July 28, 2008
KEVIN CREWS, PLAINTIFF-RESPONDENT,
JOANN HESSION, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-1687-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 1, 2008
Before Judges Cuff and Fuentes.
Defendant Joann Hession appeals from a final restraining order entered by the Family Part pursuant to the Prevention of Domestic Violence Act of 1991. N.J.S.A. 2C:25-17 to -35. The trial court found that defendant engaged in conduct against plaintiff that amounted to harassment, as that offense is defined in N.J.S.A. 2C:33-4. Defendant now appeals arguing that the court erred as a matter of law, because the evidence presented at trial did not establish that she acted with the requisite intent to harass plaintiff. We agree and reverse.
The parties had a dating relationship which ended in 1997. That relationship produced a child, a boy who is now eleven years old. Since the birth of their son, the parties have had numerous filings in the Family Part, primarily over issues concerning custody and parenting time. At trial, plaintiff testified that on May 21, 2007, the Family Part entered an order providing for defendant to have contacts with her son via telephone, everyday between 6:00 p.m. and 6:30 p.m. To facilitate this contact, defendant purchased a cellular telephone for her son to use during these calls.
According to defendant, plaintiff deliberately attempted to deny her access to her son by shutting off the cellular phone and refusing to pick up his house phone when defendant called as an alternative. On May 25, 2007, just four days after the entry of the court's telephonic contact order, plaintiff filed a domestic violence complaint against defendant alleging harassment. In the complaint, plaintiff alleged that defendant harassed him by sending e-mails to his co-workers and by "telephonically calling [him] at inconvenient hours."
At trial, plaintiff was unable to produce any competent evidence concerning the alleged e-mails to his co-workers.
Concerning the telephone calls, plaintiff was unable to state, with any degree of specificity, the times when defendant called him, or the language used during these calls. By way of example, when questioned by the court about whether defendant used any offensive language, plaintiff responded with vague generalities such as "putdowns . . . having her way . . . they are just annoying."
Against these facts, the trial court concluded that defendant had committed the predicate act of harassment. In so doing, the court framed the issue thusly: "[E]xamining the totality of the circumstances and past history in this matter, whether Mr. Crews has a legitimate reason to fear Ms. Henson." The court then went on to find that defendant, by making repeated telephone calls to plaintiff, had violated N.J.S.A. 2C:33-4.
We start our analysis by emphasizing that mere emotionally upsetting behavior and annoyance does not rise to the level of alarming or harassing conduct within the meaning of N.J.S.A. 2C:33-4. L.D. v. W.D., 327 N.J. Super. 1, 4-6 (App. Div. 1999). As defined by the Legislature, a person commits an act of harassment if with purpose to harass another, she:
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.
A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received. [N.J.S.A. 2C:33-4.]
Here, the trial court made no finding that defendant's purpose in making these calls was to harass plaintiff, rather than to inquire about her son's unavailability. Without such a finding, supported by competent evidence in the record, the court's bare conclusion that defendant's conduct amounted to harassment cannot stand. Chernesky v. Fedorczyk, 346 N.J. Super. 34, 39-40 (App. Div. 2001).
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