Opinion
DOCKET NO. A-3152-14T3
05-13-2016
R.L., Plaintiff-Respondent, v. C.D.H., Defendant-Appellant.
C.D.H., appellant pro se. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FV-21-0291-15. C.D.H., appellant pro se. Respondent has not filed a brief. PER CURIAM
Defendant C.D.H. appeals from the grant of a final restraining order (FRO) precluding him from having contact with plaintiff R.L., her boyfriend R.T., and her oldest daughter, K.L. Because defendant threatened to kill plaintiff and her boyfriend, we affirm.
We use initials to protect the privacy of the victims.
I.
Defendant and plaintiff were formerly in a relationship, and they had a daughter A.H. Initially, A.H. lived with plaintiff. However, the Division of Child Protection and Permanency (Division) later placed A.H. in defendant's care, because plaintiff's boyfriend R.T. was a Tier II Megan's Law sex offender.
At the FRO hearing, plaintiff testified as follows. Defendant had a history of domestic violence beginning in 2002, when defendant threw her on the ground, jumped on her stomach, and broke her pelvis, requiring her to have surgery. In 2012, defendant choked plaintiff until she was unconscious.
After the parties' relationship ended, defendant began dating another woman, S.J. On December 9, 2014, plaintiff received a phone call from S.J. During the phone call, S.J. threatened plaintiff and R.T., claiming that S.J.'s father was in a drug cartel and that S.J. would have plaintiff and R.T. killed. R.T. then got on the phone and told S.J. to leave them alone.
Approximately ten minutes after S.J. called plaintiff, defendant called plaintiff and said, "you and your boyfriend are dead, you whore." Defendant then texted plaintiff and said, "I no longer have our daughter, bitch. Good luck finding her. Okay."
At the FRO hearing, R.T. corroborated all of plaintiff's testimony. R.T. testified he overheard defendant's threats and read the text message defendant sent.
Defendant testified as follows. Defendant denied that S.J. had initiated a phone call with plaintiff; however, he admitted that he was not with S.J. at the time the alleged phone call took place. Instead, defendant received a phone call from S.J. stating that R.T. had threatened to come in their home, drag S.J. out, and leave her dead on the side of the road. Defendant then called plaintiff because she and R.T. had been harassing and threatening his family, and because R.T. was a Tier II sex offender. Defendant admitted he "lost it for a moment" and said "you and your old man are dead, whore."
Defendant denied plaintiff's allegations of prior domestic violence, with the exception of one instance of inappropriately touching plaintiff ten years prior, for which he was on probation for eighteen months.
The trial court found that there "were inconsistencies in [defendant's] testimony" and that it was speculative. The court found the testimony of plaintiff and R.T. to be more credible and consistent. Based on defendant's admitted threat that "you and your old man are dead, whore," the court found plaintiff "made out by a preponderance of the evidence a domestic violence cause of action based on the underlying offense of harassment" under N.J.S.A. 2C:33-4. Citing the prior history of domestic violence to which plaintiff testified, the court granted plaintiff's request for an FRO.
Defendant appeals the entry of the FRO, arguing:
PLAINTIFF PERPETRATED A FRAUD ON THE COURT BY FABRICATING A FALSE HISTORY OF VIOLENCE. PLAINTIFF DEVISED AN UNCONSCIONABLE SCHEME CALCULATED TO INTERFERE WITH THE COURT'S ABILITY TO IMPARTIALLY ADJUDICATE THE RESTRAINING ORDER BEFORE IT. A RESTRAINING ORDER PLAINTIFF CAN USE TO HARASS AND ECONOMICALLY HARM DEFENDANT.
II.
"The scope of appellate review of a trial court's fact-finding function is limited." 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." Id. at 411-12. We may reverse only if there is "'a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'" Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)) (alteration in original). We must hew to our standard of review.
III.
The trial court found the predicate act of harassment under N.J.S.A. 2C:33-4. "[H]arassment is the predicate offense that presents the greatest challenges to our courts as they strive to apply the underlying criminal statute that defines the offense to the realm of domestic discord." J.D. v. M.D.F., 207 N.J. 458, 475 (2011).
"Each of [the] three subsections [of N.J.S.A. 2C:33-4] is 'free-standing, because each defines an offense in its own right.'" State v. Hoffman, 149 N.J. 564, 576 (1997) (citation omitted). Subsection (a) provides that a person commits harassment 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." N.J.S.A. 2C:33-4(a). Under N.J.S.A. 2C:33-4(a), to annoy means "to disturb, irritate, or bother." Hoffman, supra, 149 N.J. at 580.
Subsection (a) is "'aimed, not at the content of the offending statements but rather at the manner in which they were communicated.'" Hoffman, supra, 149 N.J. at 583 (citation omitted). By proscribing communications that are "sent anonymously, or at an extremely inconvenient hour, or in offensively coarse language," subsection (a) precluded "three types of communication [that] properly can be classified as being invasive of the recipient's privacy." Ibid. Likewise, N.J.S.A. 2C:33-4(a)'s phrase "any other manner likely to cause annoyance or alarm" encompasses only those modes of communicative harassment that "also are invasive of the recipient's privacy." Hoffman, supra, 149 N.J. at 583. "Speech that does not invade one's privacy by its anonymity, offensive coarseness, or extreme inconvenience does not lose constitutional protection even when it is annoying." Id. at 583-84.
Subsection (b) provides that a person commits harassment if, with the intent to harass another, he "subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so." N.J.S.A. 2C:33-4(b) (emphasis added). Subsection (b) "deals with touchings or threats to touch, and it does not require the intended victim to be annoyed or alarmed." Hoffman, supra, 149 N.J. at 580.
In finding harassment, the trial court quoted N.J.S.A. 2C:33-4(a). The court found defendant's statement, "'you and your old man are dead, you whore,' certainly was intended to cause alarm, to intimidate and, frankly, terrify." However, the more clearly appropriate subsection was subsection (b). Defendant's conduct plainly was intended to communicate a threat of offensive touching. We thus find defendant's conduct constituted harassment under N.J.S.A. 2C:33-4(b). See J.D., supra, 207 N.J. at 485-86.
Defendant argues his threat was intended to deter plaintiff and R.T. from carrying out R.T.'s threat against S.J. However, defendant's threat must be considered in light of "the parties' past history" of domestic violence. H.E.S. v. J.C.S. 175 N.J. 309, 327 (2003). Considered in light of the testimony that defendant had previously broken plaintiff's pelvis and choked her until she passed out, the evidence supported a finding that defendant's threat to kill plaintiff and R.T. constituted harassment under N.J.S.A. 2C:33-4(b). Accordingly, we affirm the trial court's finding that defendant committed a predicate act of domestic violence by violating N.J.S.A. 2C:33-4.
Defendant now claims that he said, "If your old man harms my girlfriend or touches my daughter, you and your old man are dead, whore." However, he did not so testify at the hearing. Thus, we need not address whether such a conditional threat would constitute harassment. --------
IV.
"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." J.D., supra, 207 N.J. at 475 (quoting Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006)). "'[T]he guiding standard is 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.'" Id. at 475-76 (citation omitted). Two of the criteria set forth in N.J.S.A. 2C:25-29(a) are "[t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse," and "[t]he existence of immediate danger to person or property." N.J.S.A. 2C:25-29(a)(1), (2).
The trial court credited that defendant had committed physical violence against plaintiff in the past, and that plaintiff feared that defendant would injure or kill her. The court found that there was a need for an FRO "to stop this threatening, vicious, and violent communication pattern" between defendant and plaintiff. We agree there was a sufficient basis to enter an FRO.
V.
Defendant argues plaintiff sought a restraining order against defendant in order to seek retribution for defendant obtaining custody over A.H. Trial courts must be "careful lest a plaintiff be permitted to seize upon what is truly an innocent act in an effort to gain an advantage in litigation between parties." J.D., supra, 207 N.J. at 488. Here, we cannot say that defendant's threat towards plaintiff and R.T., considered in light of his past history of domestic violence, was a truly innocent act, and we defer to the trial court on whether plaintiff was attempting to use the restraining order to seek retribution against defendant.
Defendant argues that plaintiff and R.T. testified inconsistently and falsely before the trial court. Defendant also argues that plaintiff failed to provide documentary proof of the prior domestic violence or of the medical treatment she sought as a result. However, the trial court credited the testimony of plaintiff and R.T, and we defer to those credibility determinations, which were based largely on the trial court's observation of the testimony. See Cesare, supra, 154 N.J. at 412. "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, [and] hears them testify," it has a better perspective than a reviewing court in evaluating the veracity of witnesses.'" Id. at 412 (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "We accord particular deference to the judge's factfinding because of 'the family courts' special jurisdiction and expertise in family matters.'" Clark v. Clark, 429 N.J. Super. 61, 70 (App. Div. 2012) (quoting Cesare, supra, 154 N.J. at 413).
Defendant claims that he has documentary evidence refuting plaintiff's testimony about his prior domestic violence, but he presented no such evidence. Defendant claims that A.H. is ready and willing to testify to refute plaintiff's testimony; however, defendant did not call A.H. at the FRO hearing. He claims that "the entire history" would show that plaintiff had previously assaulted him, but he presented no such testimony. Defendant cannot fault the judge for not considering, or failing to appreciate, evidence that was not presented at the hearing. See Fusco v. Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002).
Defendant argues that the trial court refused his request to postpone the FRO hearing so that he could obtain necessary documentary evidence. However, the record does not show such a request or a refusal. Indeed, the trial court had already postponed the hearing for two weeks at defendant's request. Thus, defendant's argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION