Opinion
DOCKET NO. A-0456-14T2
04-01-2016
T.W., Plaintiff-Respondent, v. M.W., Defendant-Appellant.
Ronald S. Heymann argued the cause for appellant (Heymann & Fletcher, attorneys; Mr. Heymann, of counsel and on the brief; Crystal G. Surface, on the brief). Brandon M. Fierro argued the cause for respondent (Lowenstein Sandler LLP, attorneys; Mr. Fierro and Michael J. Hampson, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-000189-15. Ronald S. Heymann argued the cause for appellant (Heymann & Fletcher, attorneys; Mr. Heymann, of counsel and on the brief; Crystal G. Surface, on the brief). Brandon M. Fierro argued the cause for respondent (Lowenstein Sandler LLP, attorneys; Mr. Fierro and Michael J. Hampson, of counsel and on the brief). PER CURIAM
Defendant M.W. appeals from a final restraining order (FRO) entered against him in favor of plaintiff T.W., pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (PDVA). Defendant claims the trial judge erred in considering a prior domestic violence complaint that was ultimately dismissed, and that the record does not support a finding of harassment. Because the trial judge was permitted, if not required, to consider past allegations of alleged domestic violence, and because the judge's decision is amply supported by evidence in the record, we affirm.
I.
At the time of the incident giving rise to this litigation, the parties had been married for twenty-four years, but plaintiff had filed for a divorce. The parties have four daughters, who then ranged in age from twenty to twelve, with the two youngest living at home. Defendant is a minister and has served as pastor of a local church for fifteen years.
At the FRO hearing, plaintiff testified that her relationship with defendant had steadily deteriorated and they had been sleeping in separate rooms for the last four years. In March 2013, after plaintiff went into her bedroom to have a private conversation with a friend, defendant removed the door handle from the bedroom door. Plaintiff testified that defendant "literally took all of the screws out and took the door handle off completely."
Defendant then began to leave a large hunting knife in various parts of the house including the bedroom and bathroom. Although plaintiff found the knife "alarming and intimidating," she did not try to remove the knife from the house or bring it to the police. She explained that she did nothing for "the same reason women stay in abusive situations for a long time, you don't know what to do."
Plaintiff testified that in March 2014, defendant grabbed the parties' eighteen-year-old daughter by the arms, "shook her violently and screamed at her . . . don't you disrespect me, you do what I tell you to." Defendant's anger was apparently triggered because his daughter did not unload the dishwasher quickly enough. After that incident, plaintiff realized "things were escalating . . . physically," and sensed a greater danger to her and her children. Plaintiff also explained that defendant routinely "ransack[ed]" her personal belongings and threw out or sold things without her consent.
Plaintiff previously filed a domestic violence complaint and obtained a temporary restraining order (TRO) after an incident on July 14, 2014. On that day, plaintiff attempted to speak with defendant about ending their marriage. Plaintiff stated that defendant called her a bitch and a whore, and she grabbed his cell phone as he was reaching for it. Plaintiff testified that defendant got up and started yelling at her, grabbed her wrists, crossed them in front of her, and shook them violently. He continued to scream obscenities, and then threw her down. A different judge dismissed the complaint and did not enter an FRO. Following this incident, defendant remained out of the home and had no contact with plaintiff.
Between August 10 and 17, 2014, plaintiff flew to Florida to take her eighteen-year-old daughter to college. The youngest child accompanied her, while plaintiff's sixteen-year-old remained home, cared for by plaintiff's mother. While plaintiff was away, defendant returned to the home. This made plaintiff's mother uncomfortable and she left, although she returned daily to check on the child.
When plaintiff returned, her mother told her that, while she was away, defendant had gone through her emails, made a copy of one, and gave it to her. Plaintiff testified that her mother told her that when defendant gave her the email, he said "now I have what I need . . . to crush [plaintiff] in [the] divorce."
Plaintiff was very upset and felt violated because her personal email account contained correspondence with her counselor and her divorce attorney, as well as financial information for her personal bank accounts, passwords, and "social, private . . . interactions." She testified that
every measure that I've tried to set up for protection . . . whether seeking out counselors . . . informing the church about what's going on, everything that I said about [wanting] some personal safety and security, this person . . . harms me . . . and hurts me, he finds a way to . . . unsettle[] and destroy.
