June 29, 2007
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. FV-05-428-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 22, 2007
Before Judges Skillman and Holston, Jr.
On February 9, 2006, plaintiff, J.A.R., signed a complaint under the Prevention of Domestic Violence Act (DVA), N.J.S.A. 2C:25-17 to -35, against defendant, M.M. Plaintiff alleged that defendant committed an act of harassment against her, contrary to N.J.S.A. 2C:33-4. After conducting a seven hour plenary hearing on February 15, 2006, the Family Part judge found defendant committed the acts of harassment alleged and granted plaintiff a final restraining order (FRO) against defendant.*fn1
This appeal followed.
Defendant is a Correction's Lieutenant employed at a State prison. Plaintiff is a registered nurse attached to the medical clinic at the prison. The parties met in the course of their employments and began an affair in 2004. According to plaintiff, their relationship was "blissful" until approximately July 2005. Plaintiff knew defendant was married when their affair began.
The testimony was in dispute. Plaintiff described a series of events beginning in July 2005 where defendant was verbally and physically abusive toward her and exhibited acts of extreme jealousy. Defendant repeatedly accused plaintiff of infidelity and would scroll through lists on plaintiff's cell and home phones to see who she had spoken to when he was not present, make her save recorded telephone messages so he could be sure she was not cheating on him, and checked her underwear to make sure she had not engaged in sex. On one occasion defendant observed a feces stain on plaintiff's underwear. As a result, defendant accused plaintiff of having sex with someone else.
Defendant denied plaintiff's version of these events. Defendant instead described plaintiff as engaging in self-destructive behavior as a result of head injuries she sustained from a fall off a horse. The accident caused her to suffer depression, dizziness, ringing in the ears, anxiety and mood swings. As a result, plaintiff began to abuse Xanax and alcohol. When defendant attempted to end their relationship, plaintiff threatened suicide unless their relationship continued. Plaintiff denied defendant's assertions.
Plaintiff testified that the acts of harassment for which she sought an FRO occurred on February 9, 2006. The plaintiff told defendant that the relationship was over in two face-to-face encounters with defendant at work. When she initially told him that the relationship was over in the morning, defendant got angry. However, plaintiff walked away to avoid a confrontation. Later that day, defendant visited the infirmary and plaintiff reiterated her desire to end the relationship. During the course of the conversation, defendant told plaintiff, "let me tell you something, you're not the boss. This is going to go my way." Although defendant tried calling plaintiff at work later that day, she refused to speak to him. Plaintiff left work at her normal time and arrived home at approximately 4:00 P.M.
Defendant drove from his home, approximately an hour driving time away, and appeared at plaintiff's residence unannounced. According to plaintiff, "[h]e walked right in the front door. He was not welcome, did not knock, just barges right in the front door, as he normally does when we fight." Defendant immediately began arguing with plaintiff. Plaintiff repeatedly told defendant to leave but he refused. Although her children were home, one of them asked the children to go to their bedroom.
Defendant's temper rose and he told plaintiff, "we're not breaking up, this isn't over." Plaintiff tried to quell defendant's anger by redirecting the conversation but he grabbed plaintiff by her shoulders and would not let her go. As he squeezed her shoulders, he told her "you're not breaking up with me, you're my bitch, you're going to do exactly what I tell you to do." Plaintiff testified she was "trying to get near the door. Because I kept saying, five million times, just leave." Defendant refused to release plaintiff or to leave her home. Defendant threatened to kill plaintiff and to get her fired from her nursing position at the prison. When he was holding her, plaintiff tried to get away by pushing defendant and, at one point, attempted to knee him in the groin area. He continued to restrain her and refused to leave. The incident ended when plaintiff's daughter entered the room and plaintiff told her to dial 911. Once the 911 call was placed, defendant "went flying out the door."
Defendant's version was different. Defendant testified that when he went to work on February 9, 2006, he went to the clinic where plaintiff worked to talk to her. He approached another officer and indicated to him that he was going to tell plaintiff he was done with her and that the officer should stand by in case she flips out. Defendant told plaintiff he could not take it any more and he was cutting off contact with her. She said she would be okay. The defendant told her if she needed any help, she was free to call him to discuss it.
Later that day, when he got home after work and the gym, there was a recorded message from plaintiff on his phone. Plaintiff questioned how he could do this to her. She said he was the only one she talked to. She started to cry, and said, "you're going to regret this." Defendant called plaintiff's home telephone but it was off the hook.
Defendant decided to drive to plaintiff's home to take her Xanax from her and give it to her mother, who lived nearby. Defendant said he did not want to feel guilty if she hurt herself because she had two children, and he was putting this in the "lap of the family" where it belonged.
When defendant arrived at plaintiff's home, he knocked on the front door. Plaintiff motioned for him to come into the home, where she was watching TV with her children. The children left the room. Defendant sat next to plaintiff on the couch. Defendant said he would still take her to the doctor on Friday if she wanted him to. She said she did not need him to do anything for her. Defendant said he would install her newly purchased screen door when it arrived. Plaintiff said if it cost her $5,000, she would have it done by someone else; that she did not want defendant near her. She told defendant that he destroyed her life and was the cause of her depression. Plaintiff then poured the contents of a bottle of Smirnoff Ice on defendant's head. Defendant said, "[J.A.R.,] are you done?" She then hit the Smirnoff bottle several times on the end table trying to break it. It did not break. Defendant stood up and took the bottle from her. Defendant sought to calm her down. He asked whether she had intended to stab him if she had broken the bottle. She replied "no, I was going to give it to you to slit my wrists."
At that point defendant and plaintiff talked about fifteen to twenty minutes. Defendant said it was over. He said he was talking her Xanax and giving it to her mother. Her mother could then dispense her daily dose of four pills. Plaintiff went "ballistic." She began yelling and screaming. Defendant reached for the Xanax bottle. Plaintiff started clawing at him. He grabbed her arms to stop her. They both fell back onto the sofa. Plaintiff bit defendant on his side. Plaintiff's children came in and were screaming "mommy, stop it." Defendant said, "I am leaving" and plaintiff kept hitting him. When defendant reached the door, plaintiff said "wait to see what I do to your truck." As defendant started to walk out the door, plaintiff grabbed the back of defendant's shirt and started pulling the shirt back with one hand and hitting him with the other. Defendant went down onto his knees because he feared if the shirt suddenly tore, his forward pulling would make him plunge down the front steps. At that point, plaintiff said, "I'm calling 911." Defendant said, "call whoever you want."
In addition to testimony from plaintiff and defendant, the court heard testimony from several witnesses called by defendant. With the exception of defendant's wife, A.M., who gave corroborative testimony to defendant's version of the February 9, 2006 incident, the other witnesses corroborated defendant's version of the prior incidents both parties testified led to the February 9 incident. The trial judge stated he was unable to determine credibility with respect to the pre-February 9 events and thus did not consider the testimony concerning them in arriving at his decision.
The judge, in his oral opinion, detailed the testimony of the parties and the witnesses who testified in the seven hour bench trial. The judge then framed the issue before him as requiring a determination of the credibility of the parties, which version of the events of February 9, 2006 was "more likely than not." The judge resolved credibility in favor of plaintiff. The judge explained:
Number one, her testimony was consistent throughout. . . . [O]n direct examination, cross-examination, rebuttal, both direct and cross, she was consistent with regard to her testimony, both on each of the individual occasions complained of, as well as her testimony with regard to the Defendant in general. That he would make those types of checks, insofar as the cell phone log was concerned, insofar as the messages were concerned, insofar as the threats both to her employment, as well as her person, both during the events of the 9th, as well during the course of the relationship. The detail which was contained in the plaintiff's testimony, and I'm specifically referring to the poop stain on the underwear, is such that I don't believe that it's anything that she made up. I don't think that it's anything that someone would come in here and tell me unless it was the truth. . . . And she also doesn't strike me as having the native intelligence, quite frankly, to make up a story of this particular type, when it comes to poop on underwear, when it comes to the consistency of the story throughout cross, direct and things along those lines. . . . The Defendant, on the other hand, has had to concede that he's a liar, at least to his wife. On not one, but two occasions, that he continued the affair after he told her that it had stopped. And his version of the incident on the 9th, I just find to be completely incredible. He does present to me to be of above average intelligence.
There was testimony with regard to the scarcity of lieutenants in the Corrections Officer service, that this is a rank of some stature that takes some particular doing.
And the version of the 9th that he went down there to get her Xanax, when there were any of several avenues that were available to him, to call the police to document it that way, to call her mother, to try and take care of it that way. It just doesn't make any sense to me that he would get in his car and drive down there to take her Xanax away.
Even assuming that that's what he did, and I find that that's not what he did, it would almost, in my view, rise to the level of harassment in and of itself, to show up at someone's door, unannounced, and tell them that you wanted to take their meds away, after you had broken up with them that particular morning. It just . . . defies commonsense. So, for all of those reasons, I'm going to give [plaintiff] a restraining order.
Defendant contends that even assuming the credibility determinations made by the judge to be true, defendant did not commit the required criminal offense needed to support a DVA FRO. Defendant asserts that the trial court's finding of domestic violence on the basis of harassment was as a result of defendant's conduct in going to plaintiff's home to take her medication away. Defendant submits that conduct cannot constitute the underpinning of a harassment conclusion to support an FRO. N.J.S.A. 2C:15-19 defines domestic violence to include harassment as defined in N.J.S.A. 2C:33-4. N.J.S.A. 2C:33-4 defines harassment in applicable part:
[A] person commits a petty disorderly person's 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;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Thus, harassment is either a single act that is done in a manner likely to cause annoyance or alarm under N.J.S.A. 2C:33-4(a) and (b), or repeated acts committed for the purpose of alarming or seriously annoying another under N.J.S.A. 2C:33-4(c). Subsection (a) deals with communication, while subsections (b) and (c) deal with conduct. To sustain a conviction under subsections (a) or (b), the communication or conduct can be a single act, while a conviction under subsection
(c) requires a "course of conduct."
In State v. Hoffman, 149 N.J. 564, 575 (1997), the Supreme Court stated that the proper focus in a subsection (a) prosecution is whether the method or manner of communication established an harassing intent to annoy or alarm. The Court further stated that each subsection is "free standing" and defines an offense in its own right. Id. at 576.
"Thus, the substantive criminal offense proscribed by subsection (a) 'is directed at the purpose behind and motivation for' making or causing the communication to be made." Ibid. (quoting State v. Mortimer, 135 N.J. 517, 528 (1994)). The Court instructed that "[a] finding of a purpose to harass may be inferred from the evidence presented." Id. at 577. The Court also noted that an abuser who spontaneously appears or makes surprising communications without any legitimate purpose enhances a victim's apprehension. Id. at 586.
In Cesare v. Cesare, 154 N.J. 394, 403 (1998), the Court instructed that when determining whether threatening conduct constitutes an act of harassment, an objective standard applies. Thus, a court should consider a plaintiff's individual circumstance and background in determining whether a reasonable person in that situation would have believed defendant's threat.
Our standard of review is limited. We will affirm a trial court when its factfindings are supported by "adequate, substantial, credible evidence." Id. at 411-12. We will disturb the findings only if they are so manifestly unsupported by credible evidence to "offend the interests of justice." Id. at 412. "Because of the family court's specified jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.
We are satisfied that the record here discloses adequate, substantial credible evidence to support the finding of harassment by the trial judge. Defendant's actions of February 9, 2006 support a finding of harassment as a violation of both N.J.S.A. 2C:33-4(a) and (b).
We first note that the trial judge found plaintiff's testimony concerning the events of February 9 to be credible and believable while finding defendant's version "completely incredible." The judge described defendant's testimony as testimony that "doesn't make any sense."
Plaintiff's testimony was that she advised defendant of the breakup of their relationship at work in the morning. When defendant became angry, plaintiff ended the conversation and went back to her work station. Later that day, defendant came to her work station and plaintiff reiterated her desire to end the relationship. At that point, defendant told her: "Let me tell you something, you're not the boss. This is going to go my way." Although defendant attempted to call plaintiff later that day at work, plaintiff did not speak to him. She left work at the normal time and returned to her home. When plaintiff was relaxing at home with her children, defendant showed up at her home, which was approximately one hour away from his own home, barged in the front door unannounced and uninvited in order to confront plaintiff concerning the breakup. Defendant refused to leave plaintiff's home despite plaintiff telling him repeatedly to leave. During an ensuing argument, one of the parties directed the children into the bedroom. At that point, defendant grabbed plaintiff about the shoulders and physically restrained her. Plaintiff continued to ask defendant to leave. She struggled with him to break free. When defendant was restraining plaintiff, he threatened to kill her and he threatened to get her fired from her nursing position at the prison. During the course of the argument, defendant told plaintiff, "you're not breaking up with me, you're my bitch, you're going to do exactly what I tell you to do." The incident ended when plaintiff's daughter came out of her bedroom and at plaintiff's direction dialed 911. Defendant then fled the scene. Plaintiff testified that while defendant held her, she "was scared to death. Because at that point he had already told me he was going to kill me, and he's going to take my fucking job. And he's right up in my face with that angry temper and that face."
We are satisfied that a reasonable objective person under the circumstances would have taken defendant's communications and threats seriously. Certainly, the repeated communications made by defendant that she could not leave the relationship except on his terms, and the threats to kill her and to have her employment terminated as a result of the breakup were "communications" directed at plaintiff with a purpose to harass her and communicated in a "manner likely to cause annoyance or alarm" in violation of N.J.S.A. 2C:33-4(a). Likewise, defendant's actions in grabbing plaintiff and restraining her in her living room constitute "offensive touching" in violation of N.J.S.A. 2C:33-4(b).
We are convinced, after giving deference to the credibility findings of the trial court, that the trial court's findings by a preponderance of the evidence that defendant violated the DVA by acts of harassment directed toward plaintiff on February 9, 2006 are supported by sufficient credible evidence in the record. See N.J.S.A. 2C:25-29.