Opinion
DOCKET NO. A-1754-14T3
07-27-2016
A.K., Plaintiff-Appellant, v. M.K., Defendant-Respondent.
Derek M. Freed argued the cause for appellant (Ulrichsen Rosen & Freed LLC, attorneys; Mr. Freed, of counsel and on the briefs; Rebecca C. Day, on the briefs). Leonard S. Baker argued the cause for respondent (Greenblatt, Pierce, Engle, Funt & Flores, LLC, attorneys; Mr. Baker, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Haas. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-1157-15. Derek M. Freed argued the cause for appellant (Ulrichsen Rosen & Freed LLC, attorneys; Mr. Freed, of counsel and on the briefs; Rebecca C. Day, on the briefs). Leonard S. Baker argued the cause for respondent (Greenblatt, Pierce, Engle, Funt & Flores, LLC, attorneys; Mr. Baker, of counsel and on the brief). PER CURIAM
Plaintiff A.K. (Amanda) sought a final restraining order (FRO) under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on her allegation that her husband, M.K. (Mark), from whom she was seeking a divorce, committed a predicate offense of harassment. N.J.S.A. 2C:25-19(a)(13) (identifying harassment as a predicate offense); N.J.S.A. 2C:33-4 (defining harassment). At the close of plaintiff's case, the trial court granted Mark's motion for involuntary dismissal under Rule 4:37-2(b). Plaintiff appeals, contending that the court did not provide adequate findings of fact and misapplied the standard for dismissal. Having considered the parties' arguments in light of the record and applicable principles of law, we affirm.
We employ pseudonyms to protect the identity of the victim and her family.
In reviewing the trial court's dismissal under Rule 4:37-2(b), we apply the same standard that governs the trial court. Smith v. Millville Rescue Squad, ___ N.J. ___, ___ (2016) (slip op. at 36). We accept as true the evidence supporting the non-movant's positions, extend to her all reasonable inferences, and grant the motion only if no rational factfinder could conclude that the non-movant presented a prima facie case. Ibid. "Analytically, the standard for determining summary judgment motions is similar to that required for an involuntary dismissal under Rule 4:37-2(b) . . . ." Schneider v. Simonini, 163 N.J. 336, 360 (2000), cert. denied, 531 U.S. 1114, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001).
Amanda was the sole witness in support of her domestic violence complaint. The predicate act allegedly occurred shortly after 8:00 p.m. on October 21, 2014. She testified that she and Mark were going through a divorce. He had recently left the marital home for an apartment in Philadelphia. The parties' three children remained with Amanda. Earlier in the day, he had texted her that he would be stopping by the house to drop off a vehicle in the garage, and to visit with the children.
When Amanda returned home with the parties' daughter, Mark was sitting on the living room sofa watching television with the two boys. As Amanda proceeded to kiss the boys hello, Mark began yelling at her, "You snitch. You must be sick. You have a problem with snitching." He then turned to the children to say, "Your mother is mentally ill. She's sick. Your mother is mentally ill."
Amanda remained silent and retreated to the kitchen. Mark followed her. Waving his finger in her face, he repeatedly called her a snitch, said she was sick, and asked "what is wrong with you?" Mark made her scared, anxious and upset. Amanda again did not respond, and went upstairs to the marital bedroom, and entered a "small walk-in closet." The party's younger son had walked upstairs and asked, "Mommy, where are you?" Amanda answered that she was in the closet. She then opened the door to allow the child to enter. By that time, Mark appeared behind the boy, and pulled him out of the closet. Amanda threatened to call the police.
As she remained in the closet, she overheard Mark say good night to the boy. She then overheard him talking to the two older children downstairs. Amanda then left the closet and helped the younger child get ready for bed. She eventually went downstairs and confirmed with her children that Mark had left.
Amanda alleged that the October 21 incident was preceded by other acts of verbal abuse. She stated that Mark would repeatedly call her names in front of her children, including "stick in the mud," "wet blanket," and "a goodie-goodie." He also called her a "rat."
Amanda also asserted that one day a couple of weeks earlier, Mark had returned to the marital home to remove his belongings. He had told Amanda that she "better not be in the house" when he moved his things. When she responded that it was her house, he said, "Then you better be hol[e]d up in your room." She decided to stay away during Mark's move, but arrived before Mark had finished. She stated that Mark gave her a "long, angry stare from the porch. . . ."
In the summer of 2014, while the parties were still cohabitating, Amanda was chopping vegetables in preparation for dinner. Mark walked up, grabbed the knife, and "skimmed it across his neck," and looked at Amanda "with a really scary like smirk." Amanda told him, "You're sick, and that's disturbing, and that is not funny."
Mark also texted Amanda, alternating between pleas to reconcile, which she rebuffed, and angry rejections of her. She stated that on one occasion, on the walkway to the home, he was angered by a letter her divorce attorney had written. He snapped at her, and threw the paper at her as he berated her.
Amanda also stated that Mark was a short-tempered driver. She said he exhibited "extreme road rage," which occurred at least ten times during the time she knew him. She said they were married almost eleven years, and had a pre-marital relationship for two years before marriage. She alleged that his inability to control his rage on the roadways, and his increasingly frequent verbal assaults, presaged an act of physical violence against her. However, she admitted that he had never physically assaulted her, or verbally threatened to physically assault her.
In granting the motion for involuntary dismissal, the court concluded that the evidence was insufficient to establish a predicate act of harassment. The court summarized the precipitating incident. It concluded that Mark's actions were not substantially different from those deemed insufficient to establish harassment in State v. Hoffman, 149 N.J. 564, 586, 590 (1997) (sending torn-up restraining order), E.M.B. v. R.F.B., 419 N.J. Super. 177, 183 (App. Div. 2011) (calling plaintiff "a senile old bitch"); Chernesky v. Fedorczyk, 346 N.J. Super. 34 (App. Div. 2001) (merely entering property and having dispute deemed insufficient); N.B. v. T.B., 297 N.J. Super. 35, 41 (App. Div. 1997) (husband's entry into wife's bedroom, though told not to enter, constitutes domestic contretemps); and State v. L.C., 283 N.J. Super. 441, 451 (App. Div. 1995) (calling husband's female friend "whore" and "slut" insufficient), certif. denied, 143 N.J. 325 (1996).
We concur in the trial court's assessment of the evidence. The statute defines three forms of harassment:
[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;
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).]
In applying the statute, "harass" must be given its ordinary meaning, namely, to annoy, torment, wear out, or exhaust the intended victim. State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.), certif. denied, 188 N.J. 577 (2006). An essential element of each form of harassment is proof of a purpose to harass. See Hoffman, supra, 149 N.J. at 576-77. Purpose may be inferred from the evidence, informed by common sense, and experience. Id. at 577; see also Castagna, supra, 387 N.J. Super. at 606.
Subsection (a) is generally focused on the mode of speech employed, not a statement's content. Hoffman, supra, 149 N.J. at 583. "Speech that does not invade one's privacy by its anonymity, offensive coarseness, or extreme inconvenience does not lose constitutional protection even when it is annoying." Id. at 583-84. The harassment statute is also informed by the underlying purpose of the PDVA, which "[a]t its core . . . effectuates the notion that the victim of domestic violence is entitled to be left alone." Id. at 584.
The Supreme Court has emphasized the care that a trial court must exercise to distinguish between ordinary disputes and disagreements between persons in a past or current domestic relationship, and those acts that cross the line into domestic violence. J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011); see also Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995) (finding that regardless of defendant's purpose, the statement "I'll bury you," standing alone, "would not have satisfied the definition of harassment . . . unless it was manifested by a course or repeated acts of alarming conduct.").
Not every bothersome, offensive, or rude behavior rises to the level of harassment. J.D., supra, 207 N.J. at 483. In E.M.B., supra, 419 N.J. at 183, the court found that although "senile old bitch" was "understandably upsetting" language, it was insufficient to establish a purpose to harass. "The harassment statute was not enacted to proscribe mere speech, use of language, or other forms of expression." Id. at 182 (internal quotation marks omitted). "United States Supreme Court precedent repeatedly holds expressions remain protected even where the content hurts feelings, causes offense, or evokes resentment." State v. Burkert, 444 N.J. Super. 591, 601-02 (App. Div. 2016).
In J.D., supra, 207 N.J. at 487-88, the Court reversed entry of a restraining order where the trial court had failed to find a purpose to harass. The defendant in J.D. passed by plaintiff's home in the early morning hours to document her cohabitation with another man, which the defendant intended to use to secure custody of the parties' children. Id. at 467-69. Similarly, in L.M.F. v. J.A.F., 421 N.J. Super. 523, 525, 530-31 (App. Div. 2011), we reversed a finding of harassment where the trial court failed to find that a defendant father had the purpose to harass, although he repeatedly sent text messages to his former wife to obtain information about their daughter's academic performance.
A plaintiff's assertion that he or she felt harassed is not sufficient to prove purpose to harass. J.D., supra, 207 N.J. at 484. A "victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose." Id. at 487. However, "a court must still consider a plaintiff's individual circumstances and background in determining whether a reasonable person in that situation would have believed" a defendant's threat. Cesare v. Cesare, 154 N.J. 394, 403 (1998).
Once a court finds a defendant has committed a predicate act of harassment, it must determine whether the plaintiff needs the protection of a restraining order after engaging in a separate inquiry. Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). As we conclude plaintiff failed to establish a prima facie case of a predicate act of harassment, we do not reach the second prong of the usual analysis. --------
Applying these principles, we are satisfied that no reasonable factfinder could conclude, on the basis of plaintiff's testimony, that a predicate act of harassment was proved. Turning first to subsection (a) of the harassment statute, plaintiff cites language by Mark that, in the context of domestic violence cases, was comparatively tame. Mark called Amanda a snitch, a rat, a stick in the mud, a goodie-goodie, and a wet blanket. He also told her she was sick and mentally ill. While obviously meant to wound, those barbs fall short of "offensively coarse language." Cf. C.M.F. v. R.G.F., 418 N.J. Super. 396, 399 (App. Div. 2011) (defendant conceded use of the words "pig," "whore," "slut" and "fucking bitch" constituted offensively coarse language). The manner in which the insults were delivered — Mark yelled, he waved his finger, he followed his wife around the house — is typical of domestic contretemps. Furthermore, the record indicates that Amanda had alleged that Mark had unreported cash income. Thus, it is difficult to conceive that a factfinder would view the "rat" and "snitch" name-calling as anything but an angry response to those disclosures.
We reject plaintiff's argument that she established a prima facie case under subsection (b). She contends Mark threatened to subject her to "striking, kicking, shoving or other offensive touching." She concedes that no verbal threat was made. We recognize that a threat may be conveyed by non-verbal means. However, plaintiff's subjective fear that defendant would soon lash out physically was unsupported by sufficient objective evidence of a threat. Mark did not threaten offensive touching merely by pointing his finger.
While plaintiff also invokes subsection (c) — referring to "any other course of alarming conduct or of repeatedly committed acts" — the predicate act on October 21 consisted only of verbal insults, and Mark's pursuit of Amanda as she attempted to avoid his tirade. That is insufficient. Cf. State v. J.T., 294 N.J. Super. 540, 545 (App. Div. 1996) ("Placing oneself in a location and remaining there for some time may constitute a 'course of conduct'" where defendant situated himself for three hours outside the house where wife would see him). Furthermore, subsection (c) requires a heightened level of annoyance. See Hoffman, supra, 149 N.J. at 581.
Nor is our analysis affected by Amanda's allegation of prior acts of domestic violence. A reasonable factfinder would not conclude that defendant's road rage incidents, of less than one a year on average, foretold an incident in which he would lash out physically against his wife. The kitchen knife incident also fails to convert Mark's tirade into a threat of violence. Plaintiff testified that she told Mark he was sick and disturbed when he held the knife to his own neck. Her statement did not reflect that she feared harm to herself. Conceivably, his action may have been intended to convey the thought of harming himself. The prior acts of name-calling, angry glances, and tossed letters are typical of a disintegrating marital relationship, but these neither constituted domestic violence nor rendered the actions of October 21, 2014 acts of domestic violence.
To the extent not addressed, plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION