Decided: October 12, 1993.
PAMELA MURRAY, PLAINTIFF-RESPONDENT,
GEORGE H. MURRAY, DEFENDANT-APPELLANT
On appeal from Superior Court, Chancery Division, Family Part, Monmouth County.
Shebell, Long and Landau. The opinion of the court was delivered by Landau, J.A.D.
[267 NJSuper Page 407]
This is an appeal by defendant George H. Murray from an order entered by the Family Part under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33, on July 21, 1992 following a brief hearing on a harassment complaint filed by plaintiff Pamela A. Murray on July 13, 1992. A temporary restraining order barring defendant from the matrimonial home and granting its possession to plaintiff was issued when the complaint was filed. We reverse.
Defendant's complaint for divorce from the plaintiff was filed on July 16, 1992. That a divorce was imminently contemplated by defendant and known to plaintiff is shown by the only "harassment"
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particulars cited in the Domestic Violence Complaint which were:
Endangering plaintiff's life, health, or well-being by: Threatening to take over the assets of the house in a divorce settlement. Victim stated that she knows her husband has been cheating on her and refuses to talk to her.
There was no prior history of domestic violence, according to the complaint.
Following a hearing on the complaint, the sole reason given by the trial Judge to sustain the finding of harassment was "that over a period of a year on several occasions, more than -- certainly more than one and I find more than three or four, that it's repeatedly been brought up to the plaintiff that she is not sexually attractive to him, he doesn't love her . . . . And I find that they are the types of statements that have been meant to belittle her and to demean her and inflict emotional abuse upon her." There followed findings respecting support, mortgage payments, automobile, and the like. Defendant was ordered out of the house, and directed to make various payments. Plaintiff was given possession of a Volvo automobile as well as the matrimonial residence.
Defendant does not dispute telling his wife that he didn't love her or have sexual feelings for her. He says they attended marital counselling without success, and that he was merely responding honestly to his wife's inquiries. The only evidence of record which touched on plaintiff's fear of violence (there were no acts of physical violence) was plaintiff's testimony that she heard defendant say he might hit her if plaintiff tried to stop him from moving out or leaving her.*fn1
There was no evidence of record to sustain a finding that the purpose of defendant's remarks was to repeatedly alarm or annoy the plaintiff, although it may have had that effect. Indeed, the domestic violence complaint and plaintiff's own testimony appear
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to support defendant's contention that he was planning to leave and divorce plaintiff and had made this known.
The Legislative findings which undergird the Prevention of Domestic Violence Act are set forth in N.J.S.A. 2C:25-18.*fn2 In Grant v. Wright, 222 N.J. Super. 191, 536 A.2d 319 (App.Div.1988), certif. denied, 111 N.J. 562, 546 A.2d 493 (1988), we reversed a finding of harassment under the Act because neither the court's findings nor the evidence were sufficient to make out the elements
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of N.J.S.A. 2C:33-4 (harassment).*fn3 Here, too, we so conclude. No basis for the finding of the element of "purpose to alarm or seriously annoy," is present. (emphasis supplied). See, E.K. v. G.K., 241 N.J. Super. 567, 570-71, 575 A.2d 883 (App.Div.1990).
We are concerned, too, with the serious policy implications of permitting allegations of this nature to be branded as domestic violence and used by either spouse to secure rulings on critical issues such as support, exclusion from marital residence and property Disposition, particularly when aware that a matrimonial action is pending or about to begin.
As we read the findings, and the record, this defendant was tarred with the brush of domestic violence because he told his wife on a number of occasions that he planned to divorce and leave her, and that he no longer loved or felt attracted by her. One spouse has thus entered the pending matrimonial litigation with two strikes already called; spousal abuse and adverse Disposition of support and property issues. The N.J.S.A. 2C:33-4c words "alarm or seriously annoy" must here be considered in light of the legislative purposes for the Prevention of Domestic Violence Act quoted in footnote 1. (See, E.K. v. G.K., supra, 241 N.J. Super. at 571, 575 A.2d 883). The result reached by the Family Part Judge is not consistent with this purpose.
We think it clear that pre-divorce statements respecting absence of affection or physical desire alone were not intended to be sufficient to fulfill the elements of purposeful alarm or serious
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annoyance necessary to constitute harassment under either statute.
The order under review is reversed, and the Domestic Violence Complaint dismissed. We recommend that, if not heretofore addressed, the property and support issues treated in the Domestic Violence order be promptly considered in the pending divorce suit upon application to the Family Part.