Opinion
DOCKET NO. A-2840-14T2
04-05-2016
L.I., Plaintiff-Respondent, v. C.M., III, Defendant-Appellant.
Michael T. Nolan, Jr., attorney for appellant. Respondent has not filed a 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Haas.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, Ocean County, Docket No. FV-15-0839-15. Michael T. Nolan, Jr., attorney for appellant. Respondent has not filed a brief. PER CURIAM
Defendant C.M., III, appeals from a January 13, 2015 final restraining order (FRO) under the Protection Against Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant's former girlfriend obtained the order after the court found that defendant committed acts of harassment against her. Because the trial court failed to properly apply both prongs of the test established in Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006), we reverse and remand.
Plaintiff obtained an ex parte temporary restraining order (TRO) on December 10, 2014. The trial was conducted informally over two trial dates in January 2015. The sole witnesses were the parties. The court conducted the direct examination of each party, allowing the opposing party an opportunity to cross-examine. In the midst of the court's examination of defendant, the court concluded that plaintiff had established her case and precipitously entered the FRO. Thereafter, acknowledging that he may not have provided defendant a fair proceeding, the court sua sponte vacated the FRO, reinstated the TRO, and continued the hearing on another day. At the second hearing day, plaintiff supplemented her testimony. The court questioned defendant, determined he was not credible, and reinstated the FRO.
Plaintiff testified that the dating relationship between the parties ended over twenty-seven years earlier. They had been engaged to be married. Defendant later married someone else. Roughly a year-and-a-half before the trial, defendant contacted plaintiff online, after many years during which they had no contact. Defendant communicated with plaintiff online once or twice, and then continued communications via text messaging.
Plaintiff asserted that she eventually told defendant to cease contacting her and to go back to his wife. However, plaintiff was unable to produce any supporting text messages, except for one in which she told him to cease texting as she was about to go to work.
The court read selected text messages from November and December 2014 into the record. Plaintiff testified that the text messages were unaltered. Defendant did not dispute the genuineness of the messages. Several of the text messages were insulting. Defendant referred to plaintiff as a "pig," "liar," and "fucking skank;" he also called plaintiff what was described in the trial as the "b" word and the "c" word. A male friend, apparently plaintiff's former boyfriend, had intervened on her behalf to tell defendant to cease contacting her. Some of the messages related to exchanges of threats between the two men.
The texts were not preserved and formally admitted into evidence. See R. 1:2-3. --------
Plaintiff testified that defendant sent over 200 texts — although only several of them were presented and read into the record. She said he also sent her photographs of himself on vacation, including one depicting the tattoo of her face that he had placed on his back when they dated.
With respect to prior history of domestic violence, plaintiff testified that on the previous St. Patrick's Day, defendant and his wife confronted her at a private club function. She alleged that he lunged at her. Plaintiff also stated that defendant's wife threatened to assault her, and that plaintiff showed defendant's wife the messages defendant had sent.
On the second day of trial, plaintiff asserted that defendant approached her while she was seated on a bench in the hallway the previous day in court. She asserted he grabbed her arm in the course of speaking to her. Sheriff's officers allegedly intervened, although none were called as witnesses.
Defendant denied he lunged at her and said he had no knowledge of any threat by his wife. He also denied that he grabbed plaintiff on the bench. However, he did not unequivocally deny that he approached her outside the courtroom.
Defendant asserted that the parties maintained cordial text communications for several months. He denied that plaintiff ever told him to stop texting her. Defendant admitted he sent her nasty text messages and used "foul language." He asserted, "We thought we could be friends. . . . The texts got nasty. We ended it." Defendant maintained that the nasty texts were provoked by threats by plaintiff's friend.
At the end of the second day, the court found that defendant was not credible. The judge found that at least six of the text messages were sent with the purpose to harass, embarrass, and "make [plaintiff] . . . feel bad." The court incorporated its earlier findings in support of its entry of a FRO. In the prior decision, the court found that the sole purpose of sending the insulting texts was to harass. The court held plaintiff had proved a predicate act of harassment based on the text messages. The court stated:
[S]ince it doesn't appear that you will stop unless the Court enters a final restraining order to protect the plaintiff's personal property and prevent further abuse, I'm going to find she's met her burden of proof by a predicate act of harassment based on the text messages. I'm going to find, given the length of them, the time of them, et cetera, there's a need to enter a final restraining order.
The court did not make specific findings regarding the previous history of domestic violence.
On appeal, defendant contends first, the evidence did not support a finding of domestic violence; and second, the court did not adhere to the two-step inquiry required by Silver, supra, 387 N.J. Super. at 125-27, in that the court did not consider whether the FRO was necessary to protect the victim from "immediate danger or to prevent further abuse." Plaintiff has not filed a brief in opposition to defendant's appeal.
We will not disturb a trial court's fact-findings if supported by "adequate, substantial, credible evidence[,]" and we accord deference to the family court based on its special jurisdiction and expertise. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We will reverse a trial court's findings that "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). We also exercise broader review when we consider "the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." Ibid. (internal quotation marks and citation omitted). We are compelled to reverse "if the court ignores applicable standards . . . ." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). We also owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Plaintiff sought a FRO based on her allegation that defendant committed the predicate offense of harassment. See N.J.S.A. 2C:25-19(a)(13) (identifying harassment as a predicate offense); N.J.S.A. 2C:33-4 (defining harassment).
The statute defines three forms of harassment, but an essential element of each is proof of a purpose to harass. See State v. Hoffman, 149 N.J. 564, 576-77 (1997).
[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). A plaintiff's assertion that he or she felt harassed is not sufficient to prove a purpose to harass. J.D. v. M.D.F., 207 N.J. 458, 484, 487 (2011) (stating a "victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose.").
The court did not identify the subsection of the statute upon which it relied. Because the court did not expressly credit the lunging allegation, we may eliminate subsection (b). The court also did not expressly find that defendant's purpose was to alarm or seriously annoy, as required by subsection (c). Furthermore, although plaintiff asserted that defendant sent 200 text messages, the court did not so find, nor did the court find a course of conduct to satisfy subsection (c). Therefore, we conclude the court's findings must be grounded in subsection (a).
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 a trial court must exercise to distinguish between ordinary domestic disputes and disagreements and those acts that cross the line into domestic violence. J.D., supra, 207 N.J. at 475-76; 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."). In considering whether an act of domestic violence has occurred, the Act requires the court to consider any previous history of domestic violence between the parties. Kamen v. Egan, 322 N.J. Super. 222, 228 (App. Div. 1999) (citing N.J.S.A. 2C:25-29(a)(1)).
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. We stated in Silver, supra, 387 N.J. Super. at 124-25, that issuance of a final restraining order does not inexorably follow from a finding of a predicate act. The court must engage in a separate inquiry to determine the need for restraints. Id. at 126-27.
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 facts 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 (stating that "[i]n proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse") (emphasis added).See J.D., supra, 207 N.J. at 488 (stating that where "the risk of harm is so great . . . the inquiry can be perfunctory," but in other cases, it should not).
[Id. at 127.]
In performing this second step of the analysis, "the court should consider and make specific findings on the previous history of domestic violence, if any, between the plaintiff and defendant, and how that impacts, if at all, on the issue of whether a restraining order should issue." Silver, supra, 387 N.J. Super. at 128. "Merely concluding that plaintiff has described acts that qualify as harassment and omitting this added inquiry opens the door to potential abuse of the important purposes that the Act is designed to serve and threatens to 'trivialize the plight of true victims' in the process." J.D. supra, 207 N.J. at 476 (internal citation omitted) (quoting Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995).
Applying these principles, we are satisfied that the record supports the court's finding of a predicate act of harassment. Defendant used offensively coarse language to plaintiff in repeated text messages after he felt spurned. See C.M.F. v. R.G.F., 418 N.J. Super. 396, 399, 404-05 (App. Div. 2011) (finding that use of the words "pig," "whore," "slut" and "fucking bitch" constituted offensively coarse language). Here, the court's finding of a purpose to harass may be inferred from the nature of defendant's attacks, his admission that his texts were "nasty," and his failure to present any evidence that his texts were provoked by any like communications by plaintiff. See Hoffman, supra, 149 N.J. at 577 (stating that a purpose to harass may be inferred from the evidence, informed by "common sense and experience").
However, we reach a different conclusion as to the second Silver prong. The judge failed to complete the two-step analysis. The court found a purpose to harass. Then the court found the predicate act of harassment "since it [didn't] appear that [defendant] will stop" unless a FRO were issued "to protect the plaintiff's personal property and prevent further abuse." In other words, the finding that defendant would not stop his harassing messages unless a FRO were issued was made in support of the court's "first-step finding" of a predicate act; as opposed to its "second-step finding" regarding the need for a FRO. The court stated that "given the length . . . and time of [the messages], et cetera, there's a need to enter a restraining order," without specific findings as to the "length" or "time." The court did not address defendant's assertion that communications had ended.
The risk of harm here is not "so great that the inquiry can be perfunctory." J.D., supra, 207 N.J. at 488. The predicate act involved annoying texts. Although plaintiff testified that defendant physically touched her in the courthouse hallway, the judge made no specific finding on the issue, stating only that he disbelieved defendant's claim that he did not recall who approached whom. The court's finding that a FRO was needed to prevent further abuse was unsupported by any explicit findings regarding a history of domestic violence. The court's reference to protecting plaintiff's personal property had no basis in the evidence. The court made no finding on the impact of the texts on plaintiff's well-being. Where the sole basis for a FRO is verbal harassment in the form of name calling, unaccompanied by actual or threatened physical violence to plaintiff or her property, Silver requires a more detailed analysis than presented here. We therefore remand for a re-hearing on the issue of the need for entry of the FRO.
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