July 19, 2007
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-1893-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2007
Before Judges Kestin and Lihotz.
Defendant, R.B., appeals from the entry of a final restraining order (FRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (PDVA). P.H.-S. is R.B.'s ex-wife. She filed a complaint for relief, alleging harassment, N.J.S.A. 2C:33-4, by R.B. after she received an unsigned letter. P.H.-S. attributed the letter to R.B., and asserted the correspondence was designed to intimidate and threaten her because she and R.B. were embroiled in matrimonial litigation regarding R.B.'s efforts to emancipate the parties' child and terminate child support.
During the final hearing held on June 21, 2006, P.H.-S. established that she received the following correspondence on June 3, 2006:
You think that the two messages sent from above would have woke you up to be a better person/parent.
The two messages sent were: Not being allowed to bring another child into the world and a almost fatal car crash.
Being raised as a Christian, you would think you would learn the values of family and friends as well as being a good person who can portray proper family values to her child.
I am looking down on you from the heavens with disbelief and heartache. I think its time to send you another message. You have not heeded the first two, I sincerely hope this one wakes you to start doing the Christian thing. If you don't know what it means to be a good Christian, see your local priest and find out, but do it quickly, TIME IS RUNNING OUT FOR YOU!"
P.H.-S. testified she believed the letter was sent by R.B. for several reasons. First, she argued that the letter was extremely personal in nature, and could have been sent only by someone who had knowledge of her prior miscarriage, her religious beliefs, and her past car accident. Second, she asserted that the letter was routed through San Bernardino, California, which is approximately sixty to seventy miles from R.B.'s residence and past letters received from R.B. were similarly postmarked. Third, P.H-S., related an incident occurring fourteen years earlier suggesting the parties' past history included domestic violence. She described R.B.'s actions as "stalking," when he followed her and a man she was dating one evening, called her several times that same evening, and attempted to enter her residence. Finally, P.H.-S. suggested that three matrimonial motions filed by R.B. over a two-month period were designed for the sole purpose of harassing her. The receipt of this letter, four days following the denial of R.B.'s motion to emancipate the parties' child, suggested to her that it was tied to the matrimonial controversy. Two days later, R.B. filed another motion. P.H.-S. testified that she felt the letter was sent "to scare [her] not to do anything" about the matrimonial motion filed by R.B.
R.B., who lives in California, entered his appearance telephonically. R.B. explained that the parties' marriage ended in divorce approximately thirteen years ago, but matrimonial litigation had continued throughout that time period. He denied that he wrote or sent the letter, suggesting it was contrived by P.H.-S. to "make [him] look bad in the [matrimonial] Court." He challenged the explanation of the postmark, suggesting that P.H.-S. could have placed the letter in an envelope from a letter he had sent to her.
P.H.-S. advised that the original documents were in the custody of and being examined for fingerprints by the Egg Harbor Township Police Department (EHTPD). With the parties' agreement, the trial court adjourned the matter pending receipt of the EHTPD investigation report.
On September 6, 2006, the court resumed the FRO hearing. P.H.-S. was present and R.B. appeared by telephone. The trial judge commenced the hearing stating:
The issue in the case is whether or not the defendant sent a certain letter . . . to plaintiff. During the previous hearing[,] he denied having any knowledge of it . . . and denied sending it. He acknowledged sending some other . . . correspondence but denied sending a particular envelope. And, given the fact that the [EHTPD was] conducting an investigation[,] I adjourned the hearing to await the results of that investigation.
I received the [EHTPD] Supplemental Investigation Report [that] is dated August 17 and had a copy of it sent to the defendant in California and a copy sent to the plaintiff.
[R.B.], the results of that investigation showed that your fingerprints were on the letter.
The trial judge concluded R.B.'s testimony was not credible "in light of the plaintiff's testimony and the police report" and he issued a FRO.
On appeal, R.B. presents the following arguments for our consideration:
THE TRIAL JUDGE MADE NO FINDING WITH REGARD TO WHETHER THE PLAINTIFF HAD PROVEN THAT ONE OR MORE OF THE PREDICATE ACTS SET FORTH IN N.J.S.A. 2C:25-19a HAD OCCURRED.
THE TRIAL JUDGE DID NOT EVALUATE THE FACTORS SET FORTH IN N.J.S.A. 2C:25-29(A)(1)-(6) AND DETERMINE WHETHER A FINAL RESTRAINING ORDER WAS NECESSARY TO PROTECT THE PLAINTIFF FROM ANY IMMEDIATE DANGER OR TO PREVENT ANY FURTHER ABUSE.
THE TRIAL COURT LACKED JURISDICTION AS PLAINTIFF DOES NOT FIT WITHIN THE DEFINITION OF A VICTIM UNDER [THE PREVENTION OF] DOMESTIC VIOLENCE ACT.
Our role in reviewing the trial court's decision is limited. We are bound by the trial court's findings "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)); Peterson v. Peterson, 374 N.J. Super. 116, 121 (App. Div. 2005). "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc., supra, 65 N.J. at 483-84). Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility because the trial court "sees and observes the witnesses [and] hears them testify." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).
Domestic violence is a "pattern of abusive and controlling behavior injurious to its victims." Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995). The PDVA incorporates certain criminal statutes when determining whether an act of domestic violence has occurred. "However, it is clear that the drafters of the law did not intend that the commission of any one of these acts automatically would warrant the issuance of a domestic violence order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006).
Because we are analyzing a single event, the applicable statute defining harassment provides, in pertinent part:
[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;
A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received. [N.J.S.A. 2C:33-4.]
After review of this record, we conclude that the trial court made no findings substantiating that P.H.-S. presented credible evidence proving the elements of harassment and that the act of harassment was domestic violence.
Although the letter on which the charge was predicated offense invoked religious convictions, which may be especially sensitive, we cannot discern evidence in the record to sustain a finding that the purpose of the letter was to alarm or annoy the P.H.-S., as defined by N.J.S.A. 2C:33-4. In response to the trial court's inquiry on this issue, P.H.-S. discussed the reaction of an investigating police officer and the parties' daughter, neither of which is relevant to the issue. P.H.-S. stated that she perceived the statement "time is running out," which follows the phrase "if you don't know what it means to be a good Christian, see your local priest and find out" was "a threat"; however, she did not explain why or how that would be so.
A purpose or intent to harass is an integral finding to a determination of harassment. Peterson v. Peterson, 374 N.J. Super. 116, 123 (App. Div. 2005); Bresocnik v. Gallegos, 367 N.J. Super. 178, 183 (App. Div. 2004); E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990). "[A] finding of a purpose to harass may be inferred from the evidence presented" and from "[c]ommon sense and experience." State v. Hoffman, 149 N.J. 564, 577 (1997) (citations omitted). The letter's content is insensitive, as it raises past difficulties experienced by P.H.-S. It may also be considered offensively sacrilegious in its imitation of omniscience. Even assuming a proper finding that R.B. purposely offended P.H.-S. in sending the letter, this would be inadequate to establish the requisite element of purpose to harass. See E.K., supra, 241 N.J. Super. at 570.
Additionally, the trial court made no finding of an immediate threat to P.H.-S.'s safety posed by her ex-husband who resided 3000 miles away. There was no record of past acts of physical violence or emotional abuse. We cannot discern, from this record, whether the court found R.B.'s prior alleged act of following P.H.-S qualified as a past act of domestic violence, which could add context to P.H.-S's reaction to receipt of the letter. We also observe that R.B. was not given the opportunity to address the briefly stated event related by P.H.-S, which occurred while they were married over fourteen years prior to the hearing.
P.H.-S. also contends that the repetitive matrimonial motions filed by R.B. asserting the same relief were harassing. A finding of bad faith on the part of a movant is weighed by trial courts when determining whether to assess counsel fee awards. See Kozak v. Kozak, 280 N.J. Super. 272, 277-78 (Ch. Div. 1994), certif. denied, 151 N.J. 73 (1997). So too, where a pattern of frivolous litigation can be shown, the Assignment Judge or Presiding Judge not only has authority to review and determine whether to dismiss frivolous claims before the time and other expenses of the courts and of the litigants are wasted, see Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 391-92 (App. Div. 2000), but also has the power to enjoin prospective harassing litigation, which must be "exercised consistently with the fundamental right of the public to access to the courts in order to secure adjudication of claims on their merits." See D'Amore v. D'Amore, 186 N.J. Super. 525, 530 (App. Div. 1982). We place R.B. on notice that the court holds the power to craft appropriate sanctions, if warranted, to curb abusive litigation tactics. Nevertheless, the provisions of the PDVA must not be invoked to deter repetitive or baseless litigation.
We would be remiss if we failed to comment on the informality employed by the trial court in conducting this proceeding. First, neither party was afforded the right of cross-examination. A trial must be a search for truth. State v. Fort, 101 N.J. 123, 131 (1985). "Cross-examination is the most effective device known to our trial procedure for seeking the truth." Tancredi v. Trancredi, 101 N.J. Super. 259, 262 (App. Div. 1968) (quoting First Nat'l Bank of Freehold v. Viviani, 60 N.J. Super. 221, 225 (App. Div. 1960)).
Second, the trial court reviewed and relied on the EHTPD supplemental investigation report*fn1 without making a determination that the out-of-court statement of a non-testifying witness fit within one of the exceptions to the hearsay rule. N.J.R.E. 802. Although procedural rules may be relaxed, as necessary, to ease the process, particularly when accommodating two self-represented litigants, R. 1:1-2, the trial court may not abrogate adherence to such a fundamental legal principle as admissibility of evidence, and bottom its critical findings on hearsay.
As a result of these two significant omissions, the credibility findings of the trial court are flawed. "[I]n the absence of th[e] critical safeguard [of the right of cross-examination], the integrity of the fact-finding process was compromised because the trial court was unable to fully and fairly assess credibility." Peterson, supra, 374 N.J. Super. 116, 125 (App. Div. 2005) (internal quotations and citations omitted).
The requisite evidentiary findings to sustain a conclusion that the transmittal of the letter to P.H.-S. satisfied the elements of criminal harassment are lacking in this record. Thus, the trial court's determination cannot be sustained. Cesare, supra, 154 N.J. at 412. We do not remand, but rather exercise our authority under Rule 2:10-5. We conclude that the transmittal of this single, anonymous communication does not present an event of domestic violence. The issuance of a final domestic violence restraining order "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.'" Bresocnik, supra, 367 N.J. Super. at 181 (quoting N.J.S.A. 2C:25-18); see also Peterson, supra, 374 N.J. Super. at 124. It should not be misused in situations which do not involve violence or threats of violence. Kamen v. Egan, 322 N.J. Super. 222, 229 (App. Div. 1999).
Accordingly, we reverse and vacate the restraining order against R.B.