Opinion
DOCKET NO. A-5726-10T4
04-02-2012
R.B., Plaintiff-Respondent, v. S.A.L., Defendant-Appellant.
Jane A. Herchenroder argued the cause for appellant. Britt J. Simon argued the cause for respondent (Simon Law Group, attorneys; Mr. Simon, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and St. John.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-1043-11.
Jane A. Herchenroder argued the cause for appellant.
Britt J. Simon argued the cause for respondent (Simon Law Group, attorneys; Mr. Simon, on the brief). PER CURIAM
Defendant S.A.L., the former cohabitant of plaintiff R.B., appeals from a restraining order entered pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35.
Defendant received a final restraining order against R.B. a week earlier.
In his complaint, R.B. claimed defendant committed acts of harassment contrary to N.J.S.A. 2C:33-4 when she followed him in her automobile from his place of work to a Dunkin' Donuts, walked past him at the entrance, and briefly followed him when he left. R.B. also alleged that he received several telephone calls from a third party harassing him about him and his relationship with defendant. Neither party could identify the caller.
Defendant testified that she was not at R.B.'s place of work, but admitted she went to the Dunkin' Donuts to pick up dinner for herself and her daughter. The parties crossed paths at the entrance. Defendant stated she became so flustered by the encounter that she left without purchasing dinner, returned to her car and drove home. She admitted that she previously had called R.B.'s father in an attempt to obtain money R.B. owed her.
The trial judge found R.B. more credible than defendant and accepted his testimony. The judge found R.B. "fe[lt] harassed and threatened by [defendant's] actions, not physically threatened, but threatened in the sense as to what is intended by [] defendant."
We assume the trial judge entered the order under N.J.S.A. 2C:33-4c because no other subsection fits his findings. Notably, the judge found defendant was not the unidentified caller thereby eliminating subsection a as a basis for the order.
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Based on these findings, the judge entered the final restraining order on June 16, 2011, which is the subject of this appeal. We reverse because the facts adduced at trial do not permit finding as a matter of law that defendant harassed R.B.
Our review of a trial court's findings of fact is limited. Such findings are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). We defer to the trial judge because he has the opportunity to observe the witnesses as they testify and is in a unique position to assess the credibility of each witness. Pascale v. Pascale, 113 N.J. 20, 33 (1988). We will not disturb the factual findings of the trial judge unless we are convinced they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484. On the other hand, we review questions of law de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A final restraining order issued under the Act first requires a predicate "finding or an admission . . . made that an act of domestic violence was committed by [defendant]." N.J.S.A. 2C:25-29a. See also R. 5:7A. The court's role is two-fold. First, it must find that the predicate offense is supported by a preponderance of the evidence. N.J.S.A. 2C:25-29a; J.D. v. M.D.F., 207 N.J. 458, 474 (2011). Second, it must determine whether to issue the order, i.e., "'whether a restraining order is necessary, upon an evaluation of the facts set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), 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, 127 (App. Div. 2006)).
N.J.S.A. 2C:33-4 defines harassment as follows:
Except as provided in subsection e., a person commits a petty disorderly offense if, with purpose to harass another, he:A violation of N.J.S.A. 2C:33-4(c), therefore, requires a purpose to harass another and "a course of alarming conduct or repeated acts designed to alarm" the victim. Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988). A "'serious' annoyance or alarm . . . means 'to weary, worry, trouble or offend.'" J.D., supra, 207 N.J. at 478 (quoting State v. Hoffman, 149 N.J. 564, 581 (1997)); see McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007) (sending explicit photographs of the plaintiff to her sister and threatening to send them to the plaintiff's son and workplace constitutes harassment); Pazienza v. Camarata, 381 N.J. Super. 173, 180, 184 (App. Div. 2005) (sending the plaintiff a text message claiming that the defendant could see her watching a specific television program, even though untrue, constitutes harassment).
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.
In contrast, innocuous conduct or mere assertions that the defendant's conduct is harassing are insufficient to support an order. J.D., supra, 207 N.J. at 484. For example, in Chernesky v. Fedorczyk, we held that calling and visiting the plaintiff's property does not constitute harassment. 346 N.J. Super. 34, 40 (App. Div. 2001). In L.D. v. W.D., we held that calling the plaintiff's place of work to state that the defendant had moved her desk at home and had taken the children to counseling in place of choir practice did not constitute harassment. 327 N.J. Super. 1, 3-4 (App. Div. 1999). In J.F. v. B.K., we held that leaving a non-threatening letter on the plaintiff's windshield did not constitute harassment. 308 N.J. Super. 387, 391 (App. Div. 1998).
As in Chernesky, L.D., and J.F., defendant's conduct, as found by the trial judge, is innocuous conduct not of the nature to cause serious annoyance or alarm. Moreover, a trier-of-fact cannot discern from the benign conduct that defendant acted with the purpose to harass R.B. or that her conduct caused alarm or seriously annoyed him. "[A]bsent a showing of surrounding circumstances which could support a finding that such ordinarily innocuous conduct constituted an act of harassment within the intent of N.J.S.A. 2C:33-4, such conduct could not establish the predicate crime for a finding of domestic violence." J.F., supra, 308 N.J. Super. at 391. This record contains no such surrounding circumstances. We, therefore, reverse the June 16, 2011 final restraining order.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION