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.
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"
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
to support defendant's contention that he was planning to leave and divorce plaintiff ...