Opinion
DOCKET NO. A-3271-13T4
08-10-2015
M.F., Plaintiff-Respondent, v. S.A., Defendant-Appellant.
John T. Coyle, attorney for appellant. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-1825-14. John T. Coyle, attorney for appellant. Respondent has not filed a brief. PER CURIAM
Defendant S.A. appeals from the final restraining order (FRO) obtained by his former girlfriend, plaintiff M.F., under the Prevention of Domestic Violence Act (Domestic Violence Act), N.J.S.A. 2C:25-17 to -35. We vacate and remand for further proceedings.
I.
Plaintiff and defendant began dating in about 2010. They broke up in June 2013. In early 2014, defendant and plaintiff communicated, largely by Facebook and text messages. On February 4, she obtained a temporary restraining order (TRO) charging terroristic threats and harassment.
The FRO hearing was held on February 20, 2014. Neither party had counsel. Plaintiff testified and put into evidence four exhibits: P-1 (text messages), P-2 (Facebook messages), and P-3 and P-4 (each a photo of plaintiff's arm in June 2013). Defendant testified and put into evidence two exhibits: D-1 (plaintiff's Facebook photo with her new boyfriend) and D-2 (Facebook messages). After hearing the testimony, the trial court found both plaintiff and defendant credible. The court did not find terroristic threats, but did find harassment. Defendant appeals.
We must hew to our limited scope of review of fact-findings in a domestic violence matter. Cesare v. Cesare, 154 N.J. 394, 411 (1998).
The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." Because a trial court "'hears the case, sees and observes the witnesses,Furthermore, "we give particular deference to matrimonial courts because they 'possess special expertise in the field of domestic relations.'" Peterson v. Peterson, 374 N.J. Super. 116, 121 (App. Div. 2005) (quoting Cesare, supra, 154 N.J. at 412-13).
[and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Therefore, an appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice."
[Id. at 411-12 (alterations in original; citations omitted).]
II.
Defendant correctly contends the trial court made no finding that he had a purpose to harass plaintiff. In its ruling, the trial court recited the language of the harassment statute, N.J.S.A. 2C:33-4(a): "a person commits a petty disorderly persons offense if, with purpose to harass another, he . . . [m]akes, 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." Ibid. The court's entire ruling on harassment was:
I do find the harassment, the offensively coarse language just on the documents, both D-2 as well as . . . P-2, the Facebook conversation that's going on between both of you for a number of days back and forth, back and forth and a number of different hours. And I do find that the language that's used there is offensive — offensively coarse and it caused annoyance and alarm from the plaintiff. . . . . [E]verything that you've submitted to me, to some extent, corroborates what the plaintiff has testified to with regards to this language going back and forth at inconvenient hours. And . . . she has made the harassment charge[.]
Thus, "the trial court was apparently aware of the relevant law, but made no specific finding that the purpose of defendant's conduct was to harass the plaintiff." Bresocnik v. Gallegos, 367 N.J. Super. 178, 180 (App. Div. 2004). The court's findings that defendant used "offensively coarse language" at "extremely inconvenient hours," and that it caused "annoyance and alarm," N.J.S.A. 2C:33-4(a), "would only qualify as a predicate act if it were . . . committed with a purpose to harass." J.D. v. M.D.F., 207 N.J. 458, 485 (2011). "[M]ere awareness that someone might be alarmed or annoyed is insufficient. The victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose." Id. at 487 (citation omitted).
"We have consistently required a 'purpose to harass' as an element of harassment under the Domestic Violence Act." State v. L.C., 283 N.J. Super. 441, 449 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996); see also State v. Hoffman, 149 N.J. 564, 576 (1997). In cases under the Domestic Violence Act, we have repeatedly reversed where "there was no finding that defendant acted with a purpose or intent to harass plaintiff, even though 'such a finding is integral' to a determination of harassment." E.g., Peterson, supra, 374 N.J. Super. at 123-24, 126 (reversing and remanding for a new trial); Bresocnik, supra, 367 N.J. Super. at 180-81, 183 (reversing where "the trial judge made no specific finding of a purpose to harass and the facts provide no support for such a conclusion"); D.C. v. T.H., 269 N.J. Super. 458, 462 (App. Div. 1994) (same); see also N.B. v. T.B., 297 N.J. Super. 35, 41 (App. Div. 1997); Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995).
For example, in L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523 (App. Div. 2011), we reversed the FRO "because the trial court did not find, and the evidence does not show, that defendant sent these text messages for the purpose of harassing plaintiff." Id. at 535. We noted the current "ability to instantaneously and effortlessly send electronic messages has created a gateway unfettered by reflection and open to rash, emotionally driven decisions." Id. at 534. Nonetheless, "without the requisite intent to harass his conduct was not actionable under the Domestic Violence Act." Id. at 536.
We must consider whether the absence of the finding requires us to reverse, to vacate and remand for further proceedings, or is harmless. Defendant asks us to reverse the FRO, arguing the evidence does not show he had the purpose to harass plaintiff. However, we cannot reach such a conclusion because defendant has failed to supply us with Plaintiff's Exhibits P-1 through P-4. It is the responsibility of an appellant to include in the appendix those "parts of the record," including exhibits, "as are essential to the proper consideration of the issues, including such parts as the appellant should reasonably assume will be relied upon by the respondent in meeting the issues raised." R. 2:6-1(a), (c). Without plaintiff's exhibits, "we are unable to review" defendant's claim of evidentiary insufficiency. State v. Cordero, 438 N.J. Super. 472, 489 (App. Div. 2014), certif. denied, 221 N.J. 287 (2015); see also Cipala v. Lincoln Technical Inst., 179 N.J. 45, 54-55 (2004).
At the conclusion of the hearing, the trial court returned the exhibits that both parties have submitted. Regardless of which party the exhibits were returned to, the exhibits "shall be preserved pending direct appeal . . . , and shall be made available for inclusion by any party in the record on appeal." R. 1:2-3.
"Where an appellant has not complied with R. 2:6-1, a respondent is to include the parts of the record necessary to complete the record." Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997) (citing R. 2:6-3). Here, plaintiff has not filed a brief in this appeal, let alone an appendix.
The transcript and defense exhibits defendant has provided us are inadequate to resolve the sufficiency issue either way. Plaintiff testified defendant called her at work over and over, but defendant denied that, stating he called only three times, in part because plaintiff told him to call back. The trial court, finding both credible, did not resolve that dispute or rely on the calls as harassment. Plaintiff testified that on the night of February 4, defendant was pacing on the street corner outside her house, but defendant said he was not there. The court stated to defendant, "I believe you that you weren't there," and did not rely on his alleged presence as harassment.
Plaintiff's remaining allegations of harassment concerned electronic communications. Our record of the Facebook and text messages is incomplete, as we lack Plaintiff's Exhibits P-1 and P-2, and have only Defendant's Exhibit D-2. We decline to rule that plaintiff submitted insufficient evidence when defendant has failed to provide us with plaintiff's exhibits. We review Exhibit D-2 only to determine whether the absence of a finding is harmless because a "'finding of a purpose to harass may be inferred from the evidence presented.'" J.D., supra, 207 N.J. at 477 (quoting Hoffman, supra, 149 N.J. at 577); see, e.g., State v. Duncan, 376 N.J. Super. 253, 261-62 (App. Div. 2005).
In the messages in Exhibit D-2 from January 30 through February 2, 2014, defendant's apparent purpose was to express regret, his continuing affection for plaintiff, and his hope for reconciliation, which does not support a finding of a purpose to harass. Bresocnik, supra, 367 N.J. Super. at 183. Plaintiff repeatedly responded, both discussing their former relationship and telling him to stop contacting her. She eventually said: "I'm signing off and I told my [boyfriend] already you['re] harassing me you will get blocked. Keep bothering me I'm going to the police, leave me alone. U said what you had to say."
Exhibit D-2 indicates that, on February 3, defendant sent one message to plaintiff: "You wanna play games you fucking whore all ur nudes go on Instagram." He called plaintiff a "[f]ucking demonic bitch," and said: "You forgot I get even bitch. U wanna go far like that I got u. . . . I got you don't worry bitch now you['re] gonna get attention."
It is unclear whether defendant could or did post naked pictures of plaintiff. She testified he never had pictures of her naked, so he got nude pictures of other women from a website and posted them, causing her to get "requests." The trial court did not resolve this issue or expressly rely on it in finding harassment.
This message to plaintiff "may or may not suffice to demonstrate defendant's intent" to harass, but "we cannot be confident that" it does "absent the trial court's explanation of its reasoning or its analysis." J.D., supra, 207 N.J. at 486. "[H]arassment is the predicate offense that presents the greatest challenges to our courts," given the difficulty of "[d]rawing the line between acts that constitute harassment . . . and those that fall instead into the category of 'ordinary domestic contretemps.'" Id. at 475 (quoting Corrente, supra, 281 N.J. Super. at 249-50). "[W]hen evaluating whether an individual acted with the requisite purpose," courts must consider whether the alleged conduct represents harassment or just "the interactions of a couple in the midst of a breakup of a relationship." Id. at 487 (citing Franklin v. Sloskey, 385 N.J. Super. 534, 544 (App. Div. 2006)). Here, defendant testified he "was just venting."
Exhibit D-2 shows that plaintiff's father took over the remaining messaging on February 3. Plaintiff's father told defendant to stop contacting his daughter, threatened to call the police and defendant's mother, and added: "if I grab you I'm going to make you remember the day you were born. If you have some balls call me[.]" There followed a vituperative exchange of messages on February 3 between defendant and plaintiff's father, in which the father called defendant "a fucking loser bastard" and "a fucking bum," and defendant told the father that plaintiff was a "piece of shit," a "dumbass," a "bubblegum headed bimbo," and a "slut." Defendant testified his messages with plaintiff's father were "a man to man thing" prompted by the father's aggressive comments. Moreover, Exhibit D-2 does not contain proof that defendant spoke to plaintiff's father "with purpose to 'cause' [him] to make a communication in a manner likely to cause annoyance or alarm to" plaintiff. State v. Castagna, 387 N.J. Super. 598, 605 (App. Div.), certif. denied, 188 N.J. 577 (2006). Absent such proof, defendant's comments about plaintiff to her father "could not serve as evidence of an intent" to harass plaintiff. J.D., supra, 207 N.J. at 486.
On February 4, defendant messaged saying, "I'm sorry about arguing with your dad but I'm not a bum or a loser." According to the trial court, defendant added: "I will leave you alone and I will delete all your naked pictures." Based on the above, we find the portion of the record before us inadequate to infer a finding of a purpose to harass that the factfinder did not make.
Plaintiff testified that on February 4, defendant messaged her father saying defendant was going to bash her fucking car in, that he wanted her to burn alive, that he wanted to F her in the ass, and that she was a bitch and a whore and should have been aborted. Exhibit D-2, at least, does not contain such messages. We note the court declined to find terroristic threats. --------
III.
Defendant also argues for reversal on the grounds that there was insufficient evidence to meet the second requirement for issuance of an FRO. "'The second inquiry . . . is whether the court should enter a restraining order that provides protection for the victim . . . . [T]he guiding standard is whether a restraining order is necessary . . . to protect the victim from an immediate danger or to prevent further abuse.'" J.D., supra, 207 N.J. at 475-76 (quoting Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006)). "[T]he court must consider the evidence in light of whether there is a previous history of domestic violence[.]" Silver, supra, 387 N.J. Super. at 126.
The trial court considered "the second prong, which is Silver v. Silver." The court ruled plaintiff established that "by the prior TRO that [she] had in 2011 in addition to the two photographs she submitted to the Court, the imminent threat to person or property, the likelihood of reoccurrence and the fear of safety . . . based upon her testimony."
We agree that plaintiff's testimony was sufficient to support the trial court's finding on the second prong. She testified that in August 2011, defendant had come to her workplace threatening to burn it down, and calling her a "cunt," causing her employers to call the police and tell her to get a new job or a restraining order. Plaintiff obtained a TRO against defendant on August 18, 2011, which she dismissed four days later. Plaintiff also testified she was scared of defendant because he had hit her arm on June 3, 2013, causing their break up. She introduced the pictures of the bruises on her arm.
Defendant corroborated these events to an extent in the messages in Exhibit D-2. He told plaintiff he still had "the restraining order that you cancelled." When her father cited "[t]he bruises from the last breakup," defendant replied: "Yea the bruises . . . . [Your] daughter bruises easily."
Defendant claims he was not permitted at the FRO hearing to explain these prior events. The trial court told defendant to address "what happened on February 4th, 2014." When defendant said "that day in 2011 . . . could be easily explained" but his only evidence was his "testimony from here on out," the court treated his testimony as over. When defendant said he had "a lot to say, like, that will explain from the beginning to end," the court replied, "this isn't a beginning to end, sir. This is a February 4th," and asked if he had any more evidence as to what occurred "on or about February 4th."
We understand the trial judge's concern that "I have a courtroom full of people that all want to tell me what happened in their particular situation." See Peterson, supra, 374 N.J. Super. at 124. Moreover, when defendant again indicated he could "explain[] the relationship to you so you could better understand," the judge replied: "Well, explain it, sir. I mean, let's go." However, defendant was not asked about the 2011 and June 2013 incidents, and his explanation did not address them. The judge then ruled that, given the "prior act of domestic violence that occurred in 2011, [and] the photographs that were submitted to this Court, I have to issue the final restraining order. . . . I have no choice."
Our Supreme Court stated in J.D., supra, 207 N.J. at 481:
Many litigants who come before our courts in domestic violence proceedings are unrepresented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires a high degree of patience and care. The pressures of heavy calendars and volatile proceedings may impede the court's willingness to afford much leeway to a party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount.We do not find defendant's rights were violated, but the concerns he raises inform our remedy.
As in J.D., the trial court here "did not sufficiently articulate" a crucial finding, "and our independent review of the [partial] record leaves us unsure that there is sufficient evidence to sustain the issuance of the order." Id. at 488. "Therefore, in an abundance of caution, and mindful of the Family Court's 'special expertise' and the [Domestic Violence] Act's protective purposes, we are constrained to remand this matter to the trial court for a re-hearing[.]" Ibid. This remedy will serve "to protect defendant's due process rights and to permit the trial court to evaluate the testimony and the evidence in accordance with the principles we have expressed." Ibid.
Accordingly, we vacate the FRO and remand for a new FRO hearing to be held promptly, within sixty days. The restraints imposed by the TRO will remain in place until the request for a FRO is resolved. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION