Opinion
DOCKET NO. A-2590-12T2
01-27-2014
L.T., Plaintiff-Respondent, v. T.C., Defendant-Appellant.
Gary E. Fox argued the cause for appellant (Fox & Melofchik, L.L.C., attorneys; Dennis J. Melofchik, on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1045-13.
Gary E. Fox argued the cause for appellant (Fox & Melofchik, L.L.C., attorneys; Dennis J. Melofchik, on the brief).
Respondent has not filed a brief. PER CURIAM
Defendant appeals from a January 4, 2013, final restraining order (FRO) under the Protection Against Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Defendant's former girlfriend obtained the order after the court found defendant committed acts of harassment and stalking against her. See N.J.S.A. 2C:33-4 (defining harassment); N.J.S.A. 2C:12-10 (defining stalking); N.J.S.A. 2C:25-19(a)(13) and -19(a)(14) (defining harassment and stalking as acts of domestic violence). We reverse the FRO, reinstate the temporary restraining order, and remand to the trial court for further findings of fact and conclusions of law.
I.
The parties began a dating relationship in February 2012. Plaintiff testified that she ended the relationship on August 3, 2012, after they took a trip together and she decided they were not compatible. Defendant added that the parties broke up four times during their six-month-long relationship. One breakup followed a dispute over a birthday present he gave her on July 1, 2012.
Plaintiff alleged a history of domestic violence involving acts of criminal mischief and trespassing. The court credited plaintiff's version of one incident — involving defendant's unauthorized entry into plaintiff's home after they broke-up. Plaintiff testified that one morning in August 2012, at around 7:00 a.m., she awoke to find defendant standing in her bedroom. She asserted he had no key to her home; they had already broken up; and his presence was unauthorized and frightening. She said that he attempted to speak to her in order to persuade her to renew their dating relationship. She said that she did not engage in the conversation and screamed at him to leave, which he did. She testified that she did not call the police because "I guess I was just too freaked out." She did not allege that defendant attempted to touch her.
The court rejected defendant's testimony that his early morning entry into plaintiff's home occurred on July 4, 2012, while the parties still maintained a relationship, notwithstanding their disagreement three days earlier. He said he entered through an open sliding door and did not ring the bell so as not to disturb plaintiff's sleeping teenagers.
The court found plaintiff's claims of other prior incidents to lack competent evidential support. Plaintiff claimed that defendant was responsible for unobserved acts of vandalism involving her vehicles, and cut telecommunications lines to the home. Defendant testified that plaintiff had an ongoing dispute with her neighbors and called the police multiple times to complain about them. He also testified that plaintiff had a contentious relationship with her ex-husband over child support and alimony. He suggested that a neighbor or the ex-husband could have been responsible for the criminal mischief.
Notwithstanding defendant's unwelcome visit to her home in August, plaintiff admitted that she visited defendant at his home in September, to return a power tool that he had left at her home. Although she did not include the interaction in her assertions of prior history, she testified on cross-examination, "It took me over two hours to leave his driveway because he wouldn't let me go. He was throwing himself on top of me inside of my car, driver's seat. Talk about scared." She stated that defendant misinterpreted her visit as an indication that she might want to renew the relationship and he was responsible for the length of the conversation. On the other hand, defendant testified that during the September visit, plaintiff responded positively to defendant's request that they remain friends, although she advised him not to involve her children. Defendant also insisted that plaintiff did not tell him not to contact her in the future. The court did not make fact-findings regarding the September visit.
Turning to the predicate acts, plaintiff testified that after the break-up, the small real estate office where she worked would receive telephone calls, but when she got on the line, the caller would hang up. She said her office was in a remote rural area and she sometimes worked there alone. She suspected that defendant was calling to ascertain her presence at work. Plaintiff testified that she received one such hang-up call on December 14, 2012, when her boss was absent. Afterwards, she left the office for an appointment. She alleged that as she drove away from her office, she passed defendant on the road. She suspected that defendant was on the way to her office. Although nothing else happened that day, she testified she felt "paranoid" afterwards. With respect to this incident, the court found plaintiff more credible than defendant, who denied making hang-up calls or driving near plaintiff's office on December 14, 2012, and asserted he was at work that day.
The court also credited plaintiff's version of an incident a week later. It was undisputed that defendant entered plaintiff's workplace on December 21, 2012 when her boss was absent. Plaintiff testified that she was frightened by his appearance. She asked him to leave, but he refused. He walked to her desk and tried to hug and kiss her, which frightened her. "He knows I'm alone there. Thank God, he didn't have a gun or something because I would have been dead. And that's how I feel." Plaintiff testified she called 911 and defendant remained in the office until police arrived. Police declined to arrest defendant after plaintiff stated she would seek a temporary restraining order, and defendant promised not to contact plaintiff. The trial court, by a different judge, entered a temporary restraining order that day.
Plaintiff testified that she remained in fear of defendant as of the date of the final hearing. She alleged that defendant lingered at the courthouse entrance and hallway, apparently in order to have contact with her.
Defendant explained that he visited plaintiff's office because he "wanted to wish her a Merry Christmas, see if she needed any kind of assistance. I wanted to take her to lunch and maybe go Christmas shopping. That's why I was there." He said plaintiff called the police immediately. "I didn't have a chance to leave. . . . I went and stood by the door until the police got there. I didn't want to get in my car and drive away and have the police chase after me is why I stayed in her office."
The court held that the facts supported a finding of harassment and stalking.
The Plaintiff asserts that the Defendant stalked her and harassed her. The Plaintiff bears the burden of proof of facts essential to those claims and assertions. Harassment — we'll start with that — involves making, or causing to be made, communications which would cause someone alarm, engaging in a course of alarming conduct, or of repeated acts with purpose to alarm or seriously annoy. Stalking includes acts including a course of conduct repeatedly maintaining physical proximity to a person.
I found the Plaintiff credible in her testimony that the Defendant was near and in her office in December. The question is whether he did so with purpose to cause a reasonable person [to] fear for her safety or to suffer other emotional distress.
The parties were involved in a romantic relationship which ended at least by August, if not September, so that was months before the time that the phone calls were made to the office, no one responded, and shortly thereafter, the Defendant was driving — and he did not live near the Plaintiff's office — and entering her office. He had no reason to enter other than to approach the Plaintiff. And she says that he approached her, tried to touch her, tried to embrace her, and so on.
A person is guilty of stalking if he purposely and knowingly engages in a course of conduct directed at a specific person, as I said earlier, that would cause a reasonable person to fear for his or her safety or suffer other emotional distress. And I find that the Defendant's actions were purposely undertaken and would cause a reasonable person, and did cause [L.T.] to suffer emotional distress. She's out in an area, Millstone Township, which is rural. The Defendant knows months before this time that [L.T.] does not want to continue their affair. He was uninvited. He entered. And I do find that he approached her and caused her emotional distress and that that was reasonable for her to feel given the history that I have described.
Consequently, I find that the Plaintiff has sufficiently proven her acts alleged, that it was done purposefully, that it was alarming and caused fear to the Plaintiff. They had a relationship. The Defendant wanted to continue that relationship. He showed up unannounced and unwanted at her isolated place of business, and I find that he engaged in harassment and stalking, constituting domestic violence.
Without any further findings, the court entered a FRO. This appeal followed.
Defendant argues there was insufficient credible evidence in the record to sustain the court's findings of predicate offenses. He also argues that the court failed to make essential findings that a restraining order was necessary to protect plaintiff, as required by Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). He also asks us to exercise original jurisdiction to find the FRO was unnecessary. Having considered defendant's arguments in light of the record and governing legal principles, we affirm the trial court's findings of the predicate offense of stalking, but we are constrained to remand for further findings regarding the predicate offense of harassment and regarding the need for a FRO, consistent with Silver.
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).
The Criminal Code 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.]
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). But, an essential element of each form of harassment is proof of a purpose to harass. See State v. Hoffman, 149 N.J. 564, 576-77 (1997). A plaintiff's assertion that he or she felt harassed is not sufficient to prove 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 Supreme Court has emphasized the care that a trial court must exercise in distinguishing between the ordinary disputes, disagreements, and irritations common in a domestic relationship, and those actions that cross the line into domestic violence. Id. at 475-76. In J.D., 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 the plaintiff's home in the early morning hours to document her cohabitation with another man, which the defendant intended to use to support an effort 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 the defendant-father had the purpose to harass. He repeatedly texted his former wife to obtain information about their daughter's academic performance.
Subsection (a) of N.J.S.A. 2C:33-4 is generally focused on the mode of speech employed, and not a statement's content. Hoffman, supra, 149 N.J. at 583-84. The "catchall provision of N.J.S.A. 2C:33-4(a)," which prohibits communications made in "any other manner likely to cause annoyance or alarm," should "generally be interpreted to apply to modes of communicative harassment that intrude into an individual's 'legitimate expectation of privacy.'" Hoffman, supra, 149 N.J. at 583 (citation omitted). However, in applying the statute, a court may not ignore the content of the relevant statement. For example, we found harassing under subsection (a) a former boyfriend's text message to the plaintiff when she was home alone with her daughter, "I can see you are watching Desperate Housewives now." Pazienza v. Camarata, 381 N.J. Super. 173, 178, 183-84 (App. Div. 2005) (emphasis omitted). Although the defendant actually was far from the scene, the statement led the plaintiff to believe she was being watched, and made her upset, alarmed, and fearful for her and her daughter's safety. Id. at 178. We held that the "the nature and content of the message intruded upon plaintiff's legitimate expectation of privacy." Id. at 183-84 (emphasis added).
A person commits fourth-degree stalking "if he [or she] purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his [or her] safety or the safety of a third person or suffer other emotional distress." N.J.S.A. 2C:12-10(b). A "course of conduct" is defined as:
repeatedly maintaining a visual or physical proximity to a person; directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person's property; repeatedly committing harassment against a person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person."Repeatedly" means twice or more. N.J.S.A. 2C:12-10(a)(2). "Emotional distress" means "significant mental suffering or distress." N.J.S.A. 2C:12-10(a)(3).
