January 8, 2007
KEVIN LARKIN, PLAINTIFF-RESPONDENT,
MARCIA LARKIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FV-03-1856-05W.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 31, 2006
Before Judges Skillman and Lisa.
Defendant, Marcia Larkin, appeals from a final restraining order entered under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff, Kevin Larkin. The predicate offense was harassment (N.J.S.A. 2C:33- 4c). See N.J.S.A. 2C:25-19a(13). Defendant argues on appeal that the trial court erred in finding that her conduct constituted domestic violence and violated her due process rights by finding that she committed an act of domestic violence not even alleged in the complaint. We reject these arguments and affirm.
The parties were married in 1984. They had two children, Kevin, born March 28, 1985, and Daniel, born May 10, 1988. Plaintiff is the Sheriff of Mercer County, and he possessed a service weapon. On June 30, 2001, Daniel, then thirteen years old, came into possession of his father's service weapon and ammunition and accidentally shot and killed himself. Naturally, both parents were distraught over this tragedy. Defendant attributed significant blame to plaintiff for Daniel's death, and this incident contributed significantly to the deterioration of the marriage.
Plaintiff began an extramarital affair, which resulted in the birth of two sons, J.M., born on March 23, 2004, and P.M., born on May 17, 2005. By the summer of 2004, defendant's emotional condition continued to decline. She suffered from depression. She attempted suicide. She was confined for a week at a psychiatric facility. She has been found disabled by the Social Security Administration, apparently as a result of her mental health condition.
On August 5, 2004, one day after defendant was released from the psychiatric facility, plaintiff filed for divorce. The parties then ceased living in the same home. Plaintiff continued to reside in the marital home in Yardville. Defendant lived at several locations, including at the parties' Ortley Beach shore home, with her sister, and ultimately in her own apartment.
The conduct constituting the predicate offense occurred between June 10 and June 14, 2005. That conduct, however, must be considered in light of the previous history of harassing conduct by defendant. N.J.S.A. 2C:25-29a(1); Cesare v. Cesare, 154 N.J. 394, 402 (1998). We therefore describe the prior history.
During the fall of 2004, defendant placed under the windshield of plaintiff's car two photographs. One depicted both of their sons, with the caption, "Daddy we thought you only had 2 children! Us." The other depicted Daniel in his casket, bearing the caption, "This is when I became unstable. You go from one crazy woman to a crazier woman!!!!!"
Although defendant ceased living in the Yardville home in late July 2004, she broke into the home three times. On one occasion, she entered plaintiff's bed while he was sleeping. On another occasion, she destroyed his computer.
On December 6, 2004, plaintiff filed a domestic violence complaint against defendant, alleging the most recent break in on December 6, 2004, at which time the police were called and defendant refused to leave. Plaintiff also alleged that defendant called him more than forty times in one month, sometimes in the early morning hours, and that she threatened him physically and threatened to "destroy" him. Defendant also stood outside of the marital home screaming that plaintiff had killed their son. A temporary restraining order was issued, but rather than proceed to a final hearing, on December 20, 2004, plaintiff voluntarily withdrew the domestic violence complaint. The temporary restraining order was dismissed and the parties entered into a consent order in the matrimonial action providing for mutual civil restraints. The consent order prohibited any personal, email, telephone, or written contact. It also barred defendant from the marital home, and barred defendant from having any such contact with plaintiff's paramour, L.M.
In January 2005, plaintiff's attorney corresponded with defendant's attorney, reporting defendant's violation of the consent order by sending plaintiff two emails and appearing at plaintiff's residence. The letter further stated that "[i]f she violates [the consent order] again, appropriate action will be taken through the Courts." In the ensuing months, defendant continued to initiate contact with plaintiff. On March 23, 2005, the first birthday of plaintiff's and L.M.'s son, J.M., defendant placed a stuffed animal with a note stating, "Happy First Birthday [J.M.M.] Dan will be your Guiding Light. M." Around Father's Day 2005, defendant left a ribbon and a note for plaintiff, saying, "As many kids as you make Dan won't be replaced."
On May 17, 2005, defendant appeared at plaintiff's residence, where she remained in the yard for several hours. Plaintiff described the incident this way: "She would knock on the door for five or ten minutes, sit down, smoke a cigarette, get back up, bang on the door again, ring the doorbell. And it just went on and on." Plaintiff repeatedly asked defendant to leave. She would not. To avoid a confrontation with her, plaintiff called his cousin, Tim Larkin, a Trenton police officer, who came to the home and stood between plaintiff and defendant until plaintiff got into his car and left.
On May 19, 2005, at about 1:15 a.m., defendant called plaintiff on the phone. Plaintiff answered the phone and described what then happened as follows:
It was Marcia and I told her not to call me anymore to talk to her. She shouldn't be calling me. I hung up the phone, it rang again. I answered it. I told her the same thing. She started getting nasty before I hung up, so I hung up and I just didn't answer the phone when it rang the next time.
Defendant sent two emails to plaintiff in January and March 2005, expressing her ongoing feelings of love for him and, on one occasion, inviting plaintiff and his girlfriend to come to her home to celebrate their older son's birthday on March 28, 2005. In each email, and in her trial testimony, she acknowledged her awareness that her communication was in violation of the civil restraining order.
During this same timeframe, defendant posted messages on the Mercer County Bulletin Board, a public forum, that were critical of plaintiff and made reference to Daniel's death and defendant's belief that plaintiff was to blame. For example, defendant posted these messages on April 23, 2005: "I already lost one son due to no gun lock[.] I don't want to lose another[.]" And, "I would hate for anyone to go thr[ough] what I went thr[ough] after my son was lost due to carelessness." On April 22, 2005, she posted this message:
The Democrats should look into who they have running as the Sheriff for this year[']s election. The man is not stable and should never have been allowed to return to work or carry work apparatus [gun]. He is unsafe and they will have a major explosion on their hands. Get the man some help!!!!
In the aftermath of these events, defendant engaged in additional conduct between June 10 and June 14, 2005, that induced plaintiff to sign the domestic violence complaint that is the subject of this appeal. In reference to the parties' wedding anniversary of June 17, defendant mailed to plaintiff a "Happy Anniversary" card, which plaintiff received on June 10, 2005. On June 14, 2005, plaintiff found three more copies of the same card taped to his front door, in his mailbox and taped to his backdoor. Defendant admitted mailing and delivering all of the cards. On June 14, 2005, defendant sent three emails to plaintiff. Two were lengthy (three to four pages), written in poetic form, and expressed defendant's feelings of sadness as she sat in the courtroom recently (presumably in the divorce proceedings, which concluded with a final judgment of divorce on July 9, 2005), and professed her continuing love for her husband and hope that the divorce would not go through and they might reconcile. The third email was a prayer that also expressed a hope of reconciliation, that ended with the following: "Forgive my weaknesses as I have forgiven yours. We both got lost along the way. Goodbye my love and soul mate!!!!"
On June 12, 13 and 14, 2005, defendant posted a number of messages on the Mercer County website that were derogatory and regarded plaintiff, his girlfriend, and their children. One, for example, addressed to "[L.], KCL[,]" and others said:
The Sheriff's son is livid with your little newborn. His middle name better not be Daniel. I heard the legal son of the Sheriff called that little one a bastard. You've destroyed a young man's family for your own idiotic gains. Tell your hubby to get a better paying job so you don't have to get child support from at least 3 men. Watchout Mercer she may be after you next!!!!
Another, addressed to L.M., included this:
Hope you follow Kcl to his safety speeches and remind him not to use his dead son's name in vain. He doesn't know much about safety except to delete what you and he doesn't like on this forum. Don't preach to new cadets what the Sheriff doesn't practice. . . . A man who can't keep his own family sa[f]e shouldn't be preaching about safety. Vote [for the opposition party] for Sheriff this Nov. We need someone who can keep the county as safe as your own personal home.
During the ten months between August 2004 and June 2005, plaintiff never initiated any contact with defendant. Plaintiff testified that he was concerned for his safety and that of his children by L.M. He testified that defendant "came up to my girlfriend's house one day and asked to hold my son." He further related that defendant "called them little bastards and other names." Plaintiff expressed these safety concerns in connection with his description of defendant's emotional instability and that she is "on psych medications, [and] she's an alcoholic."
Aside from concerns for plaintiff's physical well-being, the following comment by the trial judge, after hearing the testimony of both parties and observing their demeanor, is highly significant with respect to plaintiff's emotional well-being as affected by the continuing contacts by defendant and her constant reminders to him of his possible blameworthiness in Daniel's death. The judge observed "that during the . . . testimony today, when addressing the issue of the death of Daniel, on several occasions, Mr. Larkin became very emotional when addressing that issue. Mrs. Larkin, for whatever reason, maintained a fairly flat affect . . . in addressing those issues."
The domestic violence complaint that is the subject of this appeal alleged the following acts of domestic violence:
PLA RECEIVED 3 MESSAGES VIA MAIL TODAY. ON 6/10/05 PLA RECEIVED 1 MESSAGE FROM DEFT ALL SAYING THE SAME THING. PLA IS CONSTANTLY BEING HARRASSED [SIC] BY DEF DESPITE CIVIL RESTRAINTS. PLA RECEIVED 1 LENGTHY EMAIL AND THERE ARE 3 POSTINGS ON INTERNET ALL ON 6/14/05 The alleged predicate offense was harassment. The complaint described a prior history of domestic violence, which included references to the May 17, 2005 appearance by defendant in front of plaintiff's house for three hours, the phone calls in the early morning hours of May 19, 2005, and two break-ins by defendant to plaintiff's home in December 2004, during one of which she destroyed his computer.
After the complaint was filed and served, defendant's attorney requested discovery from plaintiff's attorney, which was provided, including copies of all but one of the documents we have referred to in this opinion. The only item not furnished was the ribbon and note delivered by defendant to plaintiff around Father's Day 2005 ("As many kids as you make Dan won't be replaced") but that exhibit was admitted in evidence without objection. Defendant's attorney candidly acknowledged at oral argument before us that the evidence resulted in neither surprise nor prejudice, notwithstanding a lack of prior notice.
Defendant argues that her conduct between June 10 and June 14, 2005 is insufficient to constitute harassment. She argues that the anniversary card and her emails to plaintiff were nothing more than expressions of her continued feelings of love for plaintiff and hopes at a reconciliation. She further argues that the internet postings were not directed at plaintiff but at L.M., that plaintiff rarely read postings on the Mercer County website, and, in any event, the postings constituted protected free speech.
We agree that the anniversary cards and emails were benign in their content and would not, viewed in isolation, constitute harassment. See, e.g., Sweeney v. Honachefsky, 313 N.J. Super. 443, 448 (App. Div. 1998) ("Surely the law must have some tolerance for a disappointed suitor trying to repair a romantic relationship when his conduct is not violent or abusive or threatening but merely importuning.") We also agree that the internet posting constituted protected free speech. See State v. Hoffman, 149 N.J. 564, 582-83 (1997) (holding that harassing communications must be narrowly construed to avoid an over-breadth challenge on First Amendment grounds, and noting that "[m]any forms of speech, oral or written, are intended to annoy[,] [l]etters to the editor of a newspaper are sometimes intended to annoy their subjects[,] [and] [w]e do not criminalize such speech, even if intended to annoy, because the manner of speech is non-intrusive."). However, this does not end the inquiry.
The trial judge found harassment under N.J.S.A. 2C:33-4c, which provides that a person is guilty of the offense who, "with purpose to harass another, . . . [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." In the context of a domestic violence case, in addition to considering the discrete elements of the predicate offense, the court must also consider additional factors. These include any previous history of domestic violence, including harassment, the existence of immediate danger to the victim, and the best interests of the victim. Cesare, supra, 154 N.J. at 401; N.J.S.A. 2C:25-29a(1), (2) and (4). It is by now well settled that "not only may one sufficiently egregious action constitute domestic violence under the Act, even with no history of abuse between the parties, but a court may also determine that an ambiguous incident qualifies as prohibited conduct, based on a finding of violence in the parties' past." Cesare, supra, 154 N.J. at 402. With respect to harassment, "[i]n determining whether a defendant's conduct is likely to cause the required annoyance or alarm to the victim, that defendant's past conduct toward the victim and the relationship's history must be taken into account. The incidents under scrutiny must be examined in light of the totality of the circumstances." Hoffman, supra, 149 N.J. at 585.
The judge in this case properly reviewed the entire course of conduct, as required by the Act, the case law, and common sense. The past history here consisted of a continuing course of conduct for ten months in which defendant repeatedly initiated unwanted contact with plaintiff. Since December 2004, these contacts were not only unwanted but in violation of a civil restraining order. That order was negotiated and consented to by the parties, in part, in consideration of the dismissal of the temporary restraining order in plaintiff's favor and plaintiff's willingness to forego seeking a final restraining order at that time.
The nature and content of defendant's communications with plaintiff during these months were mixed. On some occasions, she expressed her continuing love for plaintiff and hopes at reconciliation. On other occasions, sometimes simultaneously, she expressed her continuing disdain for him because of his alleged blame for causing their son's death and because of his infidelity. On other occasions, the contacts had no content because plaintiff refused to engage with defendant. Throughout this timeframe, plaintiff repeatedly urged defendant to stop contacting him. Throughout this time, defendant was in an unstable and apparently unpredictable emotional state. By her own testimony, she admits "there were times that my mind was not functioning properly."
Although the internet postings (including those between June 10 and 14, 2005 as well as the earlier ones we have mentioned) are protected free speech and cannot independently support a finding of harassment, they provide context to defendant's conduct and constitute part of the totality of the circumstances that must be evaluated. They demonstrate an ongoing disdain of plaintiff by defendant because of the circumstances of their son's death and because of plaintiff's conduct in starting a new family with another woman. As the trial judge noted, plaintiff (as well, to be sure, as defendant) suffered continuing severe emotional distress as a result of Daniel's death. The continuing reminders by defendant, privately and publicly, to plaintiff of his potential blame in that tragedy were detrimental to his mental and emotional well-being.
The core purpose of the Act "effectuates the notion that the victim of domestic violence is entitled to be left alone. To be left alone is, in essence, the basic protection the law seeks to assure these victims." Hoffman, supra, 149 N.J. at 584. Repeated unwanted contacts for many months, resulting in an earlier domestic violence complaint and the entry of a consent civil restraining order which was then repeatedly violated, were plainly designed to deepen the emotional wound in plaintiff resulting from Daniel's death. This is forceful evidence of a purpose by defendant to seriously annoy plaintiff.
See, e.g., Pazienza v. Camarata, 381 N.J. Super. 173, 183-84 (App. Div. 2005). The trial judge found that the anniversary card, lengthy emails and prayer sent by email were not "in and of themselves" harassing. However, in light of the past history, the judge found that the pattern of conduct, which included the predicate acts, satisfied the elements of N.J.S.A. 2C:33-4c.
Further, considering the predicate acts and the past history, the judge determined that the best interests of the victim, see N.J.S.A. 2C:25-29a(4), required a final restraining order:
Based upon all of that, it is the Court's conclusion that the parties have the sufficient relationship to trigger the application of the Domestic Violence Act, that an act of domestic violence did occur, taking into account the past history, and the Court does have concern that the continued conduct, absent a final restraining order, by Mrs. Larkin is going to represent a -- a danger, it's going to be deleterious to the -- the health of Mr. Larkin. It's apparent during his testimony today that the death of his son weighs heavily upon him for a number of reasons.
And without a -- a final restraining order, the Court has great concern that Mrs. Larkin's conduct would continue.
We are satisfied that the record contains sufficient evidence to support the judge's conclusion. See State v. J.T., 294 N.J. Super. 540, 544 (App. Div. 1996). Further, because of the special expertise of Family Court judges in assessing domestic violence cases, their factual determinations are entitled to enhanced deference by a reviewing court. Cesare, supra, 154 N.J. at 413. The Court there expressed its confidence that Family Court judges "can successfully balance the interests of society in deterring the evils of domestic violence and caring for families." Ibid. (quoting Brennan v. Orban, Jr., 145 N.J. 282, 304-05 (1996)).
Remedies under the Act are to be liberally construed because of the Act's remedial nature. Id. at 400. Contrary to defendant's contention that her contacts with plaintiff evidence nothing more than low level, routine "domestic contretemps," the emotional states of both parties were obviously damaged severely by their son's death. Defendant's constant reference to the tragedy and her constant allegation that plaintiff was to blame, were damaging to plaintiff's mental and emotional health. Despite the civil restraining order and plaintiff's persistent refusal to engage in communication with defendant when she initiated contact, defendant refused to leave plaintiff alone. Her conduct was escalating. Under these circumstances, we find no error in the judge's conclusion that the issuance of a final restraining order was in the plaintiff's best interest to prevent immediate danger to his health and well-being.
We also reject defendant's due process argument. Relying on J.F. v. B.K., 308 N.J. Super. 387 (App. Div. 1998), she argues that the finding of harassment was based upon conduct "that was not even alleged in the complaint." We disagree. The complaint here sufficiently placed defendant on notice of the allegations against her. Combined with the extensive discovery, she was on notice of the entire course of conduct leading up to the predicate acts alleged to constitute domestic violence. There was no allegation in the trial court, nor is one made on appeal, of any surprise. Defendant was represented by competent counsel. All of the evidence against her was admitted without objection. She did not request an adjournment because of a perceived need to defend against unexpected allegations and evidence.
The conduct found to constitute the predicate act of harassment here was not to the exclusion of that alleged in the complaint as in J.F. The judge found that the anniversary cards, which were mailed and then posted at three different locations at plaintiff's residence and the emails (as well as the postings), when viewed in light of the prior history and civil restraining order, constituted a course of harassing conduct. Without those surrounding circumstances, the judge stated that he would not find harassment based on those acts.
But the surrounding circumstances were, as they must be in a domestic violence case, considered. This was not a case in which a hearing on a complaint alleging one act of domestic violence was converted into a hearing on other acts of domestic violence which were not even alleged in the complaint. See J.F., supra, 308 N.J. Super. at 391-92.
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