Opinion
DOCKET NO. A-4817-12T2
07-14-2014
E.M., Plaintiff-Respondent, v. E.W., Defendant-Appellant.
E.W., appellant pro se. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Haas.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-816-13.
E.W., appellant pro se.
Respondent has not filed a brief. PER CURIAM
Defendant E.W. appeals from the May 2, 2013 final restraining order (FRO) issued against him by the Family Part under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Defendant argues the court erred by finding he committed the predicate offense of harassment, N.J.S.A. 2C:25-19a(13), as defined in N.J.S.A. 2C:33-4. We agree and reverse.
We discern the following facts from the evidence adduced at trial. Plaintiff, age seventeen and one-half, was a high school student who lived with her mother. Defendant, age fifty-four, and his wife lived "[r]ight behind" plaintiff's house. Defendant has an eighteen-year-old son, who attended school with plaintiff. Plaintiff and defendant's son were friends and she came to know defendant and his wife over the six-month period prior to the events relevant to this appeal.
At some point during this period, plaintiff and her mother's relationship soured and she began living in defendant's home, where she stayed a total of twenty-six days. At other points, plaintiff lived with her mother and also resided for a time in a group home for teenagers. Although it is not clear from the record, it appears plaintiff was living in the group home at the time she sought the FRO.
Plaintiff testified that she and defendant "entered a dating relationship[,]" which included "[k]issing, cuddling, sexual activities." Plaintiff alleged she and defendant engaged in oral sex "around five" times in his home. Although defendant denied having a sexual relationship with plaintiff, he admitted that he "kissed her on her face and head, her hands."
Because of plaintiff's "bad relationship" with both of her parents, defendant offered to assist her in filing a motion in the Family Part to emancipate herself from her parents' custody. He helped plaintiff prepare a certification for this purpose based upon entries she made in a journal he encouraged her to write concerning the difficulties she was having with her parents and brother. Plaintiff and defendant exchanged e-mails concerning the proposed motion.
At some point, plaintiff testified she decided "to break off the relationship[.]" At around 8:40 a.m. on April 15, 2013, she sent defendant a text message while she was at school that said: "Please don't ever try to contact me again. I will not hesitate to contact the authorities if you do." Defendant testified the text was sent from his wife's telephone, which defendant had previously given plaintiff to use.
Defendant admitted he received the text, but testified he was not sure whether plaintiff or her mother had sent it. Defendant stated plaintiff had sent him texts during the evening of April 14 that did not indicate she was upset with him. Defendant read two of the texts at the trial. One stated: "Hey, I still haven't heard anything about when my mom's coming, but I'm just chillin' and everything's fine. Don't say anything bad about the girls in the text because . . . they might see it." The other said, "She's coming at 4. I e-mailed [your son]."
Defendant testified that, when he received the April 15 text, he questioned whether plaintiff had actually sent it because it was different than the "chatty text messages" she sent him the previous evening. In an attempt to determine who had authored the text, defendant testified he sent plaintiff a note. Although the note was marked in evidence at trial as Exhibit P-2, the entire contents of it are not apparent from the record and defendant has not provided us with a copy of the note in his appellate brief. The note referred to the text plaintiff sent defendant on April 15 and, in his findings at the end of the trial, the judge stated the note then stated, in part: "I'll be at the right place at the right time on her longest day at work. If you meant what's written in the text, have the cops show up. If you don't - - if you can come - - come yourself if you can. I'll understand everything and everything will be all right."
Plaintiff testified she received the note at school and it was delivered inside a book given to her by a friend, who had gotten it from another friend. Plaintiff said she interpreted "the right place at the right time" to be a parking lot across the street from her school, where she went to take "unauthorized smoke break[s.]" Plaintiff stated she had met defendant there in the past and he knew she went there for her breaks.
On April 16, 2013, at the time she usually went to the parking lot to smoke, plaintiff testified she saw defendant "drive by." Plaintiff stated defendant "kind of pulled over . . . right next to the curb where I was[,]" but when plaintiff "realized it was him[,]" she "turned away, was very scared . . . like speed walked the other way . . . and [defendant] just drove away." Defendant did not speak, or attempt to speak, to plaintiff. He testified he "drove by her and recognized her," but "just kept forward - - going forward."
The next day, plaintiff went to the vice-principal's office and received assistance in preparing an application for a temporary restraining order against defendant. "[A] school police officer" was helping her. According to plaintiff, there was "a rumor going around that [defendant's] son[] had another note for me." The officer called defendant's son to the office and took the note from him. The officer then showed plaintiff the note. In part, the note stated, "I don't hate you, [E.M.]. You can't make me hate you. I've already forgiven you for anything you have done or will do." The note also said, "You couldn't just end the relationship, though. You had to destroy it and burn the bridge behind you . . . Here's the problem, though. The relationship can't be broken." The note apparently ended with, "I believe that one day and a day not too far away you will . . . come back to me."
This note was marked in evidence as Exhibit P-3, but its entire contents were not read into the record and defendant has not provided a copy of it to us in his appendix.
Defendant admitted writing the note and giving it to his son. However, he "was a little bit tentative. Do I really want to send it or not?" Therefore, defendant stated he told his son "[t]o hold" the note, rather than give it to plaintiff. Defendant testified he did not want his son to give plaintiff the note "until I told [him] to do so, which never happened" because the officer "decided to preempt me, to take the note from my son before he had an opportunity to follow through with what his full instructions were."
Plaintiff obtained a Temporary Restraining Order on April 25, 2013. She alleged three acts of domestic violence: sexual assault, criminal sexual contact, and harassment. After hearing final arguments from plaintiff's attorney and defendant, the judge issued a FRO against defendant based on harassment.
At trial, plaintiff's attorney conceded in his summation that plaintiff had not proven that defendant committed sexual assault or criminal sexual contact because plaintiff was over the age of seventeen at the time she began her dating relationship with defendant. In his findings at the conclusion of the trial, the judge agreed that these two charges were no longer being alleged.
In a brief oral decision, the judge found that the court had jurisdiction over the dispute because the parties had a dating relationship. With regard to plaintiff's contention that defendant harassed her, the judge found that plaintiff sent a text to defendant advising him "she didn't want to see the defendant anymore and that she never wanted to talk to him again." The judge found defendant then sent plaintiff the first note. Defendant later "drove by at a time and a place where they had met before." The judge "believe[d] that [defendant] knew that [plaintiff] would probably be there."
Defendant does not dispute this finding on appeal.
--------
As to the second note that was intercepted by the school officer before it was ever delivered to plaintiff, the judge found defendant "knew that it was wrong to give it to her" and "knew there might be problem if he gave it to her." The judge stated that defendant's reluctance to send the note through his son demonstrated, "in the Court's mind, . . . an intent to carry out and engage in a course of alarming conduct, repeatedly committed acts, with the purpose to alarm or seriously annoy the other person."
The judge also found that plaintiff had "testified that there were prior acts of domestic violence in that the defendant exerted an amount of control and influence over her, even going so far as to assist her in preparing certifications to emancipate." The judge pointed to the age difference between the parties and stated the defendant
knew that [plaintiff] was vulnerable [and he] established a relationship with her . . . in which she would rely on his worldly experience and influence . . . because she's having problems with her parents, not only to go live with him, but also to perhaps become emancipated so that they should . . . not have any way to influence her at all at that point in time.
The judge found that, "when the defendant sent the second note[,] plaintiff "became increasingly afraid that [defendant] wouldn't quit, he wouldn't give up, he'd continue to pursue her." The judge concluded that a FRO was needed because plaintiff "needs protection from future acts of domestic violence and has specifically identified a genuine fear for her life, health and well-being, not knowing whether or not the [defendant] would cease his attempts to continue to contact her and be an influence in her life." This appeal followed.
On appeal, defendant argues the evidence presented at trial does not support the judge's finding that he committed an act an act of harassment against plaintiff. We agree.
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. The "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (l998). However, a judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
In adjudicating a domestic violence case, the trial judge has a "two-fold" task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "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. (citing N.J.S.A. 2C:25-29(a)). "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. Whether a restraining order should be issued depends on the seriousness of the predicate offense, on "the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse," and on "whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. l995). Cesare, supra, 154 N.J. at 402; N.J.S.A. 2C:25-29(a).
Plaintiff's complaint in this case alleged harassment as the predicate act of domestic violence. N.J.S.A. 2C:33-4 defines harassment, in relevant part, as follows:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, heSubsection (a) "targets a single communication" and focuses on the mode of the speech employed, as opposed to subsection (c), which "proscribes a course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy an intended victim. State v. Hoffman, 149 N.J. 564, 580 (1997). To prove harassment under subsection (c), a plaintiff must show that the defendant acted with a purpose to harass or seriously annoy the plaintiff by engaging in a "course of alarming conduct or of repeatedly committed acts." Ibid.
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; [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.
Proof of a purpose to harass is an essential element of N.J.S.A. 2C:33-4. See L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). "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." Hoffman, supra, 149 N.J. at 577 (quoting N.J.S.A. 2C:2-2(b)(1) (internal quotation marks omitted). There must be proof that a defendant's conscious purpose was to "harass," that is, "annoy," "torment," "wear out," or "exhaust." State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (quoting Webster's II New College Dictionary 504 (1995)) (internal quotation marks omitted), certif. denied, 188 N.J. 577 (2006). Merely knowing that someone would be annoyed, as opposed to having a conscious objective to annoy, is insufficient to prove a purpose to harass. See State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).