[N. J.S.A. 2C:12-10(a)(1).]
Unlike the harassment statute, the anti-stalking statute does not require that the offender subjectively intend to cause the victim distress; the statute applies an objective test:
[W]e do not discern a legislative intent to restrict the applicability of the anti-stalking statute to a stalker-defendant who purposefully or knowingly intended that his course of conduct would cause a reasonable
victim to fear bodily injury or death. Rather the plain language of the statutory offense, reasonably read, prohibits a defendant from purposefully or knowingly engaging in a course of conduct, as defined in N.J.S.A. 2C:12-10(a)(1), that would cause such fear in an objectively reasonable person. A statute's culpability requirement generally applies to all elements of a crime unless a contrary intent may be discerned. N.J.S.A. 2C:2-2(c)(1). Here we find such a contrary intent. We find that the Legislature intended to cast a wide net of protection for stalking victims by broadly prohibiting and punishing persistent, unwanted, and frightening behaviors. The claimed innocent intention of one with an unrequited love interest in another does not permit an individual to stalk the other with impunity.
We hold that the statutory offense reaches and punishes one who engages in a course of stalking conduct even if the person is operating under the motivation of an obsessed and disturbed love that purportedly obscures appreciation of the terror that his or her conduct would reasonably cause to the victimized person.
[State v. Gandhi, 201 N.J. 161, 187 (2010).]
Applying these principles, we are not satisfied that the trial court made the requisite finding that defendant had the subjective purpose to harass, to support the conclusion that he committed the predicate offense of harassment. The court omitted the element of a purpose to harass in describing the offense. Although the court stated that defendant acted purposefully, it is unclear whether the court meant only that defendant purposefully engaged in the conduct that the court found regarding the hang-up call and apparent attempt to visit on December 14; and the visit, refusal to leave, and attempt to embrace, on December 21.
The court properly addressed the alleged prior acts of domestic violence, and found that defendant previously appeared unannounced and uninvited in defendant's bedroom after they had broken-up — an incident that frightened plaintiff. However, the court made no finding that the visit was made with the purpose to frighten, alarm or annoy, as opposed to an ill-advised attempt to achieve a reconciliation.
The court adequately addressed the remaining elements of harassment. Although the court did not expressly state that defendant intruded on plaintiff's legitimate expectation of privacy, that was the import of its finding that defendant appeared uninvited in plaintiff's remote office when she was alone. Moreover, the court credited plaintiff's versions of events; defendant did not harmlessly propose to have lunch or go shopping. He made an effort to have physical contact with her, despite her request that he leave. Thus, the court focused not merely on the content of defendant's communications, but on the mode of communication. The court found, with adequate support in the record, that defendant's communications were likely to, and in fact, did cause annoyance and alarm. See N.J.S.A. 2C:33-4(a). Also, defendant's unwelcome attempt to embrace plaintiff, despite her protests that he leave, constituted an attempt to engage in offensive touching. N.J.S.A. 2C:33-4(b). Inasmuch as the court failed to address adequately the "purpose to harass" element of harassment, we remand to the court to do so.
On the other hand, we have no difficulty in affirming the court's finding that defendant committed the predicate act of stalking. The court found that defendant made the call on December 14, hung up, and then passed plaintiff on the road. The court also found that a week later, defendant appeared uninvited and unannounced at defendant's isolated office, where she worked alone, and he attempted to touch her and embrace her. The court found that defendant's conduct alarmed and frightened plaintiff, and caused her emotional distress. The findings of these two incidents supported the court's conclusion that defendant's conduct constituted stalking. Defendant's actions during these two incidents constituted a course of conduct. Applying the objective standard of mens rea, the evidence supported the court's finding that defendant acted purposefully — regardless of whether he was motivated by a desire to revive his relationship that blinded him from seeing how his actions would affect plaintiff. Defendant's actions were the sort that would cause a reasonable person to suffer emotional distress, and did in fact cause plaintiff such distress.
Although we do not disturb the court's finding that defendant committed the predicate act of stalking, we are constrained to vacate the court's entry of the FRO because the court failed to address plaintiff's need for a restraining order. We stated in Silver, supra, that issuance of a FRO does not inexorably follow from a finding of a predicate act. The court must engage in a separate inquiry regarding the need for restraints. 387 N.J. Super. 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).
[Id. at 127.]
As the J.D. Court observed, "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." Supra, 207 N.J. at 476 (quoting Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995)).
The court here did not perform this second inquiry. While the record may support a finding that a restraining order is needed to protect plaintiff, it is not for us to decide based on the cold record. Rather, the decision should appropriately be made by the trial court, which has the benefit of its feel of the case, and its assessment of plaintiff's credibility. Gac v. Gac, 351 N.J. Super. 54, 64 (App. Div. 2002) (citing R. 1:7-4), rev'd on other grounds, 186 N.J. 535 (2006).
In sum, we reverse the FRO, reinstate the temporary restraining order, and remand to the trial court for additional findings of fact and conclusions of law regarding the allegation that defendant committed the predicate act of harassment, and whether plaintiff needs the protection of a restraining order, consistent with Silver.
Reversed in part 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