Opinion
DOCKET NO. A-4122-12T2
05-12-2014
G.N.S., Plaintiff-Respondent, v. R.A.M., Defendant-Appellant.
Salvatore R. Vargo argued the cause for appellant (Bruno & Ferraro, attorneys; Mr. Vargo, of counsel and on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Manahan.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-002180-13.
Salvatore R. Vargo argued the cause for appellant (Bruno & Ferraro, attorneys; Mr. Vargo, of counsel and on the brief).
Respondent has not filed a brief. PER CURIAM
Defendant R.A.M. appeals from a final restraining order (FRO), issued against him by the Family Part under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17-35. Defendant argues the court erred by finding he committed the predicate offense of harassment, N.J.S.A. 2C:19a(13), as defined in N.J.S.A. 2C:33-4. Defendant further argues the court erred by failure to find that the FRO was necessary to protect the plaintiff from future acts of domestic violence. We agree and reverse. The court did not articulate a basis for the issuance of the restraining order as required by the Act. Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).
G.N.S. did not participate in this appeal.
G.N.S. and R.A.M. had a dating relationship approximately five to seven years prior to the entry of the FRO. The relationship was of a short duration lasting approximately two months. Upon the termination of the relationship, the parties did not have contact of any kind with each other. G.N.S. thereafter was married and had a child.
In early February 2013, R.A.M. initiated contact with G.N.S. through Facebook. They became Facebook "friends." On Valentine's Day of that year, G.N.S. personally delivered to R.A.M., cupcakes at his place of business. There was one other "face-to-face" meeting which occurred over lunch with her child present.
The communications between the parties, for several weeks, were friendly, and admittedly by G.N.S., "flirtatious." G.N.S. acknowledged during the hearing that she was "leading him [R.A.M.] on." Notwithstanding, G.N.S. testified that she did not want to resume a "dating" relationship with R.A.M. and advised him so. Despite this advisement that she only wanted to be friends, R.A.M. continued his pursuit to rekindle their prior relationship. R.A.M. would communicate with G.N.S. by text, phone, and Facebook after G.N.S. requested that he cease. After an early-morning phone call from R.A.M. (unanswered) on March 6, 2013, G.N.S. sought and received a Temporary Restraining Order (TRO). Upon service of the TRO, there was no further contact by R.A.M. R.A.M. did not testify at the trial.
The trial judge, at the conclusion of the hearing, found that R.A.M.'s continued communications, after being advised to cease by G.N.S., constituted the predicate offense of harassment. The FRO was issued. The trial judge cited as the bases for his finding that:
[The] attempt by him to contact her was something that was annoying her and to try to do so at 20 to 2:00 [sic] in the morning certainly is what would be an inconvenient hour under N.J.S.A. 2C:33-4(a).
Given that the contacts continued right up until the point where the restraining order was entered, even though [G.N.S.] had made it very clear to [R.A.M.] that she no longer wanted to communicate with him in any way, he was continuing to do so after knowing that that was annoying to her, and that she did not want to continue it constitutes an act of harassment. There will be a final restraining order.
On this appeal, R.A.M. argues that the trial judge failed to make appropriate findings as to "purpose." This finding is requisite to establish harassment. Arguably, the judge's finding of the predicate offense of harassment including "purpose" finds support within the record. As our courts have noted, there is rarely direct proof of intent and purpose may often be inferred from what is said and done in the surrounding circumstances. After R.A.M. was advised by G.N.S. that his "advances" were no longer welcome, he continued to make numerous attempts at contact. The judge found that the number of contacts on one day, as well as contact in the early morning hours, was sufficient to constitute the predicate offense.
As noted in Kamen v. Egan, 322 N.J. Super. 222, 229 (App. Div. 1999), the domestic violence act "is intended to assist those who are truly the victims of domestic violence. It should not be trivialized by its misuse in situations which do not involve violence or threats of violence." The Act was intended "to address matters of consequence, not ordinary domestic contretemps." Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995).
It is for this reason that in adjudicating a domestic violence complaint, the Family Part must perform a two-fold task. "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." Silver, supra, 387 N.J. Super. at 125. Second, a court must determine "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 a victim from immediate danger or to prevent further abuse." Id. at 127. Here, no specific findings were made whether the domestic order was necessary to protect G.N.S. from further acts of domestic violence. Cesare v. Cesare, 154 N.J. 394, 402 (1998).
The record is devoid of evidence demonstrating that G.N.S. was in need of protection from defendant and devoid of evidence of a pattern of abusive or controlling behavior by R.A.M. In the absence of that evidence, the entry of the order must be reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION