Opinion
DOCKET NO. A-3688-14T1
03-14-2017
T.K., Plaintiff-Respondent, v. W.K., Defendant-Appellant.
Andrew N. Yurick, attorney for appellant (Nicholas J. Yurick, on the brief). T.K., respondent pro se.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fuentes and Simonelli. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-1125-15. Andrew N. Yurick, attorney for appellant (Nicholas J. Yurick, on the brief). T.K., respondent pro se. PER CURIAM
Defendant W.K. appeals from the March 30, 2015 final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A. 2C:33-4(b). We affirm.
The court entered a separate FRO against plaintiff T.K., but she does not appeal.
We derive the following facts from the record. Plaintiff and defendant were married in 2001, and divorced in May 2014. They have one child, E.K., who was eleven years old at the time of the divorce. Pursuant to the parties' property settlement agreement, they had joint legal custody of E.K., and the child resided with plaintiff. Defendant was awarded the marital home in Moorestown, but plaintiff and E.K. resided there until August 1, 2014, while defendant resided in a different place.
Plaintiff and E.K. eventually vacated the former marital home, leaving behind some of her and E.K.'s personal items, including items that belonged to plaintiff's deceased mother. Defendant was moving back into the home on February 8, 2015. Plaintiff testified that on February 5, 2015, defendant was at her home visiting E.K. when they discussed her and E.K. going to defendant's home to retrieve their personal items, and defendant responded, "okay."
E.K. testified that she was present where her parents discussed her and her mother going to defendant's home on February 8, 2015, to retrieve their personal items, and defendant responded, "yeah, sure, I don't see why not." She and her mother gave defendant two baskets to "put some stuff in." Defendant admitted he was at plaintiff's home, but did not recall what was discussed.
The parties exchanged several text messages thereafter. Plaintiff confirmed in a text message sent on the evening of February 7, 2015, that she and E.K. would be at defendant's home the next day at "one-ish." Defendant responded that his girlfriend was going to be there "so I hope there are no issues. You do what you want to do." Plaintiff reiterated that she and E.K. would be coming to defendant's home the next day, and stated that defendant's girlfriend need not be there and there was a court order restricting the girlfriend from being in Moorestown. Plaintiff then blocked defendant's cell phone number on her cell phone. As a result, she did not receive defendant's next text messages stating that the "police will be here[,]" his girlfriend "will be there all day[,]" and "[d]o not come on my property."
Plaintiff and E.K. went to defendant's home on February 8, 2015. Plaintiff testified that she knocked on the door and entered the home. She was walking through the hallway when defendant came at her with his arms out, yelled for her to get out of the house, chest bumped her down to the end of the hallway and around to the front foyer, then opened the front door and pushed her out. She and E.K. immediately left the premises. The entire incident lasted approximately four seconds.
Defendant testified that when plaintiff entered his home, he asked her to leave, and she left with E.K. Defendant denied that he physically touched plaintiff and testified that he merely formed an "L" with his arm and escorted her out the front door. He claimed that at that point, plaintiff "proceeded to raise her fist and say, I should punch you in the F-ing face right now."
E.K. testified that she saw defendant push plaintiff down the hallway and out of the house. She and her mother then left the property. E.K. also testified that she did not see plaintiff raise her fist or threaten to strike defendant.
The trial judge found E.K.'s testimony highly credible, and found defendant's testimony not credible. The judge determined that defendant chest bumped plaintiff, pushed her, and physically forced her out of his home. The judge concluded that defendant committed the predicate act of harassment under N.J.S.A. 2C:33-4(b) by subjecting her to shoving or offensive touching with purpose to harass. The judge noted that defendant had other options to remove plaintiff from the premises rather than the offensive touching, such as calling the police.
The judge also determined that the parties made or attempted to make plans via text messages to exchange items at the former marital home, and plaintiff initially had license to be on the property, but defendant revoked that license. The judge made no finding that plaintiff knew or was aware of the high probability that she was not licensed or privileged to enter the defendant's home. Rather, the judge found it was unreasonable for her to have blocked defendant's cell phone number, and concluded that plaintiff had no permission to enter defendant's home. The judge entered a FRO against plaintiff based on criminal trespass in violation of N.J.S.A. 2C:18-3(a).
N.J.S.A. 2C:18-3(a) provides, in pertinent part, that "[a] person commits an offense if, knowing that he is not licensed or privileged to do so, he enters . . . in any . . . structure[.]" (Emphasis added). "'Knowing' under this statute means that defendant was aware that he/she was not licensed or privileged to (enter) in [the structure] or that defendant was aware of the high probability that he/she was not so licensed or privileged." See Model Jury Charge (Criminal), "Criminal Trespass" (N.J.S.A. 2C:18 3(a) (2001).
Lastly, the judge found that the issuance of dual FROs was necessary to protect both parties from future acts of domestic violence. The judge pointed to the parties' unrebutted rancorous history, which included incidents of domestic violence where defendant physically injured plaintiff, and defendant's venomous and vulgar text messages.
These text messages were admitted into evidence as Exhibits D-2 and D-3. --------
On appeal, defendant argues that he did not commit the predicate act of harassment because the defense of property statute, N.J.S.A. 2C:3-6(a), permitted him to use force to protect his home from plaintiff's criminal trespass, and he had no purpose to harass. Defendant also argues there was no credible evidence supporting the judge's finding of harassment.
Our 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 a trial court are binding on appeal when supported by adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428 (2015). "We defer to the credibility determinations made by the trial court because the trial judge 'hears the case, sees and observes the witnesses, and hears them testify,' affording it 'a better perspective than a reviewing court in evaluating the veracity of a witness.'" Ibid. (quoting Cesare, supra, 154 N.J. at 412).
"If the trial court's conclusions are supported by the evidence, we are inclined to accept them." Ibid. "We do not 'disturb the factual findings and legal conclusions of the trial judge unless . . . 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.'" Ibid. (quoting Cesare, supra, 154 N.J. at 412). "'Only when the trial court's conclusions are so clearly mistaken or wide of the mark' should we interfere to 'ensure that there is not a denial of justice.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Where our review addresses questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Under the PDVA, domestic violence occurs when an adult or emancipated minor commits one of the enumerated predicate acts upon a person covered by the PDVA. N.J.S.A. 2C:25-19(a). Harassment, as defined by N.J.S.A. 2C:33-4, is one of the predicate acts that constitutes domestic violence. Ibid. Significantly, the commission of a predicate act does not automatically "warrant the issuance of a domestic violence order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Rather, consideration of a domestic violence complaint is a two-fold task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Ibid. Second, upon a finding that the defendant committed a predicate act of domestic violence, the court must determine whether it should "enter a restraining order that provides protection for the victim." Id. at 126.
Here, the court issued a FRO against defendant based on the predicate act of harassment, N.J.S.A. 2C:33-4(b). Under this provision, a person commits the predicate act of harassment where, "with purpose to harass another," he or she "[s]ubjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so[.]" "A 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 (2001) (quoting State v. Hoffman, 149 N.J. 564, 577 (1997)).
We reject defendant's reliance on the use of justifiable force to protect his home to negate his act of harassment. N.J.S.A. 2C:3-6(a) states:
Subject to the provisions of this section and of [N.J.S.A.] 2C:3-9, the use of force upon or toward the person of another is justifiable when the actor is in possession or control of premises or is licensed or privileged to be thereon and he reasonably believes such force necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by such other person in or upon such premises.However, the use of justifiable force is limited as follows:
(1) Request to desist. The use of force is justifiable under this section only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor reasonably believes that:
(a) Such request would be useless;
(b) It would be dangerous to himself or another person to make the request; or
(c) Substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.
[N.J.S.A. 2C:3-6(b).]
Defendant's proofs failed to satisfy these prerequisites, which would justify his use of force. Plaintiff never received defendant's text message telling her not to come on his property. When she arrived there, he asked her to leave and she immediately left. There was no evidence whatsoever that plaintiff posed any danger to the property that would have justified defendant's conduct. Plaintiff and her daughter were there merely to retrieve their property. Instead of resorting to self-help physical measures in front of his daughter, defendant should have called the police if he truly believed there was danger to the property. Defendant's use of force, therefore, was not justifiable.
We discern no abuse discretion or misapplication of the law by the judge in finding that defendant committed the predicate act of harassment. The judge properly evaluated the parties' course of conduct, as required by the PDVA and case law. The judge credited E.K.'s testimony and found that defendant pushed plaintiff and physically forced her out of his home. The judge could infer based on the evidence and common sense that defendant acted with purpose to harass plaintiff by subjecting her to an "offensive touching." Defendant ignores the fact that the incident on February 8, 2015 was not "an isolated aberrant act." Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The incident has to be placed in the context of his prior history of domestic violence, where he physically injured plaintiff. In light of that history, defendant's conduct on February 8 must be viewed as implicitly embodying a purpose to harass.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION