March 27, 2008
KAREN WINTERS, PLAINTIFF-RESPONDENT,
PAUL EIERMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FV-02-002060-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 15, 2008
Before Judges Fuentes and Chambers.
Defendant Paul Eierman appeals from the entry of a domestic violence restraining order dated April 18, 2007, entered against him. We reverse, since the single act of touching plaintiff Karen Winters to stop her from getting into her car in order to talk to her at the end of their romantic relationship did not constitute domestic violence within the meaning of the statute.
Plaintiff and defendant met sometime in 2005. In the beginning of March 2006, plaintiff, although married to another man at the time, moved in with defendant. Plaintiff moved out about six months later to return to her husband. The parties, however, continued to maintain a relationship. They spoke on the phone; defendant picked plaintiff up at the airport in November 2006; and plaintiff gave defendant a Christmas present in 2006. They last had intimate relations in January 2007.
On Valentine's Day, 2007, they went out for drinks and dinner, and defendant gave plaintiff presents and cards. Defendant testified that they had lunch and drinks on February 21, 2007. However, when defendant stopped by plaintiff's workplace on February 22, 2007, to give her a present for her fiftieth birthday, he testified that she was "not too receptive," and when he stopped by on February 23, 2007, to wish her a happy birthday, she gave him the "cold shoulder." He testified that at that point, he understood that "things had changed." He did not speak to her during the month of March. On April 6, he stopped by to see her at her place of employment, and she once again was "cold."
The domestic violence complaint arose out of an incident that took place a few days later, on April 10, 2007. On that day, at about 7:30 p.m., which was the time plaintiff ended her work day, defendant went to plaintiff's place of employment where she worked as a receptionist. Defendant explained that he went there to talk to her to find out why she was so cold to him, and to complete "some unfinished business," since he still had some of her possessions, including her computer and some items of clothing, at his residence. When he walked in, plaintiff asked him to leave, which he did. When she left about fifteen minutes later, defendant was waiting in the parking lot for her.
The testimony of the parties differs as to what happened next. According to plaintiff, defendant blocked the entrance to her car and grabbed her arm*fn1 to prevent her from getting into the car. She dropped everything and ran into the building, where she called the police. She acknowledged that she suffered no injury in this event, nor did defendant pursue her further. According to plaintiff, the whole incident lasted less than a minute. Defendant testified that he attempted to talk to her, asking her what was wrong. When he leaned over, she began to pull the car door shut and started screaming. He backed away. She exited her car and walked into the building, and he left.
He denied touching her.
Defendant is a seventy-one year old man who holds an engineer's license in the State of New Jersey and a captain's license with the U.S. Coast Guard. He has no history of domestic violence, and plaintiff acknowledged that, prior to this event, there had never been any domestic violence between the parties. The trial court found that both parties were "decent human beings" and expressly noted that defendant presented himself as "a professional, well-mannered, [and] well-spoken individual" and a person who "has his act together." The trial court found that defendant "exercised bad judgment which I do not think is his character."
The trial court accepted plaintiff's version of events. The trial court found that defendant "did not use good judgment" on the day in question, and determined that by waiting for plaintiff in the parking lot after being asked to leave, defendant was engaging in harassment, since he knew plaintiff did not want him there. The trial court also found that defendant had touched plaintiff. Because this was an unpermitted touching, the trial court found that it constituted domestic violence.
Our review is limited, since we may not overturn the factual findings and legal conclusions of the trial court unless we are "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In a case in which the evidence is largely testimonial, we must give special deference to the factual findings of the trial court since it is better able to determine the credibility of the witnesses due to its opportunity to hear and observe their testimony. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Further, we must accord deference to the family court's findings of fact due to its special expertise in this kind of litigation. Id. at 412-13.
Accordingly, we accept the trial court's finding that the events occurred as described by plaintiff. Nevertheless, we do not find that those facts, as found by the trial court under the circumstances present and when viewed in the context of the relationship of the parties, constituted domestic violence within the meaning of the law.
Since the parties had once lived together in the same household, plaintiff was entitled to the protections of the New Jersey Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 (the Act). N.J.S.A. 2C:25-19(d). The Act defines domestic violence as conduct that would constitute an offense under certain specified sections of Title 2C. Id. at 2C:25-19(a). The Act provides that harassment, as defined in N.J.S.A. 2C:33-4, constitutes domestic violence when inflicted upon a person protected by the Act. Id. at 2C:25-19(a)(13). In this case, plaintiff asserted in her domestic violence complaint that defendant had harassed her. As a result, defendant's conduct must meet the legal definition of harassment, as defined in N.J.S.A. 2C:33-4, in order to constitute domestic violence.
Harassment is defined in N.J.S.A. 2C:33-4 as:
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;
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.
Plaintiff contends that defendant's conduct in this case falls within both subsections (a) and (b) noted above.
In considering whether conduct constitutes harassment for the purposes of finding domestic violence, the court should consider "the totality of the circumstances" and whether there has been domestic violence between the parties in the past. Cesare v. Cesare, supra, 154 N.J. at 404-05. When considering whether the conduct of the defendant is likely to cause annoyance of alarm, the court must consider the relationship of the parties and the past conduct of the defendant to plaintiff. State v. Hoffman, 149 N.J. 564, 585 (1997).
The harassment statute requires that the defendant commit an act with the "purpose to harass another." N.J.S.A. 2C:33-4. Purposely is defined in this way:
A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.
"A finding of a purpose to harass may be inferred from the evidence presented. Common sense and experience may inform that determination." State v. Hoffman, supra, 149 N.J. at 577 (citations omitted). Plaintiff must show that defendant acted purposely, intending to harass her. E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990) (stating that the establishment of the element of purpose to harass is "integral to a finding of harassment"). However, a plaintiff's "reaction to defendant's efforts at communication does not supply a basis to infer that [defendant's] purpose was to harass [plaintiff]." Bresocnik v. Gallegos, 367 N.J. Super. 178, 183 (App. Div. 2004).
The facts here do not support a finding that defendant harassed plaintiff under N.J.S.A. 2C:33-4(a). His communication or attempt to communicate with plaintiff was not done anonymously, nor at an extremely inconvenient hour, nor did he use offensively coarse language. The facts do not support a finding that his communication was in "any other manner likely to cause annoyance or alarm." "Annoyance" as used in this subsection means to "disturb, irritate or bother." State v. Hoffman, supra, 149 N.J. at 580. This "catch all" provision of subsection (a) "should generally be interpreted to apply to modes of communicative harassment that intrude into an individual's 'legitimate expectation of privacy.'" Id. at 583. Here, defendant went to speak to plaintiff in a public parking lot, not a place where she had a "legitimate expectation of privacy."
In addition, the facts do not support a finding that defendant intended to harass plaintiff by attempting to talk to her in the parking lot, nor did the court expressly make such a finding. Rather, the evidence shows that he merely wanted to talk to her about the relationship. Indeed, in its oral opinion, the trial court stated:
[Defendant] may not have meant it. If all he did was go there, asked her, let's talk, I want to straighten this out, whether straighten out means the furniture, whatever it may mean, he did not leave the parking lot. That is where I have a problem. That is where I find harassment. There was no intent. Nothing could have been resolved.
No good purpose could have been found. He already knew she did not want him there. He did not use his good judgment.
The sole fact that speech is annoying does not make it harassing. Bresocnik v. Gallegos, supra, 367 N.J. Super. at 182-83. Defendant's attempt to communicate with plaintiff one evening by first going to her place of business and then waiting for her in the parking lot for fifteen minutes, even when he knew that she was "cold" and did not want to talk to him, does not constitute harassment within the meaning of N.J.S.A. 2C:33-4(a).
The facts also do not support a finding that defendant committed an act of harassment under N.J.S.A. 2C:33-4(b) by subjecting plaintiff to "striking, kicking, shoving, or other offensive touching, or threaten[ing] to do so." The harassment alleged in this case involves a single incident when defendant sought to speak to plaintiff and, as the trial court found, engaged in an unwanted touching. The touching of plaintiff's arm did not cause any injury or pain. The Domestic Violence Act is designed "to address matters of consequence." Bresocnik v. Gallegos, supra, 367 N.J. Super. at 183. Further, while a single egregious act may constitute domestic violence, domestic violence ordinarily involves "more than an isolated aberrant act." Ibid. Here, the relationship of the parties has no history of domestic violence, nor was this an egregious incident of touching.
Additionally, the evidence does not support a finding that this unpermitted touching, when viewed in the context of the relationship of the parties, was done with an intent to harass, nor did the trial court make such a finding. The trial court based its finding of harassment under 2C:33-4(b) solely on the fact that there was an unpermitted touching, without making any finding of intent to harass, stating: "[e]ven if it was brief, even if it was only for a minute, you are not permitted to touch another person. I do find he put his hands on her and that . . . is harassment." However, for the touching to constitute harassment and domestic violence, it must have been done purposely with the intent to harass, N.J.S.A. 2C:33-4, which was not shown here.
For all of the reasons set forth above, this record does not support a finding of domestic violence within the meaning of the Act.