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Gundersen v. Svenningsen


July 11, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, iddlesex County, FV-12-001200-07.

Per curiam.



Argued February 26, 2008

Before Judges Fuentes, Grall and Chambers.

In this domestic violence case, plaintiff Sonja Gundersen appeals from the denial of the restraining order she sought against her father, defendant William Svenningsen. Since the conduct of defendant did not amount to domestic violence within the meaning of the applicable statute, we affirm.

Plaintiff, then twenty-six years old, filed a domestic violence complaint on December 7, 2006, against her father, defendant William Svenningsen, due to an incident that occurred on October 15, 2006. A temporary restraining order was issued on that date. A plenary hearing was held on December 15, 2006, and the trial court denied plaintiff's application for a permanent restraining order. Plaintiff thereafter moved for reconsideration, and that motion was denied on January 19, 2007.

At the time of the incident of October 15, 2006, plaintiff and her husband were living in one unit of a three-family house owned by her parents. Plaintiff's parents were going through a bitter divorce, and a few months earlier, in May 2006, defendant moved out of the marital home located elsewhere and began living in a unit in the three-family house. Plaintiff testified at the plenary hearing that on the day of the incident, when she pulled into her parking spot, she accidentally ran over her cat transfer cage because it was not in its usual spot. Plaintiff contends that her father came out of the laundry room yelling and screaming, that he put his knees on the bumper of her car, and that he continued to yell at her saying such things as "come on, run me over," and "hit me." She indicated that he was "crazed" and suggested that he was intoxicated. He then left. Plaintiff's husband was present during the incident.

Defendant's version of the confrontation is somewhat different. He indicated that the incident was provoked by plaintiff. He testified that on the evening in question, when he was doing the laundry, he tripped over the cat transfer cage and kicked it. As he was leaving the laundry room, plaintiff's car had pulled up, and she made an obscene gesture at him. While he could not hear her, he could see that she was talking. He then started talking; she raised her voice and made another obscene gesture; he acknowledged saying in a raised voice a number of times "why don't you hit me." He denied touching her vehicle. Defendant denied plaintiff's assertion that he was intoxicated at the time, although he acknowledged having a few beers. Defendant presented evidence of newspaper wrappings of dog feces left by the common entrance to the house and photographs of the laundry room which he shared with plaintiff, demonstrating that plaintiff's side of the laundry room was in a messy condition.

In the approximately six months that her father had lived in the three-family house prior to this incident, plaintiff had had only one other confrontation with him. It arose when she told him not to use her water hose, and he responded by yelling at her and stating that the hose was his. Plaintiff also complained that after her father moved into the three-family house, he had damaged landscaping she had placed in the common area around the house (he testified that he cut down a tree in the common area because it was a hazard to the house during storms), that he had once entered her apartment to tell her to move her car, and that he regularly consumed alcohol. While plaintiff also complained that a ladder had been put up to her window in the three-family house after she moved out,*fn1 the trial court found that it was put there temporarily to install a light.

Plaintiff testified that she was fearful of her father when he moved into the three-family house, because he was difficult when she was growing up. He would become mad and upset, and he would drink. Indeed, the trial judge, who heard testimony from both parents, and all three children, including plaintiff, found the family "seriously dysfunctional."

Plaintiff had moved out of her parents' home eight years earlier in 1998, when she was eighteen years old, due to a physical confrontation with her father. She testified that she moved out because her father had struck her and kicked her at the time, causing her to bleed. The trial court however, expressly found that the father had done nothing to cause her to bleed. The father testified that he had grabbed her hands, pulled her to the floor, sat on her, and told her that if she continued to be disrespectful, she could move out, which she then did. The record indicates that the parties had a civil relationship at the time of plaintiff's wedding in 2005 and that defendant had a cordial relationship with plaintiff's husband.

The trial judge denied the application on two bases: first, that the relationship of an emancipated child and a parent who are living in separate households does not fall within the jurisdiction of the New Jersey Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 (the Act), and second, that defendant's conduct does not constitute domestic violence within the meaning of the Act.

On this latter issue, when deciding the motion for reconsideration, the trial judge explained that while plaintiff had a subjective fear of her father, any fear she had due to the October 15, 2006, incident was unreasonable. Further, he did not find that defendant's conduct was harassing, explaining "I do not know that someone standing in front of a car [saying] hit me . . . can be considered as threatening to the victim. Again, in objective terms, he is frankly asking himself to be harmed, not threatening to harm somebody else." The trial judge found that defendant was angry and frustrated and that he may well have been intoxicated, but the trial judge found no intent on the part of defendant to harass plaintiff.

In this appeal, plaintiff argues that since she once lived in defendant's household as his daughter, she is entitled to the protections of the Act under N.J.S.A. 2C:25-19(d), that the three-family house in this case constitutes "premises" for the purposes of N.J.S.A. 2C:25-28.1, and that defendant's conduct amounted to domestic violence as defined in N.J.S.A. 2C:25-19(a), since it constituted harassment.

Our review is limited, since we may not overturn the factual findings of the trial judge 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 findings of fact of the trial judge since he is better able to determine the credibility of the witnesses due to his opportunity to hear and observe the witnesses. 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.

We need not reach the more involved question of whether the relationship between plaintiff and defendant falls within the scope of the Act or the proper scope of a restraining order, because the trial judge correctly held that defendant's conduct does not constitute domestic violence under the circumstances here.

The Act defines domestic violence as conduct that would constitute an offense under certain specified sections of Title 2C. N.J.S.A. 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 appeal, plaintiff contends that defendant's conduct constitutes harassment.*fn2 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.

The statute defines harassment as follows:

[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;

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person. [N.J.S.A. 2C:33-4.]

The harassment statute expressly requires that the defendant 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.

[N.J.S.A. 2C:2-2(b)(1).]

The establishment of the element of purpose to harass is "integral to a finding of harassment." 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 may be based on common sense and experience. State v. Hoffman, 149 N.J. 564, 577 (1997). 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).

Further, when determining whether defendant has committed domestic violence, the trial court must evaluate plaintiff's claim in light of any previous history of domestic violence between the parties. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Specifically with respect to domestic violence claims based on harassment, "[i]n determining whether a defendant's conduct is likely to cause the required annoyance or alarm to the victim, that defendant's past conduct toward the victim and the relationship's history must be taken into account." Cesare v. Cesare, supra, 154 N.J. at 404-05 (quoting State v. Hoffman, supra, 149 N.J. at 585). In light of this law, we find no basis to overturn the trial court's decision that the conduct here did not constitute harassment within the meaning of the statute, N.J.S.A. 2C:33-4.

Despite plaintiff's efforts to show a history and pattern of problems with defendant, ever since she moved out of her parents' home eight years earlier, she has had no significant confrontations with her father prior to this incident other than the bitter divorce of her mother and father and the petty complaints described above. We note that the Domestic Violence Act is designed "to address matters of consequence." Bresocnik v. Gallegos, supra, 367 N.J. Super. at 183.

Plaintiff did not establish that defendant acted purposely to harass her, an essential element of her claim. Giving due regard to the trial judge's ability to determine the credibility of the witnesses, the record contains adequate evidence to support the trial judge's finding that defendant was merely upset, and that defendant's conduct that evening was not part of a past or continuing pattern of behavior that would constitute harassment.


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