November 12, 2008
ERIC J. MUENCH, PLAINTIFF-RESPONDENT,
STEPHANIE R. FEIG, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-505-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2008
Before Judges Lihotz and Messano.
Defendant Stephanie Feig appeals from a domestic violence final restraining order (FRO) entered on October 22, 2007, and the subsequent order denying her motion for reconsideration entered on February 15, 2008. Defendant contends that the trial judge erred in issuing the FRO because "plaintiff provided no admissible evidence of harassment . . . and the only evidence against  [her] was based upon the court's questioning of [her]." Alternatively, defendant argues that the evidence, even if believed to be true, did not prove harassment, N.J.S.A. 2C:33-4, or "justify [the] issuance of a [FRO]." We have considered the arguments in light of the record and applicable legal standards. We reverse.
On October 18, 2007, plaintiff Eric Muench obtained a temporary restraining order (TRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act), from the West Windsor municipal court. In his complaint, plaintiff alleged that he and defendant had a "dating relationship" and previously resided together. He further claimed that on October 17, defendant went to his place of employment and "told his boss . . . that [plaintiff] had been stealing from him," and that this amounted to harassment, N.J.S.A. 2C:33-4.
On October 22, 2007, the parties appeared pro se before the trial judge who advised defendant that "collateral consequences [would] occur," including fingerprinting, registration in the domestic violence offender registry, and the payment of a civil penalty, if an FRO was issued. Defendant indicated she understood and denied the judge's specific offer to "speak to an attorney" before proceeding.
Plaintiff indicated that he had no witnesses other than himself, but that he had documents he wished to show the judge. However, the judge told plaintiff "that paperwork will not be accepted as evidence" without other witnesses who could properly authenticate it. She advised plaintiff not to "tell [me] what somebody else said to you[.]" The judge told defendant she could "offer testimony on [her] own behalf," but that "neither of you can offer . . . hearsay evidence or hearsay testimony as [I] will not accept it as evidence." The judge then questioned plaintiff.
He testified that he had been in a dating relationship with defendant from September 22, 2005 through June 11, 2007. He claimed that on October 17, 2007, defendant had a "meeting with [his] boss [and] accus[ed] [him] of stealing," and when asked how he knew of this, plaintiff replied, "I spoke to the boss." The judge reminded plaintiff not to "tell me what [the boss] said," and plaintiff acknowledged that defendant "did not speak to [him] directly[,]" and that he "did not physically see her." Plaintiff claimed that defendant "came to [his] office" because he had filed "charges" against her in Pennsylvania. He testified that defendant had "text messaged [him] two months [earlier], telling [him] that she was going to write a letter to the office accusing [him] of whatever." There was no evidence that defendant ever sent such a letter. Plaintiff testified that "[a]s of right now," nothing had occurred as a result of defendant's appearance at his office. This ended his testimony.
After defendant declined the opportunity to cross-examine plaintiff, the judge began to question her. Defendant testified that she called the president of plaintiff's company and "let him know that [she] had some merchandise of his" she "believed to be stolen." Defendant claimed the president asked her to come to his office and return the merchandise, a carbon monoxide detector. She told him that she was plaintiff's ex-fiancée and that the device came from plaintiff.
Defendant testified that she had the detector since February, and when asked by the judge why she waited until October to call the company president, she admitted that when "[plaintiff] accused me of stealing a check . . . I just felt like if he wanted to start causing problems, then, you know[,]" quickly adding that she just "wanted to return [the detector]."
The judge concluded that defendant had gone to plaintiff's place of employment "with the purpose to alarm and/or annoy  plaintiff, that being an act of harassment under [N.J.S.A.] 2C:33-4. As a consequence of this being an act of harassment under the statute, it becomes an act of domestic violence under the . . . statute." The judge entered the FRO and assessed a civil penalty of $250. N.J.S.A. 2C:25-29.1.
Defendant moved for reconsideration asserting the same arguments she now raises before us. After oral argument at which both parties were now represented by counsel, the judge denied defendant's request. This appeal followed.
Defendant contends first that plaintiff presented "no admissible evidence of harassment," and having "failed to meet his burden of proof," the judge should have dismissed the TRO after plaintiff testified and not have questioned defendant at all. Alternatively, even if all the testimony is accepted and believed, defendant contends that 1) she did not commit an act of harassment, the predicate offense upon which the FRO was based, or 2) her offense was so "inconsequential" that the FRO should not have been issued.
"Harassment" is one of the predicate offenses supporting a finding that an act of "domestic violence" has occurred. N.J.S.A. 2C:25-19a(13). In pertinent part, a person commits "harassment" if
[W]ith 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.
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.
The trial judge did not specify which particular subsection defendant had violated, however, she found that defendant had acted "with the purpose to alarm and/or annoy  plaintiff." Defendant contends that the judge implicitly found a violation of subsection (c) because she used the statutory language contained therein; in his opposition, plaintiff does not contend otherwise.
We begin by noting some general principles. "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). Moreover, "[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. "However, no special deference is accorded a trial judge's interpretation of the law." Connell v. Diehl, 397 N.J. Super. 477, 491 (App. Div.), certif. denied, 195 N.J. 518 (2008).
