Opinion
DOCKET NO. A-4419-12T3
07-15-2014
R.C., Plaintiff-Respondent, v. D.U., Defendant-Appellant.
Howard W. Bailey argued the cause for appellant. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1890-13.
Howard W. Bailey argued the cause for appellant.
Respondent has not filed a brief. PER CURIAM
In this domestic violence (DV) proceeding, the trial court found that defendant D.U. committed harassment against plaintiff R.C., and that a final restraining order (FRO) was necessary. Defendant appeals from the FRO. We affirm.
I.
Plaintiff and defendant began dating when she was eighteen, and he was forty-five-years old. They dated for over ten years. Both parties categorized the relationship as "good" and "supportive," with no instances of physical abuse or threats. Plaintiff ended the dating relationship in 2010, although the parties stayed in loose contact.
On April 2, 2013, plaintiff obtained a temporary restraining order alleging harassment by defendant. Plaintiff and defendant testified at the FRO hearing on April 9, 2013. Plaintiff testified to the following.
About a year after their dating relationship ended, defendant started calling plaintiff at work and visiting her at her job and apartment. In the three years since their relationship ended, defendant "called [her] up at shorter and shorter intervals," trying to compel her to discuss the relationship.
Moreover, defendant visited plaintiff, unannounced, at her apartment twice in a nine-month period spanning from 2011 to 2012. On those occasions, they had "very emotional" and "very heated" discussions. Defendant also visited plaintiff at work in November 2012, attempting to rekindle a social relationship. They spoke for an hour, after which defendant left, leaving plaintiff with "the impression that everything was settled," and that they "would have no more contact."
On February 2, 2013, defendant called plaintiff, telling her "he was going to ruin [her] wedding," and was "going to make his presence known" at her wedding. Defendant also told plaintiff she "never paid a price for what she did," and she "should pay a price."
On March 18, 2013, defendant again called plaintiff. However, on that occasion plaintiff immediately told defendant that she "didn't want to have any further contact with him," and then hung up on him.
On March 25, 2013, plaintiff's mother received a phone call from an unidentified female caller, claiming to be a friend of plaintiff. The woman asked for the location of plaintiff's wedding. Plaintiff later determined that defendant had viewed her LinkedIn profile "shortly before [the] phone call came." The information provided by the caller to plaintiff's mother was incorrect but consistent with incorrect information on plaintiff's online profile. Based on those circumstances, plaintiff believed defendant "asked someone to call" her mother to find out where her wedding would be held.
On April 1, 2013, plaintiff received a voice message from a mutual friend of plaintiff and defendant. The woman's message, captured on a tape recording introduced into evidence, stated: "[Y]ou know how he gets when he gets something in his head. I can try to talk him down[;] I'm not sure, I'm worried. Give me a call back." Plaintiff returned the call, and the friend told her defendant "wanted to talk" to her. Plaintiff informed the friend that she would not speak with defendant.
Defendant testified, denying many of plaintiff's allegations. He testified that, during their relationship, he supported plaintiff "as a boyfriend," "mentor," "teacher," and "father figure." He claimed that he had helped plaintiff through "many problems," but plaintiff still "doesn't have an ability to feel empathy." Defendant also described plaintiff during "the breakup process" as "destructive, cruel, and unfeeling as a person could be."
Defendant testified that plaintiff's refusal to continue having a social relationship with him sent him "tail spinning." He stated that he "only and always wanted the best for" plaintiff. However, because plaintiff "developed a relationship" with another person "while [they were] still together," plaintiff had "betrayed" him.
Defendant revealed that after learning plaintiff was getting married, he visited plaintiff at her work because that was the only way he could get plaintiff to talk to him, even though he knew plaintiff "is not very good at confrontation." He testified that, when he confronted her at work, plaintiff "essentially said everything she thought [he] wanted to hear, including how she betrayed [him], and that she was sorry." However, he believed plaintiff's apology was "a construction," and that she was merely telling him "anything she needed to tell [him] to get rid of" him.
Defendant admitted telling plaintiff, in the February phone call, that he would "make [his] presence known" at her wedding. He conceded that he made the February call as a "psychological ploy" "to put that in her head," and that he had "the intent to bother" plaintiff. He claimed, however, that he did not intend to ruin her wedding, and denied using the word "ruin." He further admitted to telling plaintiff she had a "price to pay," yet insisted the statement could not be interpreted as a threat because there was no history of violence in the relationship.
Defendant denied knowing "anything about the call" to plaintiff's mother on March 25, 2013. He admitted to speaking with the mutual friend about how upset he was regarding plaintiff and "what she did," and the promise he had made to plaintiff to "dance at her wedding." He denied, however, asking the friend to call plaintiff. He claimed the friend "was not that worried," and that the friend called plaintiff "on her own," because "she wanted to defuse the issue." He then testified that he never contacted plaintiff after she asked him to stop calling her and that communications with the mutual friend do not "count for anything."
At the conclusion of the FRO hearing, the trial court found defendant caused the mutual friend to call plaintiff. The court found defendant committed two acts of harassment, namely defendant's February 2 call and the April 1 call by the mutual friend. The court cited defendant's admission that he intended to bother plaintiff when he called her on February 2, and defendant's description of the call "as a psychological ploy on his part." After listening to the April 1 voicemail twice, the court stated, "[i]t was apparent to me that [the mutual friend] was concerned that the defendant might do something that would be a problem for the plaintiff." Finally, the court found it clear "from the defendant's testimony and his questioning of the plaintiff that he still has deeply felt, strongly [] emotional . . . feelings about the relationship, the way it ended, and . . . how he feels plaintiff wronged him. More than once [defendant] said it's about betrayal."
The court then found an FRO was necessary to protect plaintiff from "continued harassing communications" by defendant, and granted an FRO to plaintiff. Defendant appeals.
II.
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 cases, sees and observes the witnesses, [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."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).
[Id. at 411-12 (citations omitted).]
Defendant argues that there was insufficient evidence for the family court to have found that he committed harassment. Under N.J.S.A. 2C:33-4(a), a person commits harassment if he, "with the purpose to harass," "[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.; see State v. Hoffman, 149 N.J. 564, 576 (1997). In DV proceedings, harassment need be proved only by a preponderance of evidence. C.M.F. v. R.G.F., 418 N.J. Super. 396, 401-02 (App. Div. 2011).
III.
The trial court found two acts of harassment, based on the February 2 and April 1 phone calls. However, the February phone call was listed in the "prior history" section rather than the predicate act section of the complaint. This raises an issue of notice.
"[D]ue process forbids the trial court '"to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.J.D. v. M.D.F., 207 N.J. 458, 478-79 (2011) (quoting H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003) (quoting J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998))). "[I]t is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint." L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999).
Here, defendant's February call was alleged in plaintiff's complaint, albeit in the prior history section. Thus, "[t]his is not a situation like J.F. v. B.K., where the predicate offense of the domestic violence finding was based upon conduct not set forth in the complaint." Pazienza v. Camarata, 381 N.J. Super. 173, 185-86 (App. Div. 2005).
At trial, defendant "did not assert surprise or prejudice by lack of notice and did not request an adjournment to enable him to prepare to meet the allegations." Id. at 185. Defendant appeared to "know full well the history that plaintiff recites and some parties will be well-prepared regardless of whether the testimony technically expands upon the allegations of the complaint." J.D., supra, 207 N.J. at 480.
Indeed, defendant, who is an attorney, did not appear concerned about notice. He told the trial court that he had only received the summons the day before the hearing, and it did not have the complaint attached to it. Defendant nonetheless assured the court that was "not a problem. And I'm waiving jurisdictional defects on this, because I think it's more important to me to say what I need to say." On appeal, defendant has not challenged "and has asserted no prejudice from" the trial court's consideration of this prior act as a predicate offense. Pazienza, supra, 381 N.J. Super. at 186.
Nevertheless, it is not necessary to resolve the issue of notice, which defendant does not raise on appeal. The court found two harassing communications, but under N.J.S.A. 2C:33-4(a) "there need only be proof of a single such communication." J.D., supra, 207 N.J. at 477. Any error in considering the February call as a predicate act was harmless because the April call, considered in light of the prior history of the February call, is sufficient to constitute harassment. See Pazienza, supra, 381 N.J. Super. at 186.
IV.
The April call is sufficient to constitute harassment if "defendant's purpose in making it, or causing it to be made by another, was to harass and as long as it was made in a manner likely to cause annoyance or alarm to the intended recipient." J.D., supra, 207 N.J. at 477. Defendant contends that there was insufficient evidence to find that he caused the mutual friend to make the April phone call to plaintiff, or that he had the intent to harass plaintiff. The record refutes defendant's arguments.
A.
The trial court properly found defendant caused the mutual friend to make the April phone call. To show that defendant caused the friend to make a harassing communication, plaintiff must show that it was defendant's "'conscious object' to bring about that result." State v. Castagna, 387 N.J. Super. 598, 605 (App. Div.) (quoting N.J.S.A. 2C:2-2(b)(1)), certif. denied, 188 N.J. 577 (2006). "There is rarely direct proof of intent, and purpose may and often must be inferred from what is said and done and the surrounding circumstances," including "[p]rior conduct and statements." Id. at 606.
Here, defendant's prior conduct and statements provide evidence that "defendant spoke with a purpose to harass his [ex-girlfriend] through another." Ibid. First, as the trial court found, defendant's increasingly frequent and often emotional attempts to contact plaintiff showed he found it "unacceptable" for plaintiff to end their relationship permanently. Second, on February 1 defendant called plaintiff, threatening to disrupt her wedding because she should pay a price for what she did. Third, on March 18, plaintiff told defendant to stop contacting her. Fourth, on March 25, defendant accessed her LinkedIn profile and shortly thereafter an unidentified caller, apparently relying on information from that profile, called plaintiff's mother trying to get information about plaintiff's wedding. Defendant's efforts to get plaintiff to talk with him, his expressed threat to disrupt her wedding, and his apparent use of a third person to gain information about the wedding, provide powerful evidence that defendant would again enlist a third person, and use the same threat to get plaintiff to talk to him without violating her ban of him contacting her directly.
Although the trial court did not find the March 25 call to be an act of harassment, the evidence concerning that call supports the court's finding that the April 1 call was such an act.
Moreover, the circumstances of the April 1 call strongly support the trial court's finding that defendant caused the friend "to make the communication." Id. at 605. Defendant admittedly spoke to the mutual friend and conveyed his feelings about plaintiff's wedding and his intent to "make his presence known" at the wedding. The mutual friend did, in fact, communicate to plaintiff that defendant had "something" in mind from which she might not be able to "talk him down," that she was worried, and that defendant wanted plaintiff to call him.
Considering "the totality of the circumstances," in light of the family judge's "special expertise in the field of domestic relations," Cesare, supra, 154 N.J. at 404, 412, the trial court could properly infer that, by informing the mutual friend that he intended to carry out the threat he had made to plaintiff in February, defendant's purpose was that the friend would "make a communication [to plaintiff] in a manner likely to cause annoyance and alarm." Castagna, supra, 387 N.J. Super. at 605. The evidence was thus sufficient to show "that when defendant spoke to [the mutual friend] it was his conscious object to use [her] as an instrument of harassment." Ibid.
In his brief, defendant characterizes the mutual friend's statements in the April phone call, and plaintiff's testimony about the March call to her mother, as hearsay. However, he made no hearsay objection at trial and does not argue in this appeal that those statements should not have been admitted. Thus, we do not address whether the statement was hearsay, N.J.R.E. 801(c), 803(b), or whether defendant can show plain error, R. 2:10-2. Defendant does argue that the hearsay nature of the statement goes to the weight of the evidence. However, determining the weight of the evidence is primarily a matter for the fact finder. See State v. Hess, 207 N.J. 123, 184 (2011) ("[A]s with any other evidence proffer, persuasiveness is not measured by its proponent, but by the fact-finder.").
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B.
There is also ample evidence demonstrating defendant's intent to harass plaintiff. "The term 'harass' should be given its common meaning," including to "annoy." Castagna, supra, 387 N.J. Super. at 607. Furthermore, "annoyance means to disturb, irritate, or bother." Hoffman, supra, 149 N.J. at 580. A purpose to harass may be inferred "'from the evidence presented,'" in light of the fact finder's "'[c]ommon sense and experience.'" J.D., supra, 207 N.J. at 477 (quoting Hoffman, supra, 149 N.J. at 577)
Here, defendant admitted having "the intent to bother" plaintiff when he threatened, in February, to "make [his] presence known" at her wedding. He conceded that call was a "psychological ploy" designed to disturb her, and that he felt plaintiff had "a price to pay" for rejecting him.
The trial court properly found defendant had the same intent to bother plaintiff when he caused the mutual friend to call her in April. The court appropriately found defendant's reiteration, through the mutual friend, of his threat to disrupt plaintiff's wedding was intended to harass and "was made in a manner likely to cause annoyance or alarm to the intended recipient." J.D., supra, 207 N.J. at 477.
The court's finding that defendant intended to harass plaintiff is supported by defendant's admitted prior conduct in the months leading up to the April call. Despite knowing plaintiff was "not very good at confrontation" and "prone to anxiety," defendant repeatedly came to her apartment and workplace unannounced because he "knew she would not consent" if he called her, and the only way he could speak with her "was to just show up," resulting in emotional confrontations. "[T]he unwanted contacts initiated by defendant were frequent and their nature demonstrated a continuing emotional attachment on defendant's part and an effort to control plaintiff's behavior and to harass her." Tribuzio v. Roder, 356 N.J. Super. 590, 597 (App. Div. 2003).
As the trial court noted, defendant's admission that he was upset by what he perceived as plaintiff's betrayal was also relevant to assessing defendant's motives in making the April phone call. See C.M.F., supra, 418 N.J. Super. at 404. Defendant contends that, because the defendant's outburst in C.M.F. occurred contemporaneously with the event that caused that defendant's anger, C.M.F. is inapposite, and the family judge erred in considering that he was "upset at an earlier time." Defendant asserts, because the April call occurred weeks after the last contact between the parties, the phone call from the mutual friend cannot be attributed to defendant being "upset" prior to March 2013. As the judge is directed to consider the totality of the circumstances, Cesare, supra, 154 N.J. at 404, defendant's argument is meritless.
V.
"The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim." Silver v . Silver, 387 N . J . Super . 112, 126 (App. Div. 2006). While this second inquiry is "often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary . . . to protect the victim from an immediate danger or to prevent further abuse." Id . at 127, quoted in J.D., supra, 207 N.J. at 475-76; see N.J.S.A. 2C:25-29(b).
Though defendant does not explicitly challenge the trial court's evaluation that a restraining order was necessary, he makes an indirect argument by asserting plaintiff's "well being" was not threatened. Defendant bases this contention on the absence of physical abuse, and on his cross-examination of plaintiff, in which plaintiff conceded that she "suppose[d] [the phone call from the mutual friend] doesn't" pose a threat to her "well being."
The trial court correctly concluded that the FRO was necessary to prevent further acts of "harassing communications from the defendant to the plaintiff." The court discredited defendant's assertion that no abuse existed, appropriately noting that abuse does not have to be physical. "The protections of the Act are available to victims not only of physical abuse . . . , but also of emotional abuse." N.G. v. J.P., 426 N.J. Super. 398, 412 (App. Div. 2012). Therefore, plaintiff's comment about her "well being" is not dispositive of the need for an FRO.
The court properly considered plaintiff's testimony and the history between the parties, finding defendant contacted plaintiff with increased frequency over time. The court found that, despite "clear recognition that communication from him was unwelcome to her," defendant continued to contact plaintiff, exploiting his knowledge of her anxiety and fragilities.
The trial court also identified defendant's heightened emotional state during the trial proceedings, concluding defendant utilized the trial as an opportunity to force plaintiff to "listen to [defendant] recite his feelings and his views on the relationship," which are "things that [plaintiff] no longer wants to hear." This too indicated a continuing need for protection.
We agree that defendant's history of forcing unwanted communications, his threats to disrupt plaintiff's wedding, his resort to third person harassment, and the immediate danger of further abuse of plaintiff, warrant a need for an FRO to protect plaintiff from further harassment. The harassment in this case exceeded the domestic contretemps found not to constitute abuse in cases cited by defendant, Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995), and Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995). We find no basis for disturbing the trial court's findings.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION