October 20, 2009
SANDY SOMERSET, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-1468-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009
Before Judges Gilroy and Simonelli.
Defendant Sandy Summerset*fn1 appeals from a Family Part order granting plaintiff's request for a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (PDVA). We reverse.
Plaintiff and defendant had a dating relationship that terminated a few months before the incident forming the basis of these proceedings. There is no history of domestic violence between them.
On November 1, 2008, when plaintiff and his new girlfriend arrived at plaintiff's home, defendant was there waiting for them. Defendant opened the passenger door of plaintiff's vehicle and then pulled plaintiff's girlfriend from the vehicle and assaulted her. Plaintiff intervened to stop the assault and took his girlfriend to the hospital for treatment for the injuries she had sustained.*fn2 Defendant had no verbal or physical contact with plaintiff during this altercation.
The trial judge found that defendant's conduct violated N.J.S.A. 2C:33-4c because she engaged in annoying conduct by assaulting plaintiff's girlfriend in plaintiff's presence, requiring his intervention. As to the purpose to harass, the judge found, in relevant part, that purpose is also described in terms of reckless conduct. It's not . . . like a specific intent. The defendant . . . may not have the specific intent to harass the plaintiff, but . . . isn't there an argument that her action or at least the proofs at this juncture are such that . . . they were of such gross or reckless type of conduct that it had the reckless effect of affecting . . . plaintiff. I mean . . . this isn't just . . . an insignificant act. The testimony is that, . . . his girlfriend was beaten up and he had to go and stop the fight and take her to the hospital.
. . . . . . .[B]ut I don't think specific intent is a necessary element here. I think that the element here is one of reckless conduct. And reckless conduct can have the . . . appropriate consequences of the plaintiff being subject to this annoying conduct.
Our review of a family judge's findings is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will "not disturb the 'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)).
Defendant contends that the FRO must be vacated because plaintiff failed to establish, and the judge failed to find, that she acted with the purpose to harass plaintiff. We agree.
A plaintiff seeking a FRO under the PDVA must establish that the defendant committed an act of domestic violence. Franklin v. Sloskey, 385 N.J. Super 534, 542 (App. Div. 2006) (citing Cesare, supra, 154 N.J. at 394). The PDVA defines domestic violence as the commission of any one of the fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19(a). Harassment, N.J.S.A. 2C:33-4, is among the fourteen 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 alleged as one of the underlying offenses here,*fn3 is committed when a person, "with purpose to harass another," "[e]ngages in any other course of alarming conduct . . . with purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33-4c. 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).
"Integral 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 evidence that defendant had a purposeful, conscious objective to alarm or seriously annoy plaintiff, and no evidence that defendant engaged in a course of alarming conduct or repeated acts with the intent to alarm or seriously annoy plaintiff. There also was no evidence of prior acts of violence which might otherwise supply a context to this single incident and serve to sufficiently demonstrate harassment under N.J.S.A. 2C:33-4c.