T.T. v. B.S

Full title: T.T., Plaintiff-Respondent, v. B.S, Defendant-Appellant.

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Mar 14, 2016

DOCKET NO. A-0780-14T3 (App. Div. Mar. 14, 2016)

Opinion

DOCKET NO. A-0780-14T3

03-14-2016

T.T., Plaintiff-Respondent, v. B.S, Defendant-Appellant.

Patrick J. Joyce argued the cause for appellant. Respondent has not filed a brief.

PER CURIAM

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Kennedy and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-0083-15. Patrick J. Joyce argued the cause for appellant. Respondent has not filed a brief. PER CURIAM

Defendant, B.S., appeals the issuance of a final restraining order (FRO) entered against him by the Family Part on October 2, 2015, pursuant to the New Jersey Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the PDVA). He argues there is not sufficient credible evidence in the record to support the conclusion that he undertook an act of domestic violence or that the issuance of an FRO was necessary. We disagree and affirm.

We briefly summarize the evidence presented before the experienced Family Part judge, which he explicitly found credible. B.S. and respondent, T.T., embarked upon an intimate, personal relationship in 2012 that culminated in the birth of their son in July 2013. The pending birth, however, could not undo the growing discord between the parties and they parted ways just prior to the child's delivery. Their enmity was such that neither communicated with the other for the next nine months.

In April 2014, the parties and their parents momentarily set aside the frosty curtain and met to discuss issues such as support and co-parenting. This promising effort, however, soon dissolved in the acid of recrimination and personal bile. In early July, T.T. sent text messages to B.S. in which she employed coarse language and expressed her displeasure with B.S.'s attitude toward her and the child.

B.S. did not respond immediately to these messages; rather, he chose to respond with an "extremely long" series of text messages to T.T. at 3:49 a.m. on the morning of July 14, 2014. T.T. said the messages caused her phone to "ke[ep] ringing and ringing . . . incessant[ly,]" which awoke her from a sound sleep. A portion of the text messages T.T. received from B.S. that morning included the following passage:

Every time I read your text messages, I get angry. Thursday night I borrowed my friend's piece and driving to your house and putting two . . . right through you was an option I was entertaining. It's evident that I have snapped, and now I have to get psychological help. I am making an appointment tomorrow. I'm not going to accuse you of pushing me to this point because I am going to defer judgment to an expert. One thing is for certain, though. This idea I had that things among us and [our child] was obviously a facade, mirage, tomfoolery. I remembered what you said on 4/26 and debated if I had misunderstood what starting over meant. It is evident that you bear too much resentment towards me to start over whether it's friends, lovers, co-parents.

T.T. testified she found the text to be "very threatening" and believed that B.S. had "reached a point where he wanted to inflict violence upon me." She explained that B.S. had "access" to a weapon, and that she feared he would harm her, adding that in the past B.S. had punched holes in the wall and had threatened to commit suicide.

B.S. conceded he had sent the texts to T.T. and that he had reached a point where "being rational was no longer an option." He said he had been very angry with T.T. and intended to "take it to the next level" in expressing his anger and "hurt." He also conceded that he intended to convey to T.T. that he thought about borrowing a gun and "putting a few through her" — a message he now saw as an "error of judgment."

Following the testimony of the parties, the trial judge concluded that T.T. had demonstrated by a preponderance of the evidence that B.S. did "commit an act of domestic violence against her, specifically harassment, and that [she] is in some type of immediate danger from future acts of domestic violence, and that a final restraining order should be entered." The judge found the text had been sent during extremely inconvenient hours, and the statement that B.S. had obtained a gun and considered driving to T.T.'s home and firing at her was alarming.

Further, the judge concluded that B.S.'s explanation of having sent the text message in order to "vent" was an indication that he intended to annoy or alarm T.T., explaining that "venting to someone about them specifically and their conduct must be construed as an intention to annoy or alarm that person." The judge added that the prior act of violence — specifically, B.S. having punched the walls in T.T.'s apartment — was sufficient to support a finding of domestic violence.

B.S. argues on appeal that as a matter of law his actions cannot be considered an act of domestic violence. N.J.S.A. 2C:25-19(13) specifically identifies harassment as an act of domestic violence as defined under N.J.S.A. 2C:33-4. "[C]ourts have struggled with the proofs needed to support a domestic violence restraining order based on claims of harassment. In part, the challenge comes from litigants, often representing themselves, who use the word 'harassment' as it is used in common parlance rather than in the sense" contemplated by the criminal code or the PDVA. J.D. v. M.D.F., 207 N.J. 458, 482 (2011).

N.J.S.A. 2C:33-4(a) provides that "a person commits the disorderly persons offense of 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." "Integral to a finding of harassment . . . is the establishment of the purpose to harass, which is set forth in the statute itself." Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995). Furthermore, our Supreme Court has stated:

For purposes of [N. J.S.A. 2C:33-4(a)], there need only be proof of a single . . . communication, as long as [the] 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.]

"A finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." State v. Hoffman, 149 N.J. 564, 577 (1997) (citations omitted). "A history of domestic violence may serve to give content to otherwise ambiguous behavior and support entry of a restraining order." J.D., supra, 207 N.J. at 483. In fact, the PDVA mandates that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the parties, including previous threats, harassment, physical abuse, and in consideration of whether immediate danger to the person or property is present. See Corrente, supra, 281 N.J. Super. at 250.

Here, the Family Part judge, while conceding the history of domestic violence between the parties was "marginal," nonetheless found B.S.'s prior conduct supported T.T.'s fears that B.S. was violent. The judge's findings of fact are supported by the record, and we find no basis to disturb his conclusions of law. See Tribuzio v. Roder, 356 N.J. Super. 590, 598 (App. Div. 2003) (finding that harassment was established due to the defendant's conduct where "he was angry and frustrated at plaintiff for rebuffing him, he used coarse and offensive language . . . especially considered in light of his multiple prior unwanted and upsetting contacts").

We shall briefly address B.S.'s argument that there was insufficient evidence to support the conclusion that an FRO was necessary. We have explained that in these cases "[t]he 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). We continued:

Although this second determination--whether a domestic violence restraining order should be issued--is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse.

[Id. at 127.]

In making its determination, "the court should consider and make specific findings on the previous history of domestic violence, if any, between the plaintiff and defendant, and how that impacts, if at all, on the issue of whether a restraining order should issue." Id. at 128. "Although evidence offered by a putative victim may therefore suffice to meet the definition of harassment, courts must be careful not to overlook the statutory requirement that there be a finding that 'relief is necessary to prevent further abuse.'" J.D., supra, 207 N.J. at 476 (quoting N.J.S.A. 2C:25-29(b)). "[O]mitting this added inquiry opens the door to potential abuse of the important purposes that the Act is designed to serve and threatens to 'trivialize the plight of true victims' in the process." Ibid. (quoting Corrente, supra, 281 N.J. Super. at 250).

Here, though commenting that the prior history of domestic violence between the parties was "marginal," the judge did find that a history did, in fact, exist and that such history supported his conclusion that the issuance of an FRO was necessary. We are satisfied this conclusion is supported in the record.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION