May 14, 2010
On appeal from Superior Court of New Jersey, Law Division, Family Part, Bergen County, Docket No. FV-02-2019-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 20, 2010
Before Judges Wefing and Grall.
Defendant R.L. appeals from a final restraining order entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The complaint was filed by defendant's former wife, plaintiff Y.W. Defendant argues that the complaint does not include allegations sufficient to establish a prima facie case of domestic violence. He also contends that the trial judge's finding of harassment as defined in N.J.S.A. 2C:33-4c, which is based upon his mailing of intimate photographs of plaintiff to third parties, is not supported by adequate competent evidence. Plaintiff did not participate in this appeal. Because the complaint was sufficient and the evidence was adequate, we affirm.
A summary of the evidence produced at trial follows. Plaintiff and defendant were divorced on April 30, 2008, after three years of marriage. After their divorce, the parties resumed a dating relationship, which they terminated on October 3, 2008. This complaint was filed on April 3, 2009.*fn1
There was no dispute that during their relationship, defendant took pictures of plaintiff, with her consent, while she was unclothed. The pictures were taken in the marital residence and no one other than the parties was present when they were taken. According to plaintiff, when she left the marital residence, defendant threatened that he would post those pictures of her on the internet and send them to her "future" boyfriend.
On October 3, 2008, the day plaintiff ended their post-divorce dating relationship, they argued. During that argument, defendant hit plaintiff three times in her mouth and pulled her hair.
On November 14, 2008, defendant sent plaintiff a letter by Federal Express. He wrote, "Now you have your pictures, enjoy them." According to defendant, however, the reference to pictures in that letter was to photos he had taken on their vacations, not to the intimate pictures he had taken.
On November 26, 2008, defendant signed a Federal Express form arranging a delivery to plaintiff's mother in China. The labeling on the envelope indicated that photos were enclosed. At trial, defendant acknowledged sending that envelope and testified that the photos were of places the parties toured and of his mother-in-law's visit to the United States. According to plaintiff, after November 26, 2008 her mother sent her intimate photos of plaintiff that defendant had taken in the marital residence.
In November 2008, plaintiff's car was moved from the place where she had left it. She received a call from a person who told her where she could find her car. She recognized the caller's voice; it was defendant, who still had a key to her car. She later found the car parked in a lot at Newark Airport where defendant said it would be. The vehicle was not damaged in any way, but the personal belongings she had left inside were missing.
In December 2008, plaintiff filed and withdrew a complaint seeking a restraining order under the PDVA. At that time, she and defendant signed an agreement specifying restraints they would observe. Pursuant to that agreement, defendant was to refrain from "disseminating . . . private intimate pictures of plaintiff to plaintiff's family, friends, or [any] other third-party." The parties also agreed not to have contact with one another. Plaintiff was taking classes at Fairleigh Dickinson University in Teaneck (FDU), and they agreed that defendant would delay his participation in a graduate program at FDU until September 2009.
In January 2009, defendant started his graduate studies at FDU. On January 17, 2009, plaintiff was visiting her boyfriend in New York and during that visit received a call on her cell phone from defendant, who said he knew where she was. On January 25, 2009, within days of starting a new job at a new location, plaintiff saw defendant in his car outside her workplace. That night she learned that the gas tank of her car, which she had parked in a lot at FDU, had been filled with water. On February 17, 2009, plaintiff and defendant were both at a mall and passed each other on escalators that were moving in opposite directions. Defendant, who was speaking to someone on his cell phone, made a derogatory comment about plaintiff.
Plaintiff produced three envelopes all postmarked March 30, 2009 in Westchester, New York. The envelopes were addressed to acquaintances of plaintiff's - one to her boyfriend, one to the husband of a friend, and one to a classmate. None of those envelopes had a return address. Based upon her familiarity with defendant's handwriting acquired over three years of marriage, plaintiff identified defendant as the person who had addressed the envelopes.
Defendant denied knowing the name or address of plaintiff's boyfriend or the address of her friend. Plaintiff testified that defendant once talked about hiring a private investigator and that, based on her encounters with defendant in January and February, she believed he was following her.
Although the recipients of the envelopes did not testify at trial, plaintiff did. According to her, the envelopes she had in the courtroom contained "[her] nude pictures" that defendant had taken during the marriage. At least with respect to one set of photographs, plaintiff explained that she received the photographs from the friend to whom the envelope was addressed.
Plaintiff and defendant both testified that they were unaware of anyone else who had copies of the intimate pictures defendant had taken during their marriage. According to defendant, however, plaintiff took all of the photographs he had