The issue for our consideration is purely a legal one. Assuming the judge found all the testimony presented by both sides to be true, did defendant commit harassment that, under the circumstances, warranted the issuance of the FRO? We have noted that "[i]ntegral to a finding of harassment under N.J.S.A. 2C:33-4c is the establishment of the purpose to harass, along with a course of alarming conduct or repeated acts intended to alarm or seriously annoy another[.]" Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995)(citations omitted). Furthermore, assuming arguendo that the defendant's purpose to harass the plaintiff is proven, "that purpose, standing alone, would not [satisfy] the definition of harassment under N.J.S.A. 2C:33-4c unless it [is] manifested by a course or repeated acts of alarming conduct." Ibid. As the Supreme Court explained in State v. Hoffman, 149 N.J. 564 (1997),
The purpose of subsection (c) is to reach conduct not covered by subsections (a) and (b). For example, if a person were to ring a former companion's doorbell at 3:00 p.m. on Sunday, flash bright lights into her windows on Monday at 6:00 p.m., throw tomatoes into her front door on Tuesday at 6:30 p.m., throw eggs on her car on Wednesday, and repeat the same conduct over a two-week period, a judge could find that subsection (c) has been violated. We do not imply by that example that five or more episodes are required to establish a course of alarming conduct. That determination must be made on a case-by-case basis.
[Id. at 580-81.]
See also Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.)(noting under subsection (c), proof of "purpose to harass" is insufficient if there is no proof of "either a course of alarming conduct or repeated acts designed to alarm"), certif. denied, 111 N.J. 562 (1988).
In this case, there was no testimony that defendant engaged in a course of alarming conduct or repeated acts with the intention to alarm or seriously annoy plaintiff. Assuming for the moment that defendant's testimony was properly admitted and deemed credible by the judge, it involved only one incident during which she met with plaintiff's boss and alleged that he had stolen company property. Plaintiff claimed that defendant had text-messaged him two months earlier, but there was no evidence as to what the message contained, other than plaintiff's obtuse testimony that the message "accus[ed] [him] of whatever." There was no testimony of prior acts of violence between the parties which might otherwise supply a context to this single incident of contacting and visiting plaintiff's employer and serve to sufficiently demonstrate harassment under N.J.S.A. 2C:33-4c. See Cesare, supra, 154 N.J. at 402 (noting "an ambiguous incident [may] qualify[y] as prohibited conduct, based on a finding of violence in the parties' past").
Although neither party has specifically argued the point, we consider whether the trial testimony supports a finding of harassment under N.J.S.A. 2C:33-4a, which, by its terms, does not require more than a single communication. See Hoffman, supra, 149 N.J. at 580 (holding "subsection (a) proscribes a single act of communicative conduct when its purpose is to harass"). It is undisputed that defendant never saw plaintiff on the day in question and never spoke directly to him. Therefore, the issue becomes whether defendant's communications with plaintiff's boss satisfied the necessary statutory elements of the offense.
In State v. Castagna, 387 N.J. Super. 598 (App. Div.), certif. denied, 188 N.J. 577 (2006), we considered whether defendant's communications to his estranged wife's uncle could support a finding of harassment under subsection (a). Id. at 601-03. We noted,
In order to secure defendant's conviction for harassment, the State was required to establish that he spoke to [the uncle] "with purpose to harass" his wife and with purpose to "cause" [the uncle] to make a communication in a manner likely to cause annoyance or alarm to his wife. N.J.S.A. 2C:33-4a. Thus, the offense requires a purpose that encompasses two objects-- harassment of his wife and "causing" [the uncle] to make the communication.
[Id. at 605.]
We reversed defendant's conviction because we found no evidence "to support a finding that it was defendant's conscious object to cause [the uncle] to convey an alarming message with the purpose of harassing his wife or with awareness that [the uncle] would deliver the statement in a 'manner likely to cause annoyance or alarm' to his wife." Id. at 608.
We concede that in this case, defendant's decision to communicate with plaintiff's boss, and to essentially accuse plaintiff of stealing company property, was done with the purpose to harass plaintiff. Defendant practically admitted such was her intention once plaintiff had made an accusation against her. Additionally, we must also concede that the evidence supports an inference that defendant spoke to plaintiff's boss hoping to cause him to confront plaintiff regarding the allegedly "stolen" company property, something that would very likely annoy or alarm plaintiff. Therefore, we conclude that the evidence could support a finding that when defendant spoke to, and then met with, plaintiff's boss, "it was h[er] conscious object to use him as an instrument of harassment." Castagna, supra, 387 N.J. Super. at 605.
However, we conclude reversal is warranted for another reason. The trial judge apparently believed that any violation of one of the predicate offenses under the Act automatically required the issuance of an FRO. As we noted above, the judge concluded "[a]s a consequence of this being an act of harassment under the statute, it becomes an act of domestic violence under the . . . statute."
We have recently reiterated the analytic framework to be employed by any trial judge deciding whether to issue an FRO:
First, the judge must determine whether the plaintiff has proven . . . that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred . . . . In performing that function, . . . [the] acts claimed by a plaintiff to be domestic violence [must] be evaluated in light of the previous history of violence between the parties. Stated differently, when determining whether a restraining order should be issued . . . the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property.
The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim . . . .
[T]he Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence restraining order. [Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006)(emphasis added).]
In this case, there was no evidence of prior violence between the parties or that an FRO was necessary because plaintiff was in immediate danger and needed protection from defendant. In short, even if defendant's conduct was harassment, plaintiff failed to demonstrate circumstances that warranted the issuance of an FRO. See also Kamen v. Eagen, 322 N.J. Super. 222, 227-28 (App. Div. 1999)(noting "[i]t is clear that the Legislature did not intend that the commission of any one of these [predicate] acts automatically mandates the issuance of a domestic violence order. Domestic violence is ordinarily more than an isolated aberrant non-violent act")(internal citations omitted).
Because we agree with defendant that the evidence adduced at trial was insufficient to prove the need for the issuance of an FRO, we reverse. In light of this conclusion, we need not consider the procedural arguments she has raised.
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