After taking steps to leave the marriage and "provide some measures of protection" for herself, plaintiff testified that she felt defendant took away "the last measure of security that [she] felt like [she] had . . . ." Plaintiff explained that the home computer has separate accounts for each family member and a password is required to open her email account.
The email in question was to plaintiff's friend, J.C. Plaintiff explained that, after she filed for divorce, her relationship with J.C. evolved into an "inappropriate relationship" but she ended it because she "wanted to finish [her] divorce and focus on the kids."
Defendant had previously accused plaintiff of adultery and the accusation is included in the parties' divorce filing.
Plaintiff also testified that while defendant was in the home during her trip to Florida, he had thrown her bedding on the floor. After returning home from Florida, plaintiff contacted her attorney and some members of her church. On August 20, 2014, plaintiff filed a police report and a second domestic violence complaint.
Plaintiff's mother, P.J., testified and confirmed that she felt uncomfortable when defendant showed up unexpectedly at the home. She also identified the email defendant printed from plaintiff's email account in order to prove plaintiff's infidelity. P.J. could not recall whether defendant said something about harming plaintiff with the email, but she thought he was going to show the email to church elders.
P.J. also observed the hunting knife. Although she had never seen defendant act violently towards plaintiff, she had "seen him slam doors, or . . . leave in a huff or something." She never observed defendant mistreating the children, but testified that "he's rough" and "he doesn't realize his own strength . . . ." She recalled seeing defendant "yank [one of the children] out of the chair and take her down to her bedroom because she was being rude." P.J. testified that, after plaintiff filed the second domestic violence complaint, defendant contacted her and urged her not to testify at the hearing on the FRO "because he said then his lawyer would have to cross-examine [her] and that [she] might be embarrassed by it."
P.J. acknowledged a text message she sent to defendant while he was in the house in August asking him to wash the sheets and pillow cases before he left. She was unsure whether defendant actually washed the sheets before leaving. Finally, P.J. testified that she was shocked when she found out that defendant opened plaintiff's emails, and when she confronted defendant, he responded, "if she's stupid enough to leave it open when she's gone" then he could go into it.
Plaintiff called S.A.M.S., a friend of hers from church. S.A.M.S. testified that she was helping plaintiff pursue a graduate education and defendant belittled plaintiff's goals, suggesting that she could not succeed in getting a graduate degree. S.A.M.S. stated that plaintiff did not pursue the degree because of defendant's "constant sort of nitpicking" at her. She testified that it seemed as though defendant saw plaintiff's ambitions and plans for improvement "as a threat to him and to their relationship . . . and as he responded by sort of clamping down on her, she responded by sort of shutting down."
J.R., the assistant pastor at the parties' church, testified that defendant had been asked to take a sabbatical and to "step down from his duties."
Defendant testified that the hunting knife was given to him, and explained that he left it around the house because his "housekeeping is a little shoddy." He also claimed the knife has a screwdriver on the end that he uses around the house. He denied any intent to intimidate anyone. Defendant explained that he removed the door handle because plaintiff locked him out of the bedroom and prevented him from getting his clothes and other necessities. He claimed that he took the handle off to be able to get ready for work in the morning. Defendant acknowledged that when he was arrested following the July 2014 incident, he told the police he did not know anything about the hunting knife. He ultimately acknowledged the existence of the knife, but continued to deny that he knew where it was.
Defendant testified that on July 14, 2014, plaintiff confronted him in his bedroom regarding the divorce proceedings. He told her he was tired, and to let the attorneys "sort it out," but plaintiff insisted on talking, and ultimately she grabbed his cell phone from his hand. He asked for the phone back, but plaintiff held it out of his reach. When he took the phone back from plaintiff, he claimed he was "as delicate as possible taking the phone away from her against her will," and denied intentionally hurting plaintiff. After this incident, defendant chose not to return home because he knew plaintiff was "volatile and emotional."
