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Bresocnik v. Gallegos

February 25, 2004

KAREN BRESOCNIK, PLAINTIFF-RESPONDENT,
v.
ALEXANDER GALLEGOS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FV-12-1366-03; DV-2017.

Before Judges Pressler,*fn1 Ciancia and Alley.

The opinion of the court was delivered by: Ciancia, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 10, 2004

This is a domestic violence case. Defendant Alexander Gallegos appeals a final restraining order entered against him and in favor of his former wife, Karen Bresocnik. The trial court found defendant had harassed his wife by communicating with her in violation of N.J.S.A. 2C:33-4(a). We now reverse.

The parties dated for approximately six years before being married in Idaho in May 2002. For reasons not entirely clear from the record, the marriage was annulled in a matter of days. Defendant, a Captain in the United States Army and apparently a career officer, returned to Fort Bragg, North Carolina. Plaintiff, an elementary school teacher, came to New Jersey to work and live. Defendant attempted to communicate with plaintiff by sending letters to plaintiff's godmother who also lived in New Jersey. Plaintiff apparently never read those letters and their content is not part of the trial record. Defendant also sent e-mails to plaintiff but, again, copies of those e-mails, or even descriptions of their content, are not part of the record. Plaintiff did recall that in one letter or e-mail defendant referenced the recent spousal slayings that had occurred at Fort Bragg and said that because of those he appreciated her a lot more.

The event that precipitated plaintiff's application for a domestic violence restraining order occurred on January 6, 2003. On that date, a letter from defendant to plaintiff was hand-delivered to plaintiff at her school by an"investigator" hired by defendant. Plaintiff did not have a copy of the letter with her in court and did not describe its content. The content was apparently irrelevant. It was the manner of delivery that assertedly caused plaintiff to fear for her safety and the safety of her young students. Exactly why plaintiff felt threatened is hard to discern. She was upset that she was led to believe that she was signing for a legal document when, in fact, it was a letter from defendant. Plaintiff also testified she was upset because on one occasion, apparently when she and defendant were dating, defendant allegedly said that he had contacts and could have somebody watched.

Essentially on these proofs the trial court found defendant had violated N.J.S.A. 2C:33-4(a), which provides:

Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, 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;....

In State v. Hoffman, 149 N.J. 564, 576 (1997), our Supreme Court set forth the elements of N.J.S.A. 2C:33-4(a):

A violation of subsection (a) requires the following elements: (1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient.

Here, the trial court was apparently aware of the relevant law, but made no specific finding that the purpose of defendant's conduct was to harass the plaintiff. In our view, no such finding was available on the facts. Nor does this record support a finding that defendant's conduct was reasonably likely to cause"annoyance or alarm" as those terms are used in N.J.S.A. 2C:33-4(a). In Hoffman, the Court found that two mailings of an envelope each containing a torn support order, a financial statement, and a motion to modify support, that were not sent anonymously and did not contain coarse language, did not constitute harassment. Hoffman, supra, 149 N.J. at 583. The recipient's legitimate expectation of privacy was not violated. Id. at 584.

The present case is an unfortunate example of the trivialization of the Prevention of Domestic Violence Act (Domestic Violence Act). N.J.S.A. 2C:25-17 to -35. That law is not designed to interdict all forms of unpleasant exchanges between parties. The law has serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as"a serious crime against society." N.J.S.A. 2C:25-18. Although the finding of domestic violence is essentially a civil determination, an accused is subject to arrest, N.J.S.A. 2C:25-21b, and is subject to fingerprinting once a final restraining order is entered, N.J.S.A. 53:1-15. A violation of a restraining order is a crime of contempt. N.J.S.A. 2C:25-30; N.J.S.A. 2C:29-9. The order itself can impose wide-reaching sanctions on ...


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