April 9, 2009
TODD PATTISON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FV-11-1409-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 23, 2009
Before Judges Lisa and Reisner.
Defendant Todd Pattison appeals from a final restraining order (FRO) entered on August 28, 2008 pursuant to a complaint filed by plaintiff T.H. under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35.*fn1 We affirm.
Both parties were represented by counsel at the FRO hearing. Plaintiff, a high school teacher, testified that she and defendant had a dating relationship, which she eventually broke off. She testified that on January 14, 2008, she "sent him an E-mail saying that I no longer wanted to hear from him, period; no text, no cell, no phone and that I didn't want to see him any longer." The e-mail, which was introduced in evidence, specifically advised defendant that he was not welcome at plaintiff's home or at her school.
Defendant's e-mailed response was that he would stop e-mailing plaintiff; but in the same communication, he accused her of being undesirable and having no friends, and warned her that "Karma is a powerful thing!!!" However, despite his promise to leave plaintiff alone, defendant persisted in sending her text messages and "phone calls at all hours of the night and morning." Finally, on March 28, 2008, plaintiff "changed [her] phone numbers and blocked [her] E-mail address." She was, however, unable to block her work e-mail address at school.
According to plaintiff, she did not hear from defendant again until June 11 and 12, 2008, when he sent two e-mails to her at work. Because the communications were sent to her school e-mail address, they were on the "school server" and therefore accessible to others. Plaintiff testified that in these e-mails, defendant told her that someone had come to his house investigating me, saying that they had been told that I was a prostitute in high school, that there were issues with my father, and that I had been inappropriate with my kids when I taught in Maryland and that that's why I had left the Maryland teaching position. They also went on to say that I was being inappropriate with my students here in [New Jersey] as well.
The e-mails, which were introduced in evidence and which we have reviewed, corroborated plaintiff's testimony. They consist of a series of bizarre accusations of sexual misconduct, interspersed with protestations of defendant's love for plaintiff. The first one ended as follows:
If you are sexually active with students and/or being paid for sex still please, stop it, it is wrong!!!! So the real question is how much of this is true??? I know that karma is very powerful and in the end the truth always comes out!!! I would encourage you to be honest and for once stop running and face the truth and all that it holds!
In his second e-mail, defendant accused plaintiff of infidelity during their dating relationship, implied that she was having a lesbian relationship as well as an affair with a married man, and accused her of sexual contact with her students. This missive closed with the following:
[T.H.] I can honestly say I never lied to you and gave you my heart on a sliver [sic] platter. It is sure looking like you never told me the truth about anything . . . .
Plaintiff testified that she was confused and frightened by the e-mails. Because they were sent to the school's e-mail system they were potentially accessible to other employees. She was also concerned that defendant would "go to the Board of Ed with this and cause problems for me." Plaintiff testified that she had a spotless employment record, and that the allegations in the e-mails were entirely false. She believed defendant knew they were false and sent the e-mails to harass her:
All the annoying phone calls; now harassing letters. I was so distraught that day, . . . I left that day. I didn't even finish the school day.
Before she left for the day, however, plaintiff went to the assistant principal of her school to report receiving the e-mails. She was concerned that if she did not bring them to his attention, someone else might. School officials called the police to report defendant's conduct.
According to plaintiff, the school board was entirely supportive of her throughout the investigation. However, she filed a domestic violence complaint because she was concerned that defendant would continue harassing her. In that connection, she further described in detail the prior history of her efforts to cut off communication with defendant, and his persistent refusal to leave her alone.
Plaintiff authenticated a message defendant left on her answering machine in March 2008, after she had told him in no uncertain terms to leave her alone. The message referred repeatedly to his understanding that he had hurt her "deliberately with all the phone calls." Plaintiff testified that "[t]he things that he was saying about me were incredibly hurtful and mean-spirited and cruel and he knew it, all to provoke me to try to get me to pick up the phone and communicate with him."
Detective Dranchek testified that she investigated plaintiff's complaint about the e-mails sent to the school computer. She initially called defendant on his cell phone and told him to stop communicating with plaintiff or her family "by any means." Defendant said he would comply. However, the next week, defendant called Dranchek alleging that plaintiff was asked to leave a prior teaching job due to sexual improprieties with students and suggesting that Dranchek investigate. However, defendant refused to give the name of the person who allegedly told him this information. Nonetheless, at the request of plaintiff's employer, Dranchek did investigate defendant's allegations concerning plaintiff's alleged improper activities in the New Jersey and Maryland schools where she worked. As a result of her investigation, Dranchek concluded that the allegations were "[a]bsolutely" unfounded.
Defendant also testified at the hearing. According to defendant, he had been living in Maryland for four years, had never lived in New Jersey, and had no intention of coming to New Jersey. He was the co-owner of a "security officer company" that provided "armed and unarmed security officers for commercial and government clients." He had previously worked as a state police officer in Iowa for fourteen years. He testified that he had a "relationship" with plaintiff for several months, from August 18, 2007 to January 2, 2008.
Defendant admitted that on January 14, 2008, plaintiff sent him an e-mail telling him that the relationship was over and she wanted "no more communication." He claimed that he continued communicating with her thereafter to try to find out "why the relationship ended the way it did." He contended that plaintiff had broken up with him three times before, but they had always gotten back together.
According to defendant, on February 23, 2008, he found a nine-minute message from plaintiff on his home telephone. He testified that the message, which originated from her cell phone, was "extremely garbled" but plaintiff allegedly expressed "regrets" and said that "she needed time." Defendant next sent plaintiff a text message in March asking "how are things going." He testified that she text messaged him back a devil symbol -"the flirtatious one the little devil thing" - which he contended she regularly used to send him in the past. Defendant did not offer in evidence copies of either the text message or the landline telephone message, or the telephone records concerning those calls.*fn2 He claimed he did not save the text message, and that the voicemail message was deleted.
Defendant admitted that he sent the two messages to plaintiff's school e-mail address in June 2008. He denied having any intent to harass her. He claimed that he had "heard some things" about plaintiff and "just wanted to get some information from her so it wouldn't impact me in my career." He also testified that he sent the e-mail to her work address because it was one of several addresses he had for her, and when he typed her name into his e-mail program it automatically "populated" the message "with the E-mail addresses I had." He denied any intention of ever contacting plaintiff in the future.
On cross-examination, defendant admitted that he visited the school where plaintiff worked and dropped off his business card "at the school to indicate that [he] had been there to visit her." He contended, however, that this visit occurred on January 8, 2008, and not after plaintiff's January 14 message telling him to leave her alone. Defendant admitted being in New Jersey on this occasion on his way to visit a client in New York City. He also testified that on another occasion in October, he met plaintiff for lunch while on a visit to a client in New Jersey.*fn3
Defendant admitted that at some point he realized that plaintiff did not want to talk to him. However, he still tried to contact her several more times. When asked the source of the information about plaintiff's alleged misconduct, defendant testified that the source was named "Ben," a person whose last name defendant did not know. When plaintiff's counsel sought to press defendant further on this issue, defendant's counsel stipulated "that the investigation conducted by Detective Dranchek turned up that these allegations were unfounded or baseless." However, counsel did not stipulate that his client knew that the allegations were baseless. Questioned further, defendant contended that, according to Ben, the assorted scurrilous information about plaintiff was relayed to Ben by plaintiff's sister.
Defendant contended that after hearing this information, he contacted plaintiff in June because "I was just curious about answers to questions I had." He also asserted he acted out of concern that her alleged activities could somehow affect his career:
[A]s a license-holder as a security officer company in all those states . . . , if I am found to be associated with anybody of improper, immoral conduct, if I'm aware of any crime, possible crime, or anything, and I don't report that, I could be held to the same penalties what that crime carries.
Although his June e-mails implied that defendant had been contacted by someone who was investigating plaintiff, defendant admitted that Ben was not an investigator but rather was a building contractor. Defendant had "no idea" why Ben was interested in information about plaintiff. Defendant also contended that he was upset to hear these terrible things about plaintiff, because he had been in love with her. He testified that prior to the break-up, they "had talked about possibly moving in together" and "had talked marriage." However, he also testified that he had no idea what plaintiff's "state of mind" would be upon receiving the June e-mails at her place of work.
Immediately after the hearing, the trial judge placed a detailed oral opinion on the record. He found it was undisputed that the parties had a dating relationship, for purposes of the Act. See N.J.S.A. 2C:25-19d. He then considered whether defendant had committed harassment within the meaning of N.J.S.A. 2C:33-4(c):
Thus, the Court must find that, in order to conclude that harassment occurred within the meaning of the statute, that defendant's purpose in sending the E-mails in question was to harass, to annoy, or to alarm the plaintiff.
The question is whether a reasonable person subject to the same history as the victim would be annoyed or alarmed by defendant's behavior.
The judge concluded that defendant was confused and upset when plaintiff broke up with him. The judge then focused on the two June e-mails, the content of which he reviewed in detail. He concluded that they were sent with the intent to annoy or alarm plaintiff:
It is clear to the Court that the two E-mails sent in June, . . . to plaintiff on the school E-mail system were designed to annoy or alarm plaintiff at a minimum. Accepting the testimony that since the end of March there had been no contact between defendant and plaintiff, to receive these E-mails more than two months later, out of the blue, containing allegations which are extremely troubling to any teacher, clearly and reasonably, a reasonable person would be annoyed or alarmed by the defendant's E-mails.
Plaintiff did the responsible thing. Having received these E-mails, she reported these to school officials who also acted responsibly in having law enforcement . . . investigate the allegations. Plaintiff called the detective assigned to investigate these allegations who determined them to be completely unfounded.
The Court therefore concludes that defendant engaged in harassment; that, in sending the two E-mails on June 11th and 12th, he had a purpose to harass the plaintiff and that the method he chose was likely to cause annoyance or alarm. This conclusion is bolstered by defendant's prior employment as a law enforcement officer as well as a security specialist. Someone who is concerned, and rightfully so, about his career at the same time would be aware of the repercussions of the E-mail content on plaintiff's career.
I therefore find that . . . defendant committed an act of domestic violence within the meaning of 2C:25-19 in the form harassment by contacting plaintiff via her school E-mail server on June 11th and June 12, 2008.
The third prong of the three-prong test that plaintiff must prove by a preponderance of the evidence is the need to protect plaintiff against future domestic violence. In this case, it is clear there has been no physical violence, no direct threats against plaintiff by defendant. That alone does not end the inquiry. Defendant, in attempting to explain his rationale for sending the E-mails of June 11th and June 12th, has testified that he is duty-bound to report concerns and any evidence of criminal contact or criminal offenses committed by persons with whom he is associated. Thus, accepting that to be true, although the Court has its doubts as to the limits and the extent of that duty, accepting that to be true, this scenario could certainly repeat itself in the future. And if defendant believes he is duty-bound to report evidence of misconduct by the plaintiff that he receives from shadowy figures such as Ben or another person, a neighbor, any person in the future, it appears to the Court that this could occur again. And based upon that, I find that there is a need to issue a final restraining order to protect plaintiff against future domestic violence.
I have reviewed the cases cited by defendant, [Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995), and J.N.S. v. D.B.S., 302 N.J. Super. 525 (App. Div. 1997)]. These cases essentially reach the conclusion that there was insufficient evidence in the record that defendant intended to alarm or annoy the plaintiff and therefore a final restraining order was not justified. Defendant properly points to N.J.S.A. 2C:25-29(a) as factors that the Court must consider. The Court has considered those factors and, although most of those factors do not apply by virtue of the fact that the parties are no longer in a relationship and do not have children or financial issues in common, the existence of immediate danger to the plaintiff cannot be downplayed. Where an individual, a former law enforcement officer with access to security information, can send an E-mail to the plaintiff at her employment containing content that clearly would jeopardize plaintiff's employment with questionable factual basis for doing so, the Court finds that there is danger to the plaintiff, her livelihood, her career, her reputation, her good name.
The Court hopes . . . that defendant recognizes that the relationship is over. However, this does not, in and of itself, mean that a court cannot issue a final restraining order where the court has found the elements of harassment exist, that there is a possibility of repetition, indeed a likelihood of repetition given defendant's own interpretation of his duty as a security official with government clearance.
For those reasons, I will grant a final restraining order. I believe this action by defendant was greater than the trivial and petty communications referred to in J.N.S. This was anything but trivial in terms of its potential effect on plaintiff's career. Again, I conclude that, under the doctrine established in [Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006)], that one sufficiently egregious action is sufficient and that a pattern of abusive and controlling behavior, although a classic characteristic of domestic violence, is not necessary where the one predicate action of domestic violence is sufficient[ly] egregious.
For that reason, I do not feel it is necessary to conclude that defendant's second telephone call to Detective Dranchek supports the allegation of harassment. However, I do -- I am mindful that, in reaching my conclusion, that the June 11th and June 12th E-mails constituted harassment within the meaning of [N.J.S.A. 2C:33-4].
On this appeal, defendant raises the following issues:
POINT I: SINCE THE ISSUANCE OF THE FRO WAS BASED IN PART ON INADMISSIBLE HEARSAY FROM A POLICE REPORT, THE JUDGMENT MUST BE REVERSED.
