On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Atlantic County, Docket No. FV-01-53-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Defendant Abdelkrim Fadel appeals from a final domestic violence restraining order entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, that bars him from plaintiff's residence and prohibits any contact or communication with plaintiff. Defendant argues that his statement did not constitute domestic violence. We affirm.
Plaintiff Marcy L. Fadel and defendant married in 1994; two children were born of the marriage. The parties separated; defendant remained in the marital home and cared for the children.
On July 2, 2007, two telephone conversations occurred between the parties between 8:00 a.m. and 8:20 a.m. We discern from the record that defendant believed he had proof plaintiff was seeing a married man, at least one of the children had been in the man's presence, and defendant objected to that. Plaintiff placed the first telephone call. Defendant told her their daughter was in the car, and he would call plaintiff when he dropped the girl at a farm and did so. Plaintiff testified that the conversation was laced with obscenities and that defendant threatened to kill plaintiff. She acknowledged that there was no prior history of physical violence or threats of physical violence. She stated that defendant had verbally abused her in the past. Defendant testified that the exchange of obscenities was mutual. He acknowledged that he was angry during the call. He denied threatening to kill her. He admitted that he stated "he had nothing to lose." He explained that he had proof that plaintiff was seeing a married man, that she had introduced their children to the man, and that he intended to produce his proof to a judge in a divorce proceeding.
The judge hearing plaintiff's application for a restraining order found that defendant's conduct constituted harassment. He found that defendant was angry at his wife, that he called her a "whore," a "stupid motherfucker," and a "fucking whore," and stated "he was going to fucking kill her." The judge also found that defendant "made communications in offensively coarse language and in a manner likely to cause annoyance or alarm, which he knew would cause annoyance or alarm." The judge found this conduct met the requirements of harassment pursuant to N.J.S.A. 2C:33-4.
A prior history of domestic violence provides context to the individual case. Cesare v. Cesare, 154 N.J. 394, 402 (1998); State v. Hoffman, 149 N.J. 565, 585 (1997). It may allow an otherwise neutral statement to be considered an act of domestic violence. Cesare, supra, 154 N.J. at 402; Hoffman, supra, 149 N.J. at 585. A prior history of domestic violence is not, however, a prerequisite to a finding that conduct may be considered an act of domestic violence. Cesare, supra, 154 N.J. at 402.
When the conduct that is the subject of the domestic violence complaint is founded on statements containing coarse or physically threatening language uttered in an agitated manner, in the course of an argument between an estranged couple, care must be taken to make sure that the exchange qualifies as an act of domestic violence. Stated differently, not every angry and hurtful exchange, even an exchange laced with obscenities uttered during the dissolution of a romantic relationship, qualifies as an act of domestic violence. Compare Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995) (finding defendant's threat of "drastic measures" during an argument with his estranged wife and defendant's causing the telephone service at his wife's home to be shut off fell short of the domestic violence statutory standard); Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995) (finding defendant's statement "I'll bury you" to plaintiff insufficient as a matter of law to meet the statutory standard for domestic violence); with D.V. v. A.H., 394 N.J. Super. 388, 392-93 (Ch. Div. 2007) (finding telephone calls to sister-in-law in offensively coarse language at inconvenient hours causing her alarm a factual predicate for a final restraining order); Roe v. Roe, 253 N.J. Super. 418, 422-23 (App. Div. 1992) (finding defendant's threat during a heated argument to kill or have plaintiff spouse killed sufficient to constitute an act of domestic violence).
Here, we are satisfied that the remarks contained coarse and offensive language, were uttered with the purpose to harass plaintiff, and were designed to, and succeeded in, causing annoyance and alarm to plaintiff. We, therefore, affirm the July 12, 2007 final restraining order.