On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-228-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin and Lihotz.
Defendant Joseph Riley appeals from a judgment of conviction and sentence, following a two-day bench trial in the Family Part, for contempt of a final restraining order (FRO) issued under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, a disorderly persons offense, N.J.S.A. 2C:29-9b. An additional charge of harassment, a petty disorderly persons offense, N.J.S.A. 2C:33-4a, was dismissed. Defendant was restrained from further contact with the victim, who is his estranged wife, Caroline Riley, and sentenced to pay a fine of $150 along with VCCB and SNSF assessments. We reverse, concluding the trial evidence presented was insufficient to warrant a conviction for contempt.
On October 6, 2005, the Family Part issued the initial FRO, which included a provision restraining defendant from having any form of contact or communication with Caroline, except as specifically noted. That same order granted Caroline temporary custody of the parties' six children, who ranged in age from one to eleven years of age. Defendant was awarded parenting time every Thursday and every other Friday through Sunday. By consent, the FRO was amended on November 3, 2005, to allow email and telephonic communication between defendant and Caroline to discuss issues related to the children, and to schedule additional parenting time, which defendant noted was one weekday each week. A second amended FRO was entered on November 30, 2005, to add defendant's obligation to pay Caroline's counsel fees.
Defendant testified that on December 2, 2005, Caroline asked him to drop-off a check, the parties' five-year-old son's sleeping blanket and some toner for a printer. Defendant advised he would place the items in Caroline's mailbox. Trial testimony by the parties and defendant's brother Miles Riley supported that the parties regularly used the mailbox to transfer items between themselves.
In the early morning of December 6, 2005, the parties exchanged emails regarding Christmas parenting time issues. Thereafter, defendant stated Caroline called him at 10:58 a.m., and they spoke about the parenting time issues. Defendant affirmed that during that twelve-minute telephone call, he told Caroline he would be dropping-off their son's sleeping blanket and his stuffed tiger, which were left behind during the last visitation. No one disputes that defendant actually left a bag containing the child's possessions in Caroline's mailbox on December 6, 2005.
As defendant approached the former marital home, he testified that he saw the parties' five-year-old son, alone on the front lawn, which "distracted him." Defendant accidentally drove into the Belgian block curb, which caused a flat tire and disabled his vehicle in front of Caroline's residence.
Caroline and defendant gave differing accounts of their interactions thereafter. Caroline testified she saw defendant in front of her house at 10 a.m. after she had received defendant's disparaging December 6, 2005 email at 9:11 a.m. Caroline stated that she felt "shocked and a bit frightened" by the course language used by defendant in his brief email response, so she was concerned when he appeared in front of her house. Caroline maintained defendant did not relate his intention to stop by her home to drop the child's items in her mailbox. When Caroline saw defendant's car outside her home, she "called her [divorce] lawyer." She stated that while she was on the telephone with her attorney, defendant made "several" calls, "at least five" to her, using his cellular phone. At her attorney's suggestion, Caroline called defendant to find out what he wanted. In that telephone call, defendant responded that he had a flat tire and requested to go "into the garage and get something to fix [it]." The prosecutor asked if defendant said anything else, and Caroline said, "Not that I recall." After again contacting her attorney, Caroline followed the lawyer's suggestion and "yelled out [her] door" asking what defendant was doing. Defendant said nothing. She stated she expressed her desire that he "drive away" and he "then raised his hands" in a gesture "like what am I suppose to do?"
Caroline called the police because defendant did not leave the premises.
On cross-examination, Caroline identified emails she had sent to defendant, which contained equally course language directed to him. She admitted that she and he used such language routinely during the parties' twelve-year marriage. Caroline agreed that defendant had sent her a second email that same morning at 10 a.m., which did not contain "foul language." The communication said: "Allow me to give you an answer that is more intelligent that the previous one," and further "stat[ed] he wished that [she] did not withhold the children from him."
During defendant's testimony, he introduced his cellular telephone records, which, he testified, reflect Caroline's calls to him. He identified the twelve-minute telephone call she placed at 10:58 a.m., and a two-minute call she made at 11:29 a.m. Defendant explained that, when the latter call was made, his vehicle was disabled in front of the former marital home. In that conversation, Caroline asked what he wanted and he told her he was delivering their son's possessions, and he had a flat tire, which he needed to change. Defendant confirmed he did ask to go into the garage to retrieve a spare tire, and also questioned Caroline on why their five-year-old was unaccompanied after exiting the school bus. Defendant testified Caroline called him a second time at 11:37 a.m., inquiring why he had not left. Defendant testified he told her that he could not locate a spare tire or the necessary tire changing tools in the van and asked whether the parties' oldest child could get him the spare tire in the garage; Caroline declined his request. Defendant states he again raised the issue about their unattended five-year-old son, suggesting he disagreed with the child walking from the bus to the house alone. Caroline told him she had "an arrangement with the bus driver" and the child was not his concern. She then ended the call.
Defendant called Caroline back, making two one-minute calls: the first, to her mobile telephone at 11:38 a.m., and, when she did not answer, the second, to the residence telephone at 11:39 a.m. Defendant testified he wanted to continue the discussion about the parties' son being left alone outside, but Caroline did not answer either call. The telephone records list a final one-minute call at 11:44 a.m., which is identified on the bill in the same manner ...