POINT II: THE EVIDENCE WAS INSUFFICIENT TO MEET THE STATUTORY STANDARDS FOR ISSUANCE OF A FINAL RESTRAINING ORDER. FAILURE TO ESTABLISH HARASSMENT BOTH LEGALLY AND FACTUALLY. PLAINTIFF FAILED TO ESTABLISH THE NECESSITY FOR AN FRO.
POINT III: SINCE THERE WAS NO EVIDENCE OR SUGGESTION OF VIOLENCE OR THREATS OF VIOLENCE, THE MATTER SHOULD BE REMANDED TO VACATE THE FRO AND RETURN DEFENDANT'S FIREARMS PURCHASER IDENTIFICATION CARD, WHICH IS ESSENTIAL FOR HIS BUSINESS. DEPRIVING DEFENDANT OF THIS CARD IS INCOMPATIBLE WITH THE PURPOSE OF THE DOMESTIC VIOLENCE ACT AND INFRINGES DEFENDANT'S CONSTITUTIONAL RIGHTS.
In light of our disposition of this appeal, we need not address Point III, which in any event is not ripe for our consideration. Thus, we turn to the remaining points.
Our review of the trial judge's findings are limited to determining whether they are supported by substantial credible evidence and are consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We owe particular deference to the judge's evaluation of witness credibility. We also defer to the expertise of the Family Part in addressing issues within its jurisdiction, and specifically in cases involving domestic violence. Cesare, supra, 154 N.J. at 412-13.
Having carefully reviewed the entire record, we conclude that defendant's Points I and II are without sufficient merit to warrant extended discussion here. R. 2:11-3(e)(1)(E). The trial court's decision is supported by ample credible evidence, R. 2:11-3(e)(1)(A), and we affirm substantially for the reasons stated in the trial judge's well-reasoned oral opinion. We add the following comments.
Detective Drancheck's police report was admitted in evidence without objection. Contrary to defendant's contention, the trial judge noted, but did not base his decision on, statements in that report concerning plaintiff's sister being afraid of defendant. However, even if the judge considered hearsay within the report, any error would be harmless in light of the evidence of harassment in this case. See R. 2:10-2.
We are also satisfied that the judge properly found that defendant violated the Act by committing harassment within the meaning of N.J.S.A. 2C:33-4(c), and that entry of a final restraining order was warranted. Harassment, one of the predicate offenses on which a finding of domestic violence may be based, N.J.S.A. 2C:25-19(a)(13), is defined as follows:
[A] person commits a petty disorderly persons offense if, with 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;
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. [N.J.S.A. 2C:33-4.]
It is clear from his opinion that the trial judge based his decision on subsection 4(c). Contrary to defendant's argument that his conduct was non-threatening and trivial, we agree with the trial judge that the conduct was serious and alarming and was committed with the "purpose to alarm or seriously annoy" the victim. See N.J.S.A. 2C:33-4(c). Therefore, defendant's reliance on Bresocnik v. Gallegos, 367 N.J. Super. 178 (App. Div. 2004), Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995), and similar cases, is misplaced.
In discussing the necessary proof of a purpose to harass another, we have acknowledged that "[t]here is rarely direct proof of intent, and purpose may and often must be inferred from what is said and done and the surrounding circumstances. Prior conduct and statements may be relevant to and support an inference of purpose." State v. Castagna, 387 N.J. Super. 598, 606 (App. Div.), certif. denied, 188 N.J. 577 (2006). Here, after plaintiff told him repeatedly and in no uncertain terms to leave her alone, defendant sent two e-mails to her workplace filled with allegations calculated to upset her and having the distinct potential to destroy her professional reputation. Any reasonable person in plaintiff's position would have found these communications to be extremely upsetting, alarming and seriously annoying. See N.J.S.A. 2C:33-4(c). Any rational person, and especially a former law enforcement officer as defendant claims to be, would have to know what plaintiff's reaction would be and the threat the communications might pose to her employment. Under all the circumstances there was sufficient proof of defendant's purpose. Moreover, even on a cold record, defendant's attempts to explain where he allegedly learned the information contained in the e-mails, and to explain why he sent them, were patently incredible.
Finally, given the history of defendant's repeated unwelcome communications with plaintiff, as well as the bizarre content of the June e-mails and defendant's disingenuous explanation for his conduct, the judge was not obligated to credit defendant's assurances that he would refrain from such behavior in the future. "At its core, the 1991 Act effectuates the notion that the victim of domestic violence is entitled to be left alone." State v. Hoffman, 149 N.J. 564, 584 (1997). We find no error in the trial judge's conclusion that a FRO was warranted to protect plaintiff from further harassment. See Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006).