On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-809-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and C.L. Miniman.
Defendant Shawn Curry appeals from the entry of a final restraining order (FRO) on December 19, 2007, under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act), based on an argument that occurred at about 5:30 p.m. on November 30, 2007, between defendant and plaintiff Aven Curry, his wife. Because the evidence was insufficient to prove a violation of the harassment statute, N.J.S.A. 2C:33-4(c), we reverse and remand the matter for entry of an order dissolving the FRO.
The evidence, viewed in a light most favorable to plaintiff, established that plaintiff worked as a bartender and that defendant worked as a customer-service representative for a truck-leasing company. Defendant owned a small retail store in Southampton selling motorcycle merchandise. On the day in question, defendant saw sexually explicit instant messages between plaintiff and someone named J.M. on the store's computer. Defendant removed a spark plug from a motorcycle that plaintiff had driven to the store because he did not want her to leave the store before they discussed the instant messages.
After plaintiff finished a transaction with a customer, she attempted to erase the instant messages, but defendant confronted her and asked her to attend marriage counseling, which she refused to do. Defendant then demanded the return of the rings he gave her and asked for a divorce. He said that he was tired of plaintiff "making an ass out of him." Plaintiff testified that she could not get the rings off her finger because her finger was swollen, but she claimed that defendant did take the keys to the car she used (defendant's 2000 Ford Taurus Wagon) and her cell phone. Plaintiff then left the store to get away from defendant and started walking home, which was two-and-a-half miles from the store.
Soon thereafter, defendant locked the store and drove the Taurus down Route 206 looking for plaintiff. She was about two hundred feet down the road when defendant pulled into a gas station, got out of the car, blocked her path, asked for the motorcycle key, and would not let her pass, blocking her path by standing "really close in front of" her as she tried to walk around him. Then he grabbed her leather jacket out of her arms, tossed it in the car, and took her rings off her finger after she had worked them loose. Plaintiff told him to leave her alone four or five times during their conversation, which lasted five to ten minutes. Plaintiff did not claim at trial that defendant used force in taking her rings and jacket. Sometime after defendant left the scene, plaintiff's mother picked her up, saying that defendant had called her. Plaintiff went to her mother's house.
Plaintiff testified to a previous incident between the parties that occurred on Thanksgiving Day, November 22, 2007. Plaintiff's mother had invited J.M. and his father to dinner that day and, when defendant saw them, he became angry, accused plaintiff of trying to humiliate him, and left her mother's home. Shortly after he left, defendant called plaintiff on her cell phone and started yelling at her and said that maybe they should get a divorce. For the next week, when plaintiff felt that an argument was going to start, she "would go for a walk or a run just to get out of the house" and, if he was mad enough, defendant would say, "That's right, run away." She testified that they argued off and on until November 30. She also testified that she was afraid of defendant because he weighed twice as much as she did, had the "potential" to become violent, and would say "Are you trying to make me hit you, is that what you want?" He had also told her in the past "If anything ever happens between us, if we separate, you'll always be watched." She explained that she did not seek a temporary restraining order until December 5, 2007, because she wanted to consult with an attorney.
On cross-examination, defendant's attorney showed plaintiff two photographs ostensibly from the store's surveillance camera. Plaintiff testified that one of the pictures depicted her trying to get her rings off and the other showed that her keys to the store, her rings, her cigarettes, and her cell phone were on the counter in the store. Plaintiff claimed that J.M. was a friend, not a boyfriend, and admitted that the printed instant messages marked for identification were created by her and J.M. She testified that the words "I'll be with you making your world rock" were just words that did not mean anything, just two people talking and "screwing around." She also testified that the words "Just thought you wanted him . . . dead, not me, lol" did not refer to anyone.
Defendant testified that the entire conversation at the store was videotaped, but did not move the tape into evidence. He further testified that, after plaintiff put soap on her finger, she was able to remove her rings and gave them to him in the store, not on the highway. She also left her cell phone and keys on the store counter; he never took them out of her hand. He claimed that, when he went to the gas station, he asked "Harry's dad" if he had seen her, but he had not. Defendant then saw her walking down the highway and pulled up beside her. He rolled down the passenger window and told her to get in the car, that he would take her home to get some clothes and then take her to her mother's house. Plaintiff refused. He got out of the car and asked for the motorcycle key, which she gave him and then she threw the leather jacket at him, shouting an obscenity at him. He picked it up and put it in the car, later concluding that it was from the store inventory.
After defendant left plaintiff on the side of the road, he called her mother to tell her of plaintiff's location and ask her to give plaintiff a ride. He also told plaintiff's mother that he believed plaintiff was cheating on him and that he wanted a divorce. Defendant denied ever hitting plaintiff, who did not claim that he had ever down so. He also claimed that she was trained to repair motorcycles and could easily have replaced the spark plug if she wanted to drive it. She did not dispute this testimony. Defendant testified that he wanted the keys to the motorcycle to prevent her from driving it because she had been drinking in the store and her last driving-while-intoxicated conviction cost him $1500. Again, plaintiff did not dispute this testimony.
At the conclusion of the evidence, the judge acknowledged that some of the facts were disputed and noted that the issues were what set of facts he found credible and whether the credible facts constituted the offense of harassment contrary to N.J.S.A. 2C:33-4(c). He then made the following findings of fact:
And I think, under all of the circumstances, the gentleman's behavior . . . has constituted harassment and does go over the top. I think the gentleman is attempting to be very restrained and appropriate, but the harassment statute says that, "With the purpose to harass another and engages in [a course of] ...