"A finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 777. 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 support an inference of purpose. Castagna, supra, 387 N.J. Super. at 606.
In considering whether a party's conduct rises to the level of harassment, the trial courts must consider any prior history of domestic violence. Pazienza v. Camarata, 381 N.J. Super. 173, 183 (App. Div. 2005) (citing N.J.S.A. 2C:25-29(a)(1)), and "must weigh the entire relationship between the parties and . . . specifically set forth their findings of fact in that regard." Ibid. (quoting Cesare, supra, 154 N.J. at 405) (internal quotation marks omitted). Further,
consideration of prior communications and conduct is not only permitted but required in the domestic violence context. "In determining whether a defendant's conduct is likely to cause the required annoyance or alarm to the victim, the defendant's past conduct toward the victim and the relationship's history must be taken into account. The incidents under scrutiny must be examined in light of the totality of the circumstances."
[Id. at 183-84 (quoting Hoffman, supra, 149 N.J. at 585).]
Applying these principles to the record developed at the trial, we believe the trial judge incorrectly concluded that defendant's actions constituted harassment against plaintiff. While we understand why the judge found defendant's conduct toward plaintiff unacceptable, we are unable to equate it with the offense of harassment.
The record demonstrates that the parties engaged in a dating relationship for an unspecified period of time during the six months after plaintiff met defendant. On April 14, 2013, plaintiff sent defendant text messages that did not indicate anything was amiss. On the morning of April 15, plaintiff sent defendant a text stating he was not to contact her again. Defendant did not believe the text came from plaintiff, and sent her a note asking her to meet him and to bring the police if she really meant what she had sent in the April 15 test. Plaintiff was at the meeting place on April 16, but defendant drove by without talking or approaching plaintiff. The note he gave to his son on April 17, in which he stated he did not hate plaintiff, had forgiven her, and believed plaintiff would "come back" to him, was never delivered to plaintiff because it was taken by the school police officer. In addition, plaintiff had already begun the process of seeking a TRO when the officer showed her the second note.
Under these circumstances, it is clear that N.J.S.A. 2C:33-4a is inapplicable. Defendant did not communicate with plaintiff anonymously, at inconvenient hours, or in coarse language. The parties previously communicated through texts and other writings and, therefore, there is nothing about the mode of communication used here that suggests a purpose to "cause annoyance or alarm." Hoffman, supra, 149 N.J. at 580.
While we certainly do not condone defendant's actions in this case, the record does not support the judge's legal conclusion that defendant's actions constituted a harassing "course of conduct" under N.J.S.A. 2C:33-4c. We discern no "purpose to harass" in defendant's first note to plaintiff. The note did not threaten plaintiff and, on its face, was sent to determine whether plaintiff had been the true author of the April 15 text. Plaintiff went to the location described in the note on April 16, which also indicates she did not feel threatened by the communication. While she was in the parking lot, plaintiff observed defendant drive by in his car. Defendant did not stop or speak to defendant. Given the fact that no contact occurred between the parties, we are unable to discern a purpose to harass in defendant's fleeting presence at the scene.
Finally, defendant's second note was not delivered to plaintiff. It is well-established that a communication delivered to a victim through a third-party can constitute harassment when the defendant intends to use the third-party "as an instrument of harassment." Castagna, supra, 387 N.J. Super. 605. However, the communication must be delivered to the victim for harassment to occur. Id. at 605-06. Here, defendant alleged he gave the note to his son "to hold" until defendant decided whether to give it to plaintiff. The police officer took it from defendant's son before any "communication" of the note to plaintiff could occur. Under those circumstances, we believe that plaintiff failed to establish the "purpose to harass" required under N.J.S.A. 2C:33-4c. Moreover, even if the contents of the second note are considered, they are not threatening or harassing in nature.
Significantly, there was no past history of domestic violence between the parties that might support an inference that the two notes and defendant's driving by the school indicated a purpose to harass plaintiff. The judge found defendant had previously "exerted an amount of control and influence over" plaintiff, but the only prior act he identified was the assistance defendant provided to plaintiff "in preparing certifications to emancipate her." However, that act does not constitute harassment as defined in N.J.S.A. 2C:33-4.
Because the record developed by plaintiff at trial does not support a determination by a preponderance of the evidence that defendant's actions constituted a course of conduct undertaken with the purpose to harass plaintiff, the FRO must be reversed.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION