August 22, 2008
ASHLEY K. COVERT, PLAINTIFF-RESPONDENT,
MICHAEL C. COVERT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-05-155-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 12, 2008
Before Judges Sapp-Peterson and Baxter.
Defendant Michael C. Covert appeals from a September 12, 2007 order that granted the request of plaintiff Ashley K. Covert, his ex-wife, for a domestic violence Final Restraining Order (FRO). We reverse.
The parties were divorced in May 2007. The divorce decree designated plaintiff as the parent of primary residence. The parties agreed that their two children would spend June 20 to August 31, 2007, with defendant. Plaintiff testified that on August 27, 2007, she received an irate telephone call from defendant's mother. According to plaintiff, her former mother-in-law "was screaming at me with [defendant] in the background screaming and hollering, because they just learned about [a] warrant . . . that had [been] issued on him for non-payment of child support." According to plaintiff's testimony, "the conversation ended [with] 'you just caused yourself a whole lot of trouble.'"
Plaintiff stated that she was so alarmed by the conduct of defendant and his mother that when she drove to defendant's mother's home in Mahwah to pick up her children on August 31 at the end of defendant's agreed-upon parenting time, she asked the Mahwah police department to accompany her. She explained that she was "afraid to go up by [her]self [and] did not know what was going to happen." When plaintiff arrived to pick up the children, defendant was not present, but she was able to pick up the children from her former mother-in-law.
After plaintiff arrived at her home in Villas in Cape May County after picking up the children in Mahwah, she observed defendant drive past her house three times. According to her testimony, on each of those three occasions defendant "hollered out the window 'you're going to pay.'" She then called police and filed a complaint for harassment and sought a temporary restraining order (TRO). A municipal court judge granted the TRO that night. Plaintiff had filed one prior domestic violence complaint a few years earlier, but the judge dismissed her complaint and declined the request for a TRO because the proofs were insufficient. Consequently, there was no prior history of domestic violence.
The only other witness to testify at the hearing was defendant. He stated that he drove to Cape May County from Maine where he was then working as soon as his mother informed him that a warrant had been issued against him for non-payment of child support. A receipt from the Cape May County Probation Department was admitted in evidence showing that on the day in question, August 31, 2007, defendant paid $910 and the warrant was vacated. He testified that plaintiff had earlier assured him that she would request the Probation Department to hold his child support obligation in abeyance during the period from June 20 through August 31 while his children were living with him. He explained that when he learned that plaintiff had reneged on that promise and that a warrant had issued, he drove down from Maine to Cape May to satisfy the warrant. He insisted that his sole purpose in driving to Cape May County was to satisfy the warrant.
In his testimony, he acknowledged driving by plaintiff's home three times after he left the Probation Department. He explained that he did so at the request of his mother to see "who all came to take the children." He explained that he and his mother were concerned about the poor driving habits of plaintiff's fiancé, whom defendant knew because the fiancé was defendant's former employee. According to defendant, he drove by plaintiff's house because he "wanted to know when the kids were going to get home" and wanted to find out whether plaintiff had driven the children from Mahwah to Villas or instead if her fiancé had done so. He denied yelling anything out his car window and insisted that his sole purpose for driving by the house that day was "just the well-being of [his] children."
At the conclusion of the testimony, the judge found that defendant drove by plaintiff's home on three occasions on August 31, 2007, for the purpose of harassing plaintiff. Accordingly, the judge granted plaintiff's request for the FRO. The judge reasoned:
Defendant says that yes he did drive by the house. However, he was checking on his kids and the reason he drove to the shore in the first place was to pay the child support warrant. Plaintiff indicates that [on] the [three] occasions that she witnessed him drive by, that he shouted you will pay or something to that [e]ffect. . . . I've got a factual issue to resolve whether it happened as the plaintiff indicated. The drive-bys are conceded by the defendant, but . . . he says that he came down to check on his kids. In my view, it doesn't ring true and that's true for a couple of reasons. Number one, the plaintiff indicates that the gentleman who was causing [defendant] concern, her fiancé, didn't go with her to pick up the kids. I believe that could have been resolved [by defendant] with a conversation with his mother, who was at the home in Mahwah. Or even assuming that he didn't know or couldn't have known that [by telephoning his mother], driving by . . . is a very poor way to check on your children. Defendant argues that even if [the court] resolve[s] the factual testimony in the plaintiff's favor, that Peranio [v. Peranio, 280 N.J. Super. 47 (App. Div. 1995)] and other cases . . . teach that domestic contretemps, [which is] people fussing and fighting, that that's not . . . domestic violence under the Act. That the law assumes . . . that there [are] going to be arguments where voices are raised and names are called. But given the distance that [defendant] had to travel, I can't make a finding that it simply happened in the heat of the moment during an argument. I find that he came down because he was angry over that child support warrant and that he made a deliberate attempt to annoy or alarm and that's harassment and that entitles [plaintiff] to a Final Restraining Order.
On appeal, defendant argues that the trial judge erred when he found that defendant committed an act of domestic violence. In particular, defendant maintains that the judge erred by: 1) ignoring the undisputed evidence that defendant's purpose in driving to Cape May County was to satisfy the outstanding child support warrant and satisfy himself that plaintiff's fiancé, who had a poor driving record, was not driving the parties' children; and 2) failing to apply Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995), and Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995). Both cases hold that the acrimonious and mildly threatening remarks that divorced parties sometimes utter to one another in moments of frustration are "ordinary domestic contretemps," Corrente, supra, 281 N.J. Super. at 250, and are not the type of serious abuse that the domestic violence statutes were enacted to address. We reject defendant's first argument because we conclude that the judge's findings of fact were based on substantial and credible evidence in the record; however, we agree with defendant's second argument.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).
A plaintiff seeking a FRO under the Prevention of Domestic Violence Act (Act)*fn1 must establish that the defendant committed an act of domestic violence. The Act defines domestic violence as the commission of any one of the thirteen crimes and offenses that are enumerated in N.J.S.A. 2C:25-19(a). Harassment, N.J.S.A. 2C:33-4, is among the thirteen predicate offenses that, if proven, entitles a plaintiff to the entry of a FRO. N.J.S.A. 2C:25-19(a)(13).
The offense of harassment, which was the alleged underlying offense here, is committed when a person, with the purpose of harassing another, "makes . . . a communication . . . in . . . any other manner likely to cause annoyance or alarm" or "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. In order for a court to find that a defendant committed an act of harassment as proscribed by that statute, the court must find that the person had a "conscious objective" to harass the plaintiff. State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).
We turn first to defendant's argument that the judge erred when he found that defendant committed an act of domestic violence. Defendant's principal argument is that the judge ignored the un-refuted testimony that defendant drove to Cape May County in order to satisfy the warrant. While we agree with defendant that the judge did not specifically make reference in his findings to defendant's visit to the Probation Department to satisfy the outstanding child support warrant, we conclude that ultimately the judge properly focused on defendant's reasons for driving by plaintiff's home. Regardless of whether or not defendant's original purpose in driving to Cape May County was to satisfy the warrant, it is beyond dispute that after he did so, he drove to plaintiff's home on three separate occasions. Thus, the judge properly focused his attention on defendant's purpose for doing so. Stated differently, even if defendant's purpose in driving to Cape May County originated with the benign purpose of satisfying his outstanding child support, a person's intentions can then shift to a different purpose. It was that allegation of an impermissible purpose to which the judge then shifted his attention.
The judge was required to resolve the factual dispute of whether defendant drove by plaintiff's house on three occasions in a two-hour period solely to check on his children's well-being as he claimed or whether, instead, as plaintiff claims, he did so for the purpose of harassing her. The judge had the opportunity to hear and observe both parties and to evaluate their credibility. After doing so, he chose to believe plaintiff's account and to reject defendant's. In so doing, he credited plaintiff's testimony about the telephone conversation on August 27, 2007, when defendant angrily said "you just caused yourself a whole lot of trouble." Cesare requires us to defer to the fact-finding expertise of Family Part judges and discourages us from disregarding a judge's findings in domestic violence cases such as this. Cesare, supra, 154 N.J. at 411-12. We have been presented with no meritorious basis upon which to disturb the judge's finding that plaintiff's proofs demonstrated that defendant repeatedly drove by her house on three occasions and yelled words to the effect of "you're going to pay."
In so concluding, we remain mindful that "[b]ecause a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating" the testimony of witnesses. Id. at 412 (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Accordingly, we find meritless defendant's argument that the judge erred when he rejected defendant's explanation for why he drove by plaintiff's home and disbelieved defendant's statement that he did not yell anything out the window.
We turn next to defendant's argument that even if we were to accept the judge's findings of fact and thereby conclude that defendant drove past plaintiff's home three times and made the disputed remark, such conduct is the type of "domestic contretemps" that we held in Peranio, supra, and Corrente, supra, does not constitute acts of domestic violence. Defendant argues that the remark attributed to him, "you're going to pay," was far less serious than the defendant's statement to his wife in Peranio that he would "bury her," 280 N.J. Super. at 50, or than the defendant's statement in Corrente that he would take "drastic measures" if the plaintiff did not produce the money she owed him, 281 N.J. Super. at 250. We agree. We do not find fault with the judge's observation that unlike the defendants in Peranio and Corrente, who made their remarks impulsively during the course of a heated argument, here defendant did not act "simply in the heat of the moment" in light of "the distance he had to travel" from Maine to Cape May County.
Nonetheless, we conclude that defendant's remarks here, though immature, distasteful and unwarranted, were not akin to the "regular serious abuse" that the Legislature intended to prohibit when it enacted the domestic violence law. Like the defendant in Peranio, who became irritated because his estranged wife discarded his belongings, defendant was irritated by plaintiff's conduct because plaintiff reneged on her commitment to have Probation suspend his child support obligation while the children were with him for the summer. As the judge observed, once the warrant was issued, defendant no doubt viewed plaintiff's conduct as a "dirty trick" that caused him to become angry and engage in the conduct we have described.
Nonetheless, as we observed in Peranio, not every emotional outburst by a divorced spouse should be treated as domestic violence even if the conduct satisfies the statutory definition of harassment under N.J.S.A. 2C:33-4. Peranio, supra, 280 N.J. Super. at 54. As we held in Peranio:
[I]t is clear that the drafters of the law did not intend that the commission of any one of these acts automatically would warrant the issuance of a domestic violence order. The law mandates that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of violence between the parties including previous threats, harassment and physical abuse, and in light of whether immediate danger to person or property is present. N.J.S.A. 2C:25-29a(1) and (2).
This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened.
This is the backdrop on which plaintiff's claim that defendant committed domestic violence when he said "I'll bury you" must be evaluated. [Ibid.]
We observed in Peranio that during the course of an argument, the defendant became annoyed and said "I'll bury you," which "upset and alarmed" the plaintiff. Id. at 56. We ultimately concluded that the defendant's conduct, albeit "no model," ibid, did not warrant the application of the domestic violence law because doing so would "diminish the suffering of true victims of domestic violence," ibid, those who are subjected to "a pattern of abusive and controlling behavior." Id. at 52. We held that the "dissolution of a marriage is rarely a happy event" and "even the most rational are hard pressed to avoid any emotional encounters." Id. at 56. Consequently, we held that the trial judge's application of the domestic violence law, which "was intended to address matters of consequence, not ordinary domestic contretemps," id. at 57, such as the defendant's "I'll bury you" remark, was a "misapplication of the domestic violence law." Ibid.
The same is true here. While we do not condone defendant's behavior, we recognize that only a person with enormous and indeed unusual self-control would have remained unfazed by the "dirty trick" plaintiff engaged in concerning the warrant. We note that she never disputed defendant's contentions on that subject. While we would have preferred defendant to have refrained from the outburst on the telephone and his remarks while driving past her house that she was "going to pay," we nonetheless conclude that the judge erred when he equated this conduct with the "regular serious abuse," Corrente, supra, 281 N.J. Super. at 247, that the domestic violence law is designed to prevent. As in Corrente, "during an argument, tempers flared and defendant threatened drastic measures." Id. at 250. For the same reasons that we concluded that the defendant there had not engaged in domestic violence, we do so here as well.
That conclusion is strengthened by our determination that the judge erred when he considered defendant's conduct in a vacuum. Cesare requires a judge to evaluate alleged harassment through the prism of the entire past history of the parties' relationship. Cesare, supra, 154 N.J. at 402. The Court held that "'acts claimed by a plaintiff to be domestic violence [must] be evaluated in light of the previous history of violence between the parties.' Although a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis." Ibid. (quoting Peranio, supra, 280 N.J. Super. at 54). Here, where defendant's conduct was certainly suggestive of the type of "domestic contretemps" that does not constitute domestic violence, the judge erred when he failed to consider that there had been no finding of violence in the past. See ibid. That omission contributed to the erroneous result reached here. Nor did the judge ever find, as required by the Act, that the entry of a FRO was required for plaintiff's safety. N.J.S.A. 2C:25-29(b).
The entry of a FRO subjects a defendant to an array of potential consequences, some of which are potentially quite onerous, including requirements of supervised parenting time, submitting to psychological testing, facing the potential loss of parenting time, forcing a defendant to resort to filing visitation motions rather than being permitted to participate in mediation, having one's name placed on the domestic violence registry, and barring a defendant from telephoning his former spouse or partner to request even the most trivial changes in parenting time. Of course, one of the most severe penalties, not applicable here because the parties are already divorced and reside separately, is being forced to vacate one's home and live elsewhere. The judge erred when he concluded that defendant's conduct amounted to an act of domestic violence that should subject him to such potential consequences.