Opinion
DOCKET NO. A-5118-12T2
01-09-2015
R.J., Plaintiff-Respondent, v. R.J., Defendant-Appellant.
Law Offices of Jef Henninger, attorneys for appellant (Jef Henninger, of counsel and on the brief; Ciro A. Spina, on the brief). Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A., attorneys for respondent (Steven R. Rubenstein and Evelyn F. Nissirios, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-989-13. Law Offices of Jef Henninger, attorneys for appellant (Jef Henninger, of counsel and on the brief; Ciro A. Spina, on the brief). Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A., attorneys for respondent (Steven R. Rubenstein and Evelyn F. Nissirios, on the brief). PER CURIAM
Plaintiff R.J. (Russell) and defendant R.J. (Rose) were married in 1979. They had two sons who are now twenty-four and twenty-one years old. The parties separated approximately four years ago. On May 29, 2013, the Family Part issued a final restraining order (FRO) against Rose under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The court found Rose committed the domestic violence act of harassment, N.J.S.A. 2C:25-19(a)(13), as defined in N.J.S.A. 2C:33-4, by engaging in conduct intended to "alarm or seriously annoy" Russell.
Pursuant to Rule 1:38-3(c)(12), all names used here are fictitious to protect the confidentiality of the victims of domestic violence.
In this appeal, Rose argues the court erred in granting the FRO because she did not engage in conduct intended to "harass" her husband, and Russell did not demonstrate that permanent restraints are necessary to protect him from further domestic abuse by Rose. After reviewing the record developed before the trial court and mindful of our standard of review, we reject Rose's arguments and affirm.
I
Both parties were represented by counsel when this matter was heard and decided by the Family Part. The incident that gave rise to this appeal occurred on Sunday, April 28, 2013. According to the findings made by the Municipal Court Judge who issued the Domestic Violence Temporary Restraining Order (TRO):
[On] 4-28-2013 at 8 p.m. [Rose] charged toward her estranged husband as he walked in his parking lot toward his car. [Russell] observed a woman and then heard her as she
screamed at him. He began to walk toward his car faster. She caught up to him and began to beat on his head and arm. As he started the car she continued to beat on his head. Mr. and Mrs. [J's] son arrived and [Rose] then stepped away. [Russell] states that [Rose] is continually in the parking lot and driving through. He finds this alarming. While speaking with [Russell] a neighbor approached and stated she observed tonight['s] incident. She added that she has also observed her sitting in the parking lot in the past.The two Domestic Violence Acts identified by a check mark of the TRO were assault, N.J.S.A. 2C:25-19(a)(2), as defined under N.J.S.A. 2C:12-1, and stalking, N.J.S.A. 2C:25-19(a)(14), as defined in N.J.S.A. 2C:12-10.
Russell's testimony at the FRO hearing before the Family Part was consistent with the findings made by the Municipal Court Judge who issued the TRO. The only material comment worth noting is Russell's characterization of Rose's physical assault: "As I was getting into the car, she arrived at the same time and she began to pummel me about the - - about the head and the neck." (Emphasis added). When asked by his attorney to elaborate on what he meant by "pummel," Russell indicated Rose hit him with her fists "continuously." Russell testified that he called his local police department for help immediately. However, Russell testified Rose stopped assaulting him when she saw one of their sons. She was not present when the police arrived at the scene.
Russell indicated he received "a series of text messages [from Rose] which began at 8:05 in th[e] morning and continued until, possibly, 9:22 at night[.]" In response to his attorney's question, Russell identified for the record the "numerous text messages" that he received from Rose "around the time of the incident." Russell also alleged that Rose telephoned him on Monday night, April 29, 2013, the day after the court had issued the TRO, and that he continued to receive "text messages up until the day of the hearing, on May 1st [2013]."
As described by Russell's counsel to the trial judge, "exhibit A" contained "numerous text messages" Russell received from Rose "around the time of the incident and shortly thereafter." The trial judge admitted these documents into evidence at the conclusion of Russell's testimony, finding that "they appeared to be competently authenticated." The record also reflects defense counsel's tacit consent to the trial judge's ruling. Furthermore, although Russell's counsel offered to read the content of messages into the record, the trial judge expressly indicated it was "not necessary" because they were being admitted into evidence. Unfortunately, the documents collectively admitted into evidence as "exhibit A" were not included as part of the appellate record. Rule 2:6-1(a) requires appellant's appendix to "contain . . . such other parts of the record . . . as are essential to the proper consideration of the issues." See also Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001). The record of an appeal based on the trial court's alleged error in failing to identify evidence of appellant's intent to harass, should have included all of the evidence considered by the court concerning appellant's state of mind vis-á-vis respondent on the date of the alleged incident.
Russell also testified at length about prior incidents of domestic violence that occurred three years earlier. According to Russell, on June 22 and 28, 2010, Rose went to his apartment complex and yelled and cursed at him from the parking lot. She appeared again at his apartment complex on June 30, 2010, blocked his exit from the parking lot, followed him to their son's basketball game, and yelled at him in the parking lot. In July 2010, Rose again yelled and cursed at him at their son's hockey game. She followed him from the game into the parking lot and accosted and pushed him. Although he was not physically in fear of Rose, Russell testified that these verbal assaults and public incidents were personally humiliating and made him extremely uncomfortable.
The incidents during the summer of 2010 resulted in both parties seeking and obtaining reciprocal domestic violence restraining orders, enjoining each party from any interactions or engaging in harassing conduct against the other. Ultimately they agreed to dismiss the domestic violence restraints and enter into a Civil Consent Order. As read into the record by Russell's counsel as part of his cross-examination of Rose, this Civil Consent Order dated August 3, 2010 provided:
Both parties are restrained and enjoined from contacting each other, telephonically, via computing or text messaging, for [sic] from making or causing harassing communications to be made, to him/her, and from harming, stalking, following or threatening to harm, stalk or follow the other . . . . The parties agree to refrain from going to the other place of residence unless this is for the purpose of dropping off a child, which shall take place at curbside.
This Consent Order was entered under the docket "FM" number in the matrimonial case dissolving the parties' marriage.
--------
In response to a question posed by Russell's counsel, Rose acknowledged remembering "the terms of this order." After further questioning by the trial judge to ensure she was aware of the existence of this order, Rose again acknowledged to Russell's counsel that she recalled agreeing to "not text message or email or telephone [Russell]."
Against this evidential record, the trial judge found Russell's testimony concerning the incident that led to the issuance of the TRO credible. The judge found Rose had intentionally violated the restraints she voluntarily agreed to abide by in the Civil Consent Order. The judge also found Russell had established a sufficient basis for the issuance of domestic violence restraints based on stalking and the public policy considerations in the Prevention of Domestic Violence Act as expressed in our opinion in Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006).
II
Rose's principal argument on appeal centers on the trial court's failure to make specific factual findings supporting her commission of one of the two predicate acts indicated or "checked-off" in the TRO -- namely stalking or assault. Relying on the restraints Rose herself acknowledged were part of the Civil Consent Agreement, the trial judge noted:
[T]he parties agree[d] to refrain from going to the other place of residence, unless it is for a certain specific purpose, not relevant here. The agreement is signed by the parties and I don't know if [Rose] was mindful of that agreement when she went over to the residence of [Russell], on this date, but it is a clear violation of that agreement. And as such, I think [it] is, probative of both the fact that there was . . . an act of - - I think stalking may be exaggerating it, but . . . certainly a harassing contact and communication, even putting aside the question of an assault.
As defined under the Criminal Code of New Jersey, the petty disorderly person offense of "harassment" requires conduct undertaken with the purpose "to alarm or seriously annoy" the victim. J.D. v. M.D.F., 207 N.J. 458, 478 (2011). N.J.S.A. 2C:33-4 describes conduct that may constitute harassment, if committed with the purpose to harass:
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.]
A trial judge's "finding of a purpose to harass may be inferred from the evidence presented and from common sense and experience." H.E.S. v. J.C.S, 175 N.J. 309, 327 (2003) (citing State v. Hoffman, 149 N.J. 564, 577 (1997)). The Prevention of Domestic Violence Act is intended by the Legislature "to assure the victims of domestic violence the maximum protection from abuse the law can provide," N.J.S.A. 2C:25-18. Our Supreme Court has also recognized that Family Part judges have "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). In this context, we discern no legal basis to disturb the trial court's findings here. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
The facts support the trial judge's conclusion that Rose's purpose was to harass Russell when she encountered him on April 28, 2013, in violation of the Consent Order. The evidence is also overwhelming that Russell is in need of protection from Rose's violent and unpredictable behavior. Silver, supra, 387 N.J. Super. at 126-27.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION