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J.N.S. v. D.E.S.

June 23, 1997


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County.

Approved for Publication June 23, 1997.

Before Judges Pressler, Humphreys and Wecker. The opinion of the court was delivered by Wecker, J.

The opinion of the court was delivered by: Wecker

The opinion of the court was delivered by

WECKER, J.S.C. (temporarily assigned).

This is an appeal from a final restraining order entered under N.J.S.A. 2C:25-17 et seq. and premised upon a finding that defendant husband committed acts of harassment in violation of N.J.S.A. 2C:33-4a. We are called upon to determine whether the trial Judge's factual findings are supported by substantial credible evidence in the record, and if so, whether those facts support the legal Conclusion that the elements of harassment have been proved sufficiently to establish domestic violence and to warrant the restraining order. We conclude that the trial Judge was understandably concerned at the lack of judgment and self-restraint shown by a parent in the presence of young children, nevertheless we conclude that the defendant's conduct did not constitute domestic violence within the meaning of the Prevention of Domestic Violence Act. We therefore reverse.

On appeal, defendant contends that the conduct described in the domestic violence complaint "does not constitute harassment under N.J.S.A. 2C:33-4" because plaintiff's disputed allegations, even if true, are trivial and because there is insufficient evidence that defendant acted with the required "intent to harass the plaintiff." Defendant cites Murray v. Murray, 267 N.J. Super. 406, 408 (App. Div. 1993), and D.C. v. T.H., 269 N.J. Super. 458 (App. Div. 1994) in support of his contentions. Defendant also contends that the trial Judge "based his decision on facts that are not supported by adequate, substantial or credible evidence . . . ." *fn1

Not surprisingly, plaintiff argues in response that "the trial court properly found that the defendant's conduct taken in the aggregate constitutes domestic violence [and] defendant had intended to harass plaintiff."

Despite the vulgarities that both parties obviously exchanged on numerous occasions and the inappropriate behavior to which they exposed their young children, defendant's behavior cannot fairly be said to have violated the criminal code or to have evidenced a risk of escalating or future violence. We conclude as we did in N.B. v. T.B., 297 N.J. Super. 35 (App. Div. 1996), that such conduct as could be found by a preponderance of the evidence did not constitute domestic violence and the restraining order entered under the Act was unjustified. "This matter fits more readily within the category of 'domestic contretemps'" than a "matter of consequence." Id. at 40-41, quoting Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995).

The undisputed facts are as follows. The parties married in January 1986 and separated in April 1995, when defendant agreed to move from the marital home. They had three young children, a son born in 1987 and two daughters born in 1991 and 1993. After the separation, the children remained in the marital home with their mother. Their father had very frequent overnight visitation with all three children. A divorce complaint was filed and pending when plaintiff filed this complaint on May 20, 1996. At that time, the children were approximately ages nine, five, and three. Custody was apparently a contested issue in the pending divorce action, along with support issues related to the defendant's substantial income as well as equitable distribution of the parties' assets valued at several million dollars.

Plaintiff's complaint alleged various conduct over a period from Friday through Monday, May 17-20, 1996. Plaintiff alleged that when defendant came to pick up their son, he harassed her by using a vulgar hand gesture; that when he brought the child back he kicked over a garbage can; and that he had "constantly harassed [her] in person and over the phone." With respect to prior history, plaintiff alleged that defendant had "threatened [her] life with his Mafia connections," threatened to take the children, and to "make [her] life miserable."

These allegations were disputed by defendant. Nevertheless, there was testimony at the final hearing from which the Judge could have concluded that defendant used a "vulgar hand gesture"; that he "kicked over a garbage can," although defendant denied both claims and offered testimony of an eyewitness that he did not kick over the garbage can; that on Yom Kippur in September 1995 he used a derogatory slang term to describe plaintiff's non-Jewish boyfriend; and that in March 1996 he called plaintiff a variety of obscene names. It was only in the context of the 1995 Yom Kippur holiday, when plaintiff did not go to dinner at defendant's brother's house, that plaintiff testified to a single telephone threat:

You're going down. You're going down. I'm going to destroy you.

While those words sound threatening on their face, the context and history over the eight months between September and the May complaint make it impossible to conclude that those words violated N.J.S.A. 2C:33-4a. There was no evidence to support the alleged threat to plaintiff's life, or alleged "Mafia connections" of the defendant, and insufficient evidence from which to find "constant harassment" or a threat to make plaintiff's life miserable. Plaintiff's only evidence of a "Mafia" connection was her testimony that at some unspecified time in the past, she met a friend of defendant's family at defendant's parents' house ...

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