April 7, 2010
On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Warren County, Docket No. FV-21-570-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2010
Before Judges Messano and LeWinn.
Defendant G.H. appeals from a final restraining order (FRO) issued in favor of plaintiff J.H. pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Defendant contends that the trial judge erred because "the predicate act upon which the temporary restraining order [(TRO)] was issued did not constitute an act of domestic violence." We have considered this argument in light of the record and applicable legal standards. We affirm.
The parties were married on September 23, 1995; plaintiff filed a complaint for divorce on February 19, 2008, alleging extreme cruelty. Three days later, she filed an order to show cause in the Family Part under the FM docket seeking, among other relief, sole possession of the marital residence. In her certification, she claimed that defendant threatened to take the couple's eleven-year old son out of New Jersey; that defendant posed a risk to her and her son because of his drug use and penchant for firearms that were kept in the home; and that defendant suffered from psychological problems that manifested themselves in threats of suicide.
On March 4, defendant filed opposition and a cross-motion. In his certification, he claimed that plaintiff had recently suffered "her fourth nervous breakdown" in the last year due to emotional stress caused by her father's recent death. Defendant also claimed that plaintiff's brother, M.R., was instigating trouble between the couple in an effort to force defendant out of the home so that M.R. could "settle in with his sister and live quite comfortably for an extended period of time."
Defendant admitted he was a gun collector, but claimed that he had no access to any of the weapons since February 2007. Because of plaintiff's concerns at that time, he agreed to lock all the weapons in safes. He certified that only M.R. knew the combinations. However, after he was served with the divorce complaint, defendant made arrangements to have the guns delivered to his father's home in Pennsylvania, where they remained in the safes and inaccessible to anyone in the marital home. Among other things, defendant's cross-motion sought an order removing M.R. from the parties' home.
After a hearing on March 7, 2008, the judge entered an order on March 10 maintaining the status quo with respect to a number of financial issues; requiring both parties to submit to drug and alcohol screenings; and converting the remaining requests for relief into a motion returnable on March 20.*fn1 The order did not grant or deny plaintiff's request that defendant be removed from the marital home, and it required further certifications from both parties on the remaining issues.
Plaintiff filed her supplemental certification on March 12. On March 13, plaintiff applied for and received a TRO under the Act. In her complaint, she alleged that defendant had engaged in threatening conduct beginning in January and culminating that day when she discovered that defendant had possession of "numerous guns that were supposed to be locked up." Plaintiff alleged that these events amounted to harassment, N.J.S.A. 2C:33-4. Regarding prior incidents of domestic violence, plaintiff referenced those "reported" to the judge on March 7, the date of the hearing on her order to show cause in the matrimonial case.
On March 20, plaintiff filed an amended complaint under the Act "for the sole purpose of supplementing the events set forth in the original [c]omplaint...." In the amended complaint, plaintiff listed other incidents of alleged domestic violence. Included in that list were references to a prior restraining order issued against defendant in favor of his prior wife, C.H., in Pennsylvania in 1993. The complaint indicated that defendant had threatened his prior wife with a gun, physically abused her, and raped her.
The domestic violence trial commenced on April 3 before the same judge who heard plaintiff's application for an order to show cause in the divorce action. Plaintiff's son from a prior relationship, M.T., testified that on March 11, he drove with defendant to his father's home in Pennsylvania to deliver a chair. Along the way, defendant told him that a friend had "busted in[to] the safes" so that defendant now had access to the weapons. M.T. did not immediately tell plaintiff about the conversation. He believed defendant wanted M.T. to tell his mother that the safes were now accessible in order to "intimidate" her. On March 13, however, M.T. became aware that his uncle, M.R., had been arrested in an altercation with defendant. That day, M.T. told his mother about his conversation with defendant regarding the weapons.
Sergeant Todd Pantuso of the Washington Township Police Department responded to the parties' home during the early afternoon hours of March 13. He testified that he was met by defendant who claimed that M.R. was in the house and had threatened him with a gun. Pantuso questioned defendant about the weapon; he admitted it was his, and that M.R. had retrieved it from a briefcase in the basement.*fn2 M.R. was arrested. Plaintiff was not present during the incident, but arrived while the police were still at the home.
Several hours later, plaintiff responded to police headquarters seeking a domestic violence TRO. Patrolman Phillip Smith testified that plaintiff claimed to be in fear and described a number of threatening statements defendant had made to her since January. Smith then went to defendant's office to serve him with the TRO and advise him that pursuant to its terms he intended to search for any weapons. Defendant initially denied that he had any, telling Smith, "all of the guns [a]re locked up in a safe at [my] father's house in Pennsylvania." Smith repeated the inquiry; defendant responded, "I'll save you guys the time... and make it easy"; he told Smith that he had three handguns in his office. Smith retrieved them from an unlocked cabinet; the weapons were unsecured and loaded.*fn3
Plaintiff testified that on March 13, she arrived at her home around 1:30 p.m. and was restrained from entering the house by a number of police officers. M.T., who was in New York City, called her; he was aware of the police activity because a friend had called him on his cell phone. M.T. told his mother about the March 11 conversation he had with defendant regarding the gun safes. Plaintiff was "terrified" by the news because defendant "had been very violent in the past," manifested "erratic mood swings, and had threatened to use his weapons against him[self] and [her] in the past."
Plaintiff described two events that occurred in April 2007 that resulted in defendant's agreement to secure the weapons in safes. She had advised defendant that she wanted to separate; he commented "that he understood why doctors... come home and kill their families and then themselves." Some days later, defendant "threatened to kill himself." On April 17, 2007, she was in her home office working when defendant entered and placed two articles on her desk; "[o]ne was about spousal murder and one was about suicide." He told plaintiff to read them.
Plaintiff became frightened. Along with five friends, she confronted defendant in what plaintiff described as an "intervention." She told defendant that she would only stay with him if the guns, at least two dozen, were locked away, and the couple participated in counseling. Defendant agreed, and plaintiff's brother changed the combination of the locks on the gun safes.
The parties continued to have marital problems. In January 2008, after an argument, defendant told his son to "go get a Bible." Defendant went upstairs and "brought a gun back." In front of plaintiff and his son, defendant kept repeating "I'm done." Defendant told plaintiff "that he couldn't bear to live if [she] forced [a] separation...." He admitted to having "three loose guns" that were not locked up in the safes.
Several weeks later, in a conversation that plaintiff taped and was played for the judge, defendant admitted to having three unsecured guns and told plaintiff that she would "never find them." He acknowledged smoking marijuana, but agreed he would stop if plaintiff stayed with him. Defendant apologized for his "emotional outbursts," and told plaintiff "[he] w[ould] not condemn[,]... belittle... [or] slam [her]" again. He promised plaintiff "[t]here w[ould] be no more emotional abuse...."
Plaintiff's father died on February 7, and shortly thereafter she attended the funeral in Texas with her son; she did not want defendant to accompany her. Plaintiff filed her divorce complaint while in Texas because she "was afraid of [defendant's] reaction to the papers." After he was served with the divorce complaint, defendant arrived in Texas, unannounced, to attend plaintiff's father's memorial service. He begged her to reconsider her decision. When she returned, the gun safes were no longer in the home.
Plaintiff testified that in January, before she went to Texas, defendant saw several books she had ordered on-line that dealt with dissolving a marriage. He became enraged and said that if she persisted with her intention to separate and if she contacted an attorney, "it would be scorched earth." Plaintiff claimed that early in their relationship, defendant had told her about the domestic violence complaint his ex-wife had filed in Pennsylvania. However, defendant insisted that the charges were fabricated and that his ex-wife was "a pathological liar."
Around six p.m. on March 12, plaintiff began receiving a series of faxes at home, five in total, "a minute or two apart"; each was a copy of defendant's negative urinalysis report submitted pursuant to the judge's order entered two days earlier. Plaintiff testified that defendant had "stolen" and copied a private letter she wrote to her counselor some months earlier; on March 12, "multiple copies were strewn across the kitchen counter." Defendant threatened to "put them in the newspaper." That same evening, defendant threatened to print nude photos he had taken of plaintiff, and "make use of them."
Plaintiff introduced certified copies of the pleadings in the prior domestic violence action filed by defendant's former wife in Pennsylvania. Although they are not part of the appellate record, it appears that a final restraining order was entered against defendant in that action.
Defendant called Dennis McNally as a witness. McNally was defendant's friend and had socialized with both parties. On March 6, he was asked by defendant to open a file cabinet and a small safe that were at his father's home in Pennsylvania.
McNally drove to Pennsylvania and opened both two days later. McNally also saw the two gun safes; he was not asked to open them, and they remained locked.
Defendant testified. He acknowledged that he was a gun collector, but claimed that plaintiff never expressed any fear of the weapons to him during their marriage. He acknowledged that he agreed in 2007 to allow M.R. to secure the weapons so that defendant could not access them. However, defendant claimed that he told M.R. and the couple's marriage counselor that he intended to keep three guns "out of the safe[s]" in his father's home. On March 10, defendant brought those three guns from his father's home and intended to give them to a friend who was also a gun collector; he denied telling M.T. that the gun safes had been opened. When he was served with the TRO, defendant turned over the three guns to the police. Defendant acknowledged that the police found an additional gun in the marital bedroom of the home, but denied he had placed it there.
Defendant described the couple's marital problems which, by February 2007, had developed to the point that plaintiff "wanted to control every aspect and function of [his] life." He referenced an April 2007 document in which plaintiff set out certain conditions as predicates for his continued co-occupancy of the house. When he deviated from any of the conditions, defendant testified that plaintiff would become enraged.
Defendant claimed that plaintiff suffered significantly from the stress of her father's death, and was unable to handle the smallest details of daily life. He denied the specific allegations plaintiff made in her amended complaint.
On May 27, the judge issued a lengthy oral opinion from the bench. She found plaintiff's testimony credible and concluded that the events between January and March 13, 2008 occurred as plaintiff described them. She further concluded that on March 12, after defendant knew plaintiff had filed a responsive certification in the matrimonial action, he "embarked on a course of annoying and/or alarming conduct toward plaintiff." The judge cited plaintiff's testimony regarding the threats to expose her private letter to her therapist, the threat to circulate nude photos of plaintiff, and the repetitive faxes regarding defendant's negative urine screen.
Commenting on defendant's testimony, the judge said:
It was almost obsessive in nature....
[T]he manner in which he testified actually placed the Court at a little bit of unease.
In his very last answer... on cross-exam where three times in one answer, I made note of this, he said my name is G., I collect guns. Almost in a defiant tone. His demeanor just led the [c]court to doubt his credibility.
The judge concluded that "it was the course of conduct by defendant toward plaintiff from January 24 to March 12" that demonstrated harassment, the necessary predicate act of domestic violence. The judge also concluded that entry of the FRO was required "to prevent future acts of domestic violence by [defendant] against [plaintiff]." She entered the FRO and this appeal followed.*fn4
Defendant contends that the judge erred because plaintiff "failed to prove an act of domestic violence occurred...." He argues that the parties were engaged in a matrimonial dispute, and that his conduct amounted to no more than "ordinary domestic contretemps." Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995).
Our scope of review is limited, and we are required to accord deference to the trial judge's findings of fact in a non-jury trial. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citation and quotation omitted). We accord particular deference to the fact finding of a Family Part judge, "[b]ecause of the family courts' special jurisdiction and expertise in family matters...." Id. at 413. An appellate court should only disturb the trial court's "'factual findings and legal conclusions... [if it is] convinced that they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484).
"Harassment" is one of the predicate offenses supporting a finding that an act of "domestic violence" has occurred. N.J.S.A. 2C:25-19(a)(13). In pertinent part, a person commits "harassment" if
[W]ith purpose to harass another, he:
c. Engages in any... 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.]
We have noted that "[i]ntegral to a finding of harassment under N.J.S.A. 2C:33-4(c) 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). As the Supreme Court explained in State v. Hoffman, 149 N.J. 564, 580-81 (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.
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") (emphasis omitted), certif. denied, 111 N.J. 562 (1988).
Defendant's argument that the events of March 13, the day plaintiff's brother was arrested, were insufficient to demonstrate harassment is misplaced. In this case, we think it is clear that the trial judge carefully considered the evidence, and, having found plaintiff's version of the events credible, and defendant's not, concluded that defendant had engaged in a course of conduct commencing in January 2008 and culminating on March 12, 2008, with the purpose to alarm and seriously annoy plaintiff, and that he achieved his intended purpose.
The judge reached this conclusion in light of specific findings regarding a substantial history of marital discord. See Cesare, supra, 154 N.J. at 405 (noting the significance of the "particular history" of the parties and "a defendant's prior abusive acts regardless of whether those acts have been the subject of a domestic violence adjudication") (citations omitted). The judge noted that plaintiff expressed grave concern and fear of defendant's verbal abuse, his prolonged use of marijuana, and his access to weapons, all of which he acknowledged in the taped recording the judge heard and considered.
That history, along with the judge's specific findings regarding defendant's course of conduct between January and March 2008, serves to distinguish this case from those upon which defendant relies to argue that the evidence supported only a finding of marital contretemps. Compare Corrente, supra, 281 N.J. Super. at 244-46, 249-50 (finding no harassment when the defendant disconnected his wife's phone after calling her at her place of employment and demanding money to pay bills); Peranio, supra, 280 N.J. Super. at 49-52 (finding no purpose to harass when the husband stated, "I'll bury you" in response to the wife selling his possessions without permission). In both of those cases, we found "that there was no history of threats, abuse, or domestic violence between the parties." Cesare, supra, 154 N.J. at 416 (citing Corrente, supra, 281 N.J. Super. at 250; Peranio, supra, 280 N.J. Super. at 56; Murray v. Murray, 267 N.J. Super. 406, 408 (App. Div. 1993)).
We acknowledge that the precipitating events leading to the domestic violence complaint in this case arose contemporaneously with plaintiff's institution of a divorce action. In such circumstances, we have cautioned:
[t]he Act is intended to assist those who are truly the victims of domestic violence. It should not be trivialized by its misuse in situations which do not involve violence or threats of violence. In addition, we have previously expressed our concern that the Act may be misused in order to gain advantage in a companion matrimonial action or custody or visitation action. [Kamen v. Egan, 322 N.J. Super. 222, 229 (App. Div. 1999) (citations omitted).]
See Cesare, supra, 154 N.J. at 416 ("[A] complainant [may not] use the... Act merely to gain an advantage in a matrimonial proceeding."). Defendant contends that since the judge initially denied plaintiff the relief she sought by way of an order to show cause in the matrimonial action, plaintiff sought to get "a leg up" in that case by initiating the domestic violence complaint.
This ignores the fact, however, that it was not until the judge heard the extensive testimony at the domestic violence trial that she was able to fully assess credibility. For example, at trial, the judge found that defendant "lied about having access to [guns] on more than one occasion." It was only at trial that the judge became privy to the breadth of defendant's acts of harassment, hearing, for the first time, the taped conversation between plaintiff and defendant. It revealed defendant's admissions about his past conduct. The recording also revealed defendant's knowledge that plaintiff wanted him to discontinue his use of marijuana and possession of guns, as he stated, "I know the guns and smoke hurt you." In short, we conclude that the judge's determination that defendant had engaged in harassment was fully supported by the trial record, and we find no basis to disturb that finding.
Moreover, the judge's determination that an FRO was necessary to protect plaintiff was well-founded. In deciding whether to issue a final restraining order, "the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). As already noted, the judge found that defendant's conduct was not simply an isolated incident. She further found that defendant had misrepresented to the court his immediate access to weapons, and that plaintiff had a justified concern, in light of the parties' history, regarding the availability of firearms. Under the totality of circumstances presented, the issuance of the FRO was appropriate.