Regarding plaintiff's email, defendant testified that while he was staying with his daughter, he went to the family computer to "check the weather or something," and when he refreshed the computer, plaintiff's email account was open. He admitted that he made a "bad choice" in deciding to look through plaintiff's emails, but he scrolled through and saw an email from J.C., who he believed to be plaintiff's paramour. He claimed he printed plaintiff's email and shared it with P.J. so she would "know the truth of our circumstance."
He explained that P.J. told the church elders that she did not believe plaintiff was having an affair, and defendant claimed he wanted her to know the truth. Defendant denied any intention to put P.J. in the middle of their marital issues, and "the real reason [he] shared [the email] with her is because she had offered mistaken testimony to the church board and . . . that was somewhat upsetting to [him]." Defendant claimed that he asked for the email back, but P.J. refused. Defendant denied any intent to harass plaintiff.
Finally, defendant denied throwing plaintiff's bedding on the floor. Rather, he stripped the bed as per P.J.'s instruction and put the sheets in the washing machine. He also denied trying to prevent P.J. from testifying at the hearing, stating that he just wanted to make her aware that "her daughter had set her up to lie on her behalf."
The judge accepted plaintiff's testimony that she has been verbally degraded over the last few years, and that "this unhappiness, this abusive conduct, is . . . cumulative." The judge made a point to note defendant's demeanor during the hearing: "sometimes when I was talking, other people were talking, you were staring at the wall, you were staring at the ceiling. I felt that sometimes you were laughing inappropriately. You were laying across the table at one point in time with your arm down."
The judge found defendant's explanation for leaving the knife around the house "just not believable" because it is a "folding . . . ballistic-type, heavy duty knife." The judge found no indication that the knife could be used as a screwdriver as defendant claimed, and concluded "one might intimate from that that it's being left around for a . . . subliminal message, not necessarily that the defendant would ever hurt the plaintiff with a knife, but domestic violence cases . . . ultimately boil down to control." The judge found defendant's removal of the door handle to be "a statement that you will not do something."
After listening to the tape of the first FRO hearing, the judge agreed with the prior judge's findings that the predicate act of assault was not established. However, the judge also noted that, notwithstanding the dismissal of the civil domestic violence complaint, defendant was charged in a criminal complaint with assault and was released on his own recognizance with a condition of his bail that prohibited any contact with plaintiff. While the judge did not suggest that defendant violated his bail conditions, he questioned why defendant would return to the house "with that hanging over [his] head? . . . It's pushing the envelope."
The judge found defendant's testimony that plaintiff's email was left open on the computer and accessible was not credible. But even if the computer was left unlocked, defendant "didn't have the right to go foraging into her personal [email]--it's like going into somebody's diary." The judge found that defendant knew or should have known that, when he provided a copy of that email to the plaintiff's mother, it "was going to be related back to the plaintiff by the mother, not just that it happened, but . . . with scorn." The judge concluded that this act constituted harassment as there was alarming conduct and repeated acts with the purpose to alarm or seriously annoy. He further stated:
I think that [defendant] wanted to find proof that [plaintiff] was having an affair, but he also wanted to find it to upset her and annoy her, because he could have just walked out of that house with that document, used it for his purposes, [and] nobody would be anymore worse off. But, instead, he decided, quite frankly, to, in my opinion, embarrass her to her own mother in an
attempt to just continue to try to control her, keep her down.
The judge did not find that defendant made a statement to P.J. when he gave her the email to the effect that he would harm plaintiff with it, but nevertheless determined his intent was to harass plaintiff by giving the email to her mother. The judge noted his concern "about there not being any sort of restraint on these parties at all" and, citing Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), found that an FRO is needed "to prevent future acts of domestic violence from occurring."
II.
Our review "of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "Because of the family courts' special jurisdiction and expertise in family matters," we "accord deference to family court factfinding[s]." Id. at 413. We do not disturb the "factual findings and legal conclusions of the trial judge unless . . . 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." Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Our review of a trial court's legal conclusions is plenary. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
Under the PDVA:
"Domestic violence" means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor:
. . . .
(13) Harassment [N.J.S.A.] 2C:33-4
A person commits the offense of harassment "if, with purpose to harass another, he . . . [e]ngages 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(c).
[N.J.S.A. 2C:25-19(a).]
Defendant first claims that the trial judge misapplied State v. Dispoto, 189 N.J. 108 (2007), to find that "pushing the envelope" constitutes domestic violence. While defendant is correct in noting that Dispoto is factually distinguishable, as it dealt with terroristic threats and issues regarding Miranda warnings, id. at 113, the trial judge cited the case for the proposition that a defendant may commit an act of domestic violence by providing communications to a third-party for the purpose of causing serious annoyance and alarm to the victim, id. at 122 (citing Cesare, supra, 154 N.J. at 403).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). --------
The judge explained that the circumstances of this case must be viewed objectively and that, although defendant did not make a threat regarding plaintiff to P.J., his purpose in providing P.J. with the email was to cause serious annoyance and alarm to plaintiff. This was one step in what the court characterized as defendant's effort to push the envelope.
The judge analogized the situation to one in which someone was forbidden from contacting a victim, but instead had a friend tell the victim not to appear in court. The judge found that defendant similarly attempted to skirt the prohibitions on contact with plaintiff by "pushing the envelope" in order to harass her.
Importantly, this was not the sole basis supporting the judge's finding of harassment. The judge found that defendant had gone through plaintiff's personal emails when he knew that "in all likelihood [it was] going to cause the plaintiff annoyance or alarm." We find no misapplication of relevant case law in the judge's conclusion that defendant's conduct amounted to harassment.
Defendant next argues that the trial judge erroneously considered prior acts by defendant that were not included in plaintiff's complaint. The complaint filed in support of the August 20, 2014 TRO lists the July 14, 2014 incident as a prior incident of domestic violence. There is also an attachment listing the removal of the door handle to the master bedroom in March 2013, and defendant's alleged statement to P.J. when he gave her the email. In an amended TRO entered on September 5, 2014, the prior history is listed in the body of the complaint.
"At a minimum, due process requires that a party in a judicial hearing receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)). In the context of domestic violence complaints, this court has recognized that "[i]t constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint." J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998).
We are satisfied that plaintiff's complaint provided adequate notice of the allegations against defendant. The complaint describes not only the August 2014 access to her email account, but also the July 2014 incident involving defendant's cell phone, defendant's history of being "verbally abusive," and his blocking plaintiff from accessing family funds. Plaintiff also included the alleged comment defendant made to her mother about harming her with the email, and the fact that defendant had removed the handle from the door of the master bedroom.
Defendant notes that the complaint did not include an allegation that defendant shook and screamed at the parties' daughter, or any mention of the hunting knife. Although testimony was permitted regarding defendant shaking his daughter, the judge did not make any finding regarding this allegation and did not rely on it in his decision.
Defendant and plaintiff both testified at length about the hunting knife. There was no objection from defendant when the knife was first mentioned and no claim of surprise or request for an adjournment. Defendant was given adequate notice of the allegations in the complaint, and had ample time to consult with his attorney and prepare a defense. We find no due process violations.
Defendant next argues that principles of res judicata prevented the trial judge from considering the allegations of the July 2014 incident and of defendant removing the door handle from the master bedroom, as both were adjudicated in a hearing on August 5, 2014. Consideration of prior history of domestic violence between the parties is not only permitted, but required by the PDVA, which instructs courts to consider "[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). In Cesare, supra, the Court held "trial courts can consider evidence of a defendant's prior abusive acts regardless of whether those acts have been the subject of a [previous] domestic violence adjudication." 154 N.J. at 405; see also T.M. v. J.C., 348 N.J. Super. 101, 106 (App. Div.), certif. denied, 175 N.J. 78 (2002).
By its language, the harassment statute requires consideration of past incidents to determine whether there has been a "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(c).
It was clearly appropriate for the trial judge to consider the facts of the previous allegation. Importantly, the judge did not expand on or alter the first judge's decision, noting that he "felt like there was a struggle over the phone and that it was more of a . . . contretemps than anything else, even though the plaintiff had marks on her arms[.]" He stated his agreement with the first judge that plaintiff did not meet her burden of proving domestic violence. Plaintiff made no attempt to relitigate the July 2014 incident, and it had no further bearing on the trial judge's decision. The facts of that altercation were clearly relevant to the adjudication of the plaintiff's claim of harassment.
Finally, defendant argues that plaintiff failed to meet her burden of proving the predicate act of harassment, and that even if she had, an FRO was not necessary.
In determining whether to grant an FRO pursuant to the PDVA, a trial judge must make two findings. Silver, supra, 387 N.J. Super. at 125. "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Ibid. "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." Id. at 126.
In the context of subsection (c) of N.J.S.A. 2C:33-4, to "alarm or seriously annoy" has been interpreted to mean "to weary, worry, trouble, or offend." State v. Hoffman, 149 N.J. 564, 581 (1997). "A finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." Id. at 577. Moreover, a purpose to harass can be inferred from a history between the parties. See ibid.
We expanded on the notion of inferred purpose in C.M.F. v. R.G.F., 418 N.J. Super. 396 (App. Div. 2011). There, the defendant argued that the catalyst for his behavior was his anger over a court order. Id. at 404. We noted that the defendant "seems to suggest anger somehow negates an intent to harass and therefore could serve to excuse his behavior in this case." Ibid.
We concluded, "[w]e do not view these mental states as mutually exclusive. On the contrary, there is sufficient evidence from which to infer that defendant acted with the requisite state of mind to constitute harassment." Ibid. Because the defendant "knew that his offensively coarse language would disturb, irritate and annoy plaintiff," it could be inferred that he "acted with the intent to cause that result." Ibid.
Here, the court heard extensive testimony regarding the parties' history and defendant's repeated abusive behavior. Plaintiff and her mother both testified that the hunting knife was left in various parts of the house. Plaintiff also testified that defendant removed the door handle from the master bedroom. The judge found both incidents to be examples of defendant's need to demonstrate control over plaintiff.
Defendant's opening of plaintiff's private email was the final act in a series that the court found to be "repeatedly committed acts with purpose to alarm or seriously annoy." N.J.S.A. 2C:33-4(c). The judge found that defendant "wanted to find proof that [plaintiff] was having an affair, but he also wanted to find it to upset her and annoy her[.]" The judge noted that defendant could have kept the email to himself and "used it for his purposes," but instead he chose to "embarrass [plaintiff] to her own mother in an attempt to just continue to try to control her, keep her down."
Defendant's intent was properly inferred from the prior history of the parties and the fact that defendant "knew or should have known that [his actions were] going to be related back to the plaintiff by the mother[.]" See C.M.F., supra, 418 N.J. Super. at 404.
Importantly, the trial judge made specific credibility findings based on the demeanor and testimony of the witnesses. While the judge found plaintiff to be believable and genuine, he did not find defendant credible. He specifically noted defendant's cavalier and unusual behavior during the hearing, and noted that he would have expected defendant, "especially [as] someone who has a higher calling, to tell the truth, even if it didn't help him."
Based on these credibility findings, it was entirely appropriate for the judge to find defendant's explanation for the hunting knife "just not believable," and to reject his explanation regarding the door handle.
The judge concluded that defendant's intent in giving the email to plaintiff's mother was not limited to redemption in the eyes of his mother-in-law and the church, but was also to annoy and upset plaintiff. The Court in Hoffman, supra, concluded that "[a]bsent a legitimate purpose behind defendant's actions, the trial court could reasonably infer that defendant acted with the purpose to harass [the plaintiff]." 149 N.J. at 577. Accordingly, the trial court did not err in concluding that defendant offered no legitimate purpose for his actions, and his intent was to harass plaintiff.
We also reject defendant's argument that an FRO was not warranted even if the predicate act of harassment was found. The trial judge made a specific finding that an FRO was necessary "to prevent future acts of domestic violence from occurring." After hearing extensive testimony and making well-supported credibility findings, the judge determined that an FRO was necessary to protect plaintiff from further abusive behavior by defendant. These findings are supported by adequate, substantial and credible evidence in the record.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION