that at some point in early May 2013, she made it clear that she wanted to end all communication with defendant. She also contends that despite her wishes, defendant kept trying to communicate with her and harassing her. Defendant, on the other hand, argues that until plaintiff filed charges against him on May 29, 2013, they had an ongoing, although tumultuous, relationship. He maintains that they had sex together as late as May 20, 2013.
On May 29, 2013, a temporary restraining order was entered against defendant based on plaintiff's allegations of domestic violence, with the predicate act being harassment. Thereafter, the court held a six-day trial. On September 20, 2013, the trial judge placed an oral decision on the record. She found that even though plaintiff would often advise defendant that she no longer wanted to communicate with him, she would then "reach out to him," "say she loved him," and "[get] together with him again." Nevertheless, the judge found that from May 22 to May 29, 2013, when plaintiff went to the police, the communications from plaintiff made it clear that she wanted defendant to leave her alone. The judge continued that defendant should "have understood that his communications were not welcomed." Thus, the judge found defendant crossed the line from being a disappointed suitor, and that he was guilty of harassment. The judge then entered an FRO against defendant.
The language of the harassment statute, N.J.S.A. 2C:33-4, states in pertinent part:
[I]f, with purpose to harass another, [a defendant]:
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).]
Here, the judge found that defendant's conduct constituted harassment under both N.J.S.A. 2C:33-4(a) and (c). She focused her findings on the time frame when plaintiff made it clear to defendant she no longer wished to communicate with him. On the record, the judge read numerous portions of the texts. However, the messages read were all texts by plaintiff to defendant. The court also found that plaintiff became distressed by the "intensity of the communication." However, the judge did not make any findings concerning the messages defendant sent plaintiff or the context of their discussions.
We, of course, must and do defer to the trial judge's assessments of credibility and factual findings. In this case, however, there was no finding about the credibility of the parties. More importantly, there was no finding that defendant intended to harass or annoy plaintiff as required by the statute. That is a required step before entering an FRO. As set forth in Silver v. Silver,
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. See N.J.S.A. 2C:25-29a (stating that "the standard for proving the allegations in the complaint shall be by a preponderance of the evidence"). 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.'"
[387 N.J. Super. 112, 125 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 402 (1998)) (citations omitted).]
A second level of fact finding must then take place before an FRO is issued. In Silver, supra, we held that:
This second inquiry, therefore, begins after the plaintiff has established, by a preponderance of the evidence, the commission of one of the enumerated predicate acts "upon a person protected under this act by an adult or an emancipated minor [.]" N.J.S.A. 2C:25-19a. Although this second determination--whether a domestic violence restraining order should be issued--is most often perfunctory and self-evident, the guiding standard is 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 the victim from an immediate danger or to prevent further abuse. See N.J.S.A. 2C:25-29b.
[387 N.J. Super. at 127.]
Here, the judge recognized the two-step process set forth in Silver. Although she found a restraining order was necessary in the best interest of the plaintiff and her children, she made no factual findings as to how defendant's conduct was a threat to them. Since the history of the relationship affects the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties, and must specifically set forth their findings of fact in that regard.
We reverse and remand this matter to the trail judge for further review. The court must review the case and make a finding as to whether defendant had the requisite intent to harass plaintiff as set forth in N.J.S.A. 2C:33-4. All factual findings that support the grant or denial of a restraining order must be placed on the record.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION