Opinion
DOCKET NO. A-2521-12T4
03-18-2014
S.M.K., Plaintiff-Respondent, v. H.T., JR., Defendant-Appellant.
Weiseman DiGioia, P.A., attorneys for appellant (Michael T. Simon, of counsel and on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Guadagno.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-512-13.
Weiseman DiGioia, P.A., attorneys for appellant (Michael T. Simon, of counsel and on the brief).
Respondent has not filed a brief. PER CURIAM
Defendant H.T., Jr. appeals from the January 3, 2013 final restraining order (FRO) entered by the Family Part pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. For the reasons that follow, we reverse.
The parties met while working in a restaurant and dated for approximately two months. On Saturday, December 22, 2012, plaintiff abruptly ended the relationship. Plaintiff spoke with defendant on the phone and told him she did not want to continue the relationship. The news came as a complete surprise to defendant. Two days earlier, plaintiff told defendant during a phone conversation that she was feeling "down." Defendant then made a "surprise visit" to plaintiff's apartment with flowers and chocolate cake. Later that day, plaintiff texted defendant, "Seriously, babe, that was one of the sweetest things anyone has ever done for me. I just want to keep hugging you[.]"
Defendant asked if he could speak with plaintiff in person and she invited him to her apartment. They spoke from about midnight until 9:00 a.m. on December 23, when she asked him to leave.
Plaintiff then traveled to Pennsylvania to spend Christmas with her parents. Later that day, defendant began to text plaintiff with messages plaintiff described as "just trying to say anything to get me to contact him again; apologizing, apologizing." Plaintiff replied to some of defendant's texts, at one point wishing him, "Merry Christmas." Plaintiff's last text to defendant that day was sent at 8:22 p.m. After defendant texted plaintiff, "I don't want you to worry. I have to do this on my own. Thanks for asking." Plaintiff replied, "I will pray for you." Defendant continued to text plaintiff until his last message at 11:20 p.m. Plaintiff did not respond to any of these texts.
On December 24, 2012, defendant texted plaintiff at 10:24 a.m. asking to speak with her on the phone. When there was no response from plaintiff, defendant texted again at 10:37 a.m., "I guess that's a no." He continued with a very long text. At 11:31 p.m., defendant texted,
I honestly don't know what I did not to get a response. Everything I said was true. . . . I don't want to send you a thousand texts because I'm not crazy, but I do care about you. Sorry to wake you up. It's almost midnight. Merry Christmas. Good night. If you want to talk, I'm here for you. Anytime you want, just call me.
On December 25, 2012, at 4:37 a.m., defendant texted plaintiff:
The person I met wouldn't have just ignored me . . . . This isn't it. . . . I promise I will not text or call you. Please don't ignore like you did to your ex. I really hope I was not on that same level.
Later on Christmas day, defendant posted on his Facebook page that he was coming to Pennsylvania to try to find plaintiff. He explained on the post that he was "following his heart" to try to contact plaintiff. When plaintiff read the post, she told her family and they locked the gate at the entrance to their driveway.
At 7:27 p.m. defendant texted to plaintiff:
Okay. This will sound unreal, but I decided to follow my heart. It led me to PA in search of you. Of course, I'm lost. I have no clue where your parents live, but I feel like I'm close. Can you help?Plaintiff did not respond to this text. At 7:40 p.m., defendant again texted plaintiff:
I think I found your house. I came this far, but I'm too scared to knock on the door. Can you please talk for a second?Again, plaintiff did not respond to defendant's text. At 7:50 p.m., defendant sent another text:
You could have at least answered. I made it all the way here just to see you. PS I left the flowers in the mailbox. Obviously, I won't attempt to go to the door with a gate there. I guess people were right. This wasn't a sweet thing to do. It turned out to probably scare you. All I wanted to do was say Merry Christmas and prove to you that I cared.When plaintiff realized that defendant was actually at the gate to her parent's home, she texted him at 8:02 p.m. that she would call the police if he did not leave. Plaintiff's father and brother-in-law, who were watching defendant, confirmed that he left. Before leaving, defendant placed flowers in plaintiff's parents' mailbox. Later that night, defendant sent plaintiff three more texts apologizing for upsetting her and her family and promising not to bother her anymore.
Plaintiff returned to New Jersey and went to work on December 27, 2012. When she returned to her apartment that evening, she found a letter taped to her door. Plaintiff's father was staying with her, and they both read the letter. Plaintiff conceded that the letter was not threatening, although it contained what she termed "bizarre ramblings." In the letter defendant stated, "I want you to be happy and I'm willing to keep my feelings inside. I'll never contact you again, never call, never text, because I want you to be happy." After discussing the letter with her father, plaintiff decided that she would contact the police in the morning.
On December 28, 2012, plaintiff obtained a TRO, based on the predicate crimes of harassment and stalking. In the complaint filed in support of the TRO, plaintiff alleged:
Defendant and victim were in a dating relationship. Victim ended relationship and defendant continued to contact victim via phone in order to continue the relationship. Victim advised defendant to cease contact, however, defendant did not comply. Victim stated defendant showed up at her parents' residence in PA, approximately two hours from her residence in NJ. Victim states defendant also left a four page note on her door, again asking to continue the relationship once victim returned home from PA, with her father.
On January 3, 2013, the Family Part held a hearing on plaintiff's request for an FRO. Both parties testified and portions of the texts and the December 27 letter were read into the record. At the conclusion of the hearing, the judge held that the elements of stalking were not established, but found that "defendant has engaged in a course of harassment." Conceding that there was no offensively coarse language and only one text at an inconvenient hour, the court found that defendant's actions were done in a manner to likely cause annoyance or alarm.
Although the transcript indicates that the texts and letter were introduced in evidence, they were not included in the record on appeal and our reference to them is limited to the information contained in the transcript.
On appeal, defendant claims that the trial court failed to give adequate consideration to the fact that there was no history of domestic violence between the parties and the trial court's finding that a final restraining order was necessary was impermissibly based on plaintiff's subjective viewpoint and was inconsistent with the simultaneous finding that stalking did not exist.
We will not disturb a trial court's fact-findings if supported by "adequate, substantial, credible evidence[,]" and we accord deference to the family court based on its special jurisdiction and expertise. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We will reverse a trial court's findings that "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Our review is broader when we consider "the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." Ibid. We owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A person commits harassment if, with purpose to harass another, he:
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.]
An essential element of each of these three forms of harassment is proof of a purpose to harass. See State v. Hoffman, 149 N.J. 564, 576-77 (1997). A plaintiff's assertion that he or she felt harassed is not sufficient to prove purpose to harass. J.D. v. M.D.F., 207 N.J. 458, 487 (2011) ("The victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose.").
This was a brief dating relationship, which plaintiff ended suddenly and without warning. Defendant tried to rekindle the relationship during a five-day period by sending numerous text messages, some of which were responded to by plaintiff. Defendant also attempted to visit plaintiff at her parents' house and left a letter on her apartment door. While defendant's persistence may have crossed the line separating tolerable rapprochement from unwelcome infatuation, it is difficult to classify his actions as domestic violence, when it is clear his purpose was not to harass plaintiff but to reunite with her.
The same amorous gesture of a gift of flowers that was described by plaintiff as part of a pattern of harassment when placed in her parents' mailbox on December 25 was accepted by her five days earlier and described by her in a text message to defendant as "one of the sweetest things anyone has ever done for [her]." Surely, defendant had at least a reasonable belief that another gift of flowers might have the same effect or prompt a similar reaction.
"[T]he law must have some tolerance for a disappointed suitor trying to repair a romantic relationship when his conduct is not violent or abusive or threatening but merely importuning." Sweeney v. Honachefsky, 313 N.J. Super. 443, 448 (App. Div. 1998). In Sweeney, the parties dated for approximately six-weeks before the plaintiff terminated the relationship. For a period of seven days following the breakup, the defendant left notes in the plaintiff's car, spoke with her on the telephone, and went to her home to talk to her. Id. at 444-45. We reversed the trial court's denial of the defendant's motion to dissolve the restraining order based on harassment, concluding that "the conduct . . . in terms of domestic violence, [was] marginal at best" because "[t]here was never the slightest suggestion of physical or verbal abuse, defendant never made any threats of any kind to plaintiff . . . and he did not use offensive language." Id. at 447. We held that the harassment statute "requires a purpose to achieve that result or a course of alarming conduct." Ibid.
Similarly, defendant's conduct here was neither violent nor abusive and there was nary a hint, let alone a history, of domestic violence during the parties' brief relationship.
The Family Part relied on H.E.S. v. J.C.S., 175 N.J. 309 (2003), in finding that a purpose to harass may be inferred from the evidence presented and from common sense and experience. The judge found defendant's trip to Pennsylvania and leaving the letter on plaintiff's door as two instances where purpose to harass can be inferred. However, the judge never explained how these acts demonstrated that defendant acted with the purpose to harass plaintiff when his intent on both dates was clearly to rekindle his relationship.
It is significant that there was no history of domestic violence in the parties brief two-month relationship. We also note that until plaintiff's threat to call the police on December 25, there was no firm indication to defendant that she wanted no further contact with him. The record before us indicates plaintiff's last communication with defendant on December 23 was that she would pray for him and her response to some of his earlier post-breakup communications was somewhat equivocal. On December 24 and 25, plaintiff did not respond to any of defendant's numerous texts until her threat to call the police. While that threat can be seen as a clear message that plaintiff wanted no further contact with defendant, the letter left on plaintiff's door contained only a message that defendant would never contact her again.
Although a purpose to harass can be inferred from a history between the parties, see Hoffman, supra, 149 N.J. at 577, that finding must be supported by some evidence that the actor's conscious object was to alarm or annoy. J.D. v. M.D.F., supra, 207 N.J. at 487. While plaintiff may have been alarmed by defendant's trip to her parents' house and by the letter he left on her door, there is simply no proof that defendant's intent in either instance was to alarm or annoy her. The fact that his actions may have caused alarm, absent proof of intent, is insufficient. See ibid.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION