May 12, 2008
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-219-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 29, 2008
Before Judges Fuentes and Grall.
Defendant R.A.C. appeals from a grant of a final restraining order entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The plaintiff is A.G. The parties had a dating relationship. Because the record does not support a finding of domestic violence, we reverse.
The following facts were elicited at the final hearing by the trial judge, who asked defendant if he admitted that he did the things alleged in plaintiff's complaint. Defendant told the judge that he could admit to the allegations "partially." The judge then questioned defendant, who, in response, provided the information set forth below.
Plaintiff and defendant dated for one and one-half years before plaintiff ended their relationship. During a conversation near the time of the break-up, defendant punched plaintiff's house. He also called her home at least once a week and told her that he knew where she had been and who she was with. He admitted that he made the calls to annoy plaintiff.
On July 29, 2007, after he had a new girlfriend, defendant drove by plaintiff's home at approximately 7:00 p.m. As defendant drove by he screamed and blasted his car radio. His new girlfriend was with him. They stopped at a convenience store nearby to get "stuff" to bring to the movies.
After questioning defendant, the judge asked plaintiff if she was annoyed by the calls defendant placed after they broke up. She said she was. She also responded in the affirmative when the judge asked her if she was seriously annoyed and wanted her privacy. When the judge asked plaintiff if she believed that defendant would continue to make the calls and annoy, harass and bother her if a restraining order were not entered, plaintiff said yes. When asked why she held that belief, plaintiff gave this response: "Because he -- we broke up in May, and he's done it ever since. He stopped about a week ago." When asked, plaintiff also acknowledged that she believed defendant was doing these acts to intentionally bother her.
Based on defendant's admissions, the trial judge found that defendant drove by plaintiff's home screaming and with his radio blaring. He also found that for four weeks, once a week, defendant had called plaintiff, and, with the purpose to bother and annoy her, told her that he knew where she had been and who she was with. The judge concluded: the "repeated and continuous calls" were made with "the purpose and design to seriously annoy and alarm"; plaintiff was seriously annoyed and bothered; and defendant's "juvenile" behavior would continue if a restraining order was not entered.
We are bound by the judge's evaluation of the credibility of the witnesses and factual findings that are supported by "adequate, substantial, credible evidence." See Cesare v. Cesare, 154 N.J. 394, 412 (1998). In this case, however, the evidence does not support a finding of the elements necessary to establish harassment as defined in N.J.S.A. 2C:33-4a.
The trial judge's finding of harassment is based on four telephone calls made over a four-week period that commenced after the parties ended their dating relationship. Not every communication made with a purpose to annoy amounts to harassment. Where an allegation of harassment is based on communication, the communication must be made "anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm."
N.J.S.A. 2C:33-4a. The focus must be "on the mode of speech employed." State v. Hoffman, 149 N.J. 564, 583 (1997). "Speech that does not invade one's privacy by its anonymity, offensive coarseness, or extreme inconvenience does not lose constitutional protection even when it is annoying." Id. at 583-84. "[T]he Legislature did not intend to criminalize communications . . . that are made in inoffensive language, at convenient hours, or in the communicator's own name." Id. at 584.
There is no evidence that any of these calls involved offensively coarse language, were made anonymously, placed at inconvenient hours or in a manner that otherwise intruded upon plaintiff's privacy. Nor is there any evidence that, in the context of this dating relationship or due to a history of domestic violence, this communication was sufficiently intrusive upon plaintiff's privacy to permit a finding that the mode of communication was of the sort covered by subsection a of N.J.S.A. 2C:33-4.
Although not necessary to our decision, comment on the procedure employed is warranted. We understand the demands on judges who hear domestic violence cases and the need for them to question the parties to elicit relevant information from litigants who appear pro se. Nonetheless, care must be taken to avoid unnecessarily leading questions on central issues and to afford a defendant his or her right to have the plaintiff establish conduct that satisfies the elements of one of the enumerated offenses covered by the PDVA. See N.J.S.A. 2C:25-19a(1)-(14).
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