June 12, 2008
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-856-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 20, 2008
Before Judges Coburn, Grall and Chambers.
Defendant S.K. appeals from a final restraining order entered in favor of his wife, plaintiff C.K., pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm substantially for the reasons stated by Judge Dilts in his oral opinion of May 31, 2007.
C.K. has two daughters born of a prior marriage, and C.K. and S.K. have one son. C.K. filed a domestic violence complaint alleging that S.K. engaged in a course of conduct amounting to harassment. She claimed the following: on May 9, 2007, defendant threw a bowl at one of her daughters and told the child that he would throw her out the window; on April 21, 2007, S.K. called C.K. an offensive name ten times; since C.K. asked for a divorce, S.K. sent her messages stating the he would "open up a whole new can of whoop-ass." C.K. also alleged that on May 3, 2007, defendant told her daughter that he would defecate on her belongings.
Plaintiff testified about each of the allegations. In her presence and during a discussion about the divorce C.K. wanted, S.K. tossed a plastic cereal bowl to her daughter, which hit the child in the leg. When the child threw the bowl back at S.K., S.K. told the child he would throw her out of the window if she did it again. C.K. was also present when one of her daughters spoke to S.K. about eating bananas that she and C.K. had purchased for the child's half-brother. Yelling and screaming, S.K. told the child that the house and everything in it was his and that he could do what he wanted in it including going into her room and defecating on her "stuff." S.K. also told C.K. in an argument, apparently by text message, that he would open "a whole new can of whoop ass." On another occasion, S.K. left the house after an argument. Although their neighbor was outside gardening, S.K. dropped his pants and exposed his buttocks to C.K.
C.K. also testified about a history of domestic assaults. On two prior occasions, she had obtained and later dismissed temporary restraining orders. During an argument in October 2004, S.K. struck C.K. in the face and her lip swelled as a consequence. During an argument on May 2005, S.K. threw C.K. to the floor, knelt over her and choked her for a time sufficient to effect her breathing. After that incident, S.K. agreed to attend and did attend an anger management program.
C.K. explained why she sought a restraining order based on S.K.'s recent conduct: "I know what he's capable of and . . . what happens when things don't verbally go his way. They do get physical. They have gotten physical. And I didn't want to wait for that to happen again."
Judge Dilts credited C.K.'s testimony. He considered whether the present allegations, viewed in the context of the prior assaults, constituted a "course of alarming conduct intended by the defendant to annoy or alarm [C.K.]" Judge Dilts recognized his obligation to consider whether C.K., desirous of a divorce, might be attempting to use the PDVA as a sword rather than a shield. Cesare v. Cesare, 154 N.J. 394, 416 (1998). He concluded, however, that C.K. had established that S.K.'s bowl tossing and threatening remarks about his authority over their house, its contents and the presence of C.K.'s children were intended to make it clear to C.K. "that he was able to control the situation." On that basis, Judge Dilts inferred S.K.'s intention was to harass and annoy C.K. He also found that given the history of domestic violence in this case, C.K. was not required to wait until she was hit again to obtain the protection afforded by the PDVA.
The scope of appellate review of a trial court's findings in a domestic violence case is limited. Cesare, supra, 154 N.J. at 411-12. We must defer to the expertise of the judges of the Family Part and accept their findings that are supported by the record and their determinations about the credibility of witnesses. Id. at 412. Even if the judge could have specified his or her findings relevant to the elements of the predicate act of domestic violence more clearly, so long as "there was sufficient, credible evidence for the trial court to have found that defendant committed an act of domestic violence," this court should sustain the trial judge's conclusion. Id. at 413 (affirming a decision, which had been reversed by this court, in which the judge had not specified whether the predicate act was harassment or terroristic threats).
In this case the act of domestic violence found was harassment based on a course "of alarming conduct or repeatedly committed acts with purpose to alarm or seriously annoy . . . ." N.J.S.A. 2C:33-4c. As with all forms of harassment, the actor must have a "purpose to harass" the victim. N.J.S.A. 2C:33-4. The actor also must have the purpose to "seriously annoy" by engaging in the course of alarming conduct. N.J.S.A. 2C:33-4c. "Serious annoyance" means "to weary, worry, trouble, or offend," and the determination whether the actor's conduct and purpose meet that standard "must be made on a case-by-case basis." State v. Hoffman, 149 N.J. 564, 580-81 (1997).
Plaintiff's testimony, which Judge Dilts found credible, and the reasonable inferences it provided were more than adequate to establish that S.K., with purpose to harass, weary, worry, trouble and offend C.K., embarked on a course of conduct that would be alarming to a reasonable person in her situation, which included a history of domestic assaults by S.K. The alarming conduct about which C.K. testified included implied threats of property damage and further violence. See Cesare, supra, 154 N.J. at 415-16 (distinguishing the facts of that case involving an ambiguous threat from other cases involving similar statements on the basis of a history of domestic violence).
S.K. relies on this court's decision in E.K. v. G.K., 241 N.J. Super. 567, 571 (App. Div. 1990), for the proposition that he cannot be found to have harassed C.K. based on his treatment of her children, but E.K. is distinguishable on its facts. In E.K. we concluded that the record did not establish and the judge had not determined that G.K. injured E.K.'s child in order to harass E.K. Ibid. In this case, Judge Dilts found that the aggressive conduct and statements that S.K. directed at his step-daughters were intended to harass and annoy C.K., who was present. That intention was reasonably inferable from C.K.'s testimony. Cf. M.A. v. E.A., 388 N.J. Super. 612, 619 (App. Div. 2006) (noting that there was no evidence "to suggest that defendant assaulted [the child] for the purpose of 'alarming' [the child's] mother"). Although the judge did not specifically state that S.K. intended to cause the "serious" annoyance required for this form of harassment, he noted that S.K. minimized his conduct and its impact. Because the requisite elements of harassment are supported by the record, this court should affirm. See Cesare, supra, 154 N.J. at 413.
S.K. also argues that the judge erred in concluding that a restraining order was necessary to prevent further abuse. See Silver v. Silver, 387 N.J. Super. 112, 126-28 (App. Div. 2006). Given the history of domestic violence in this case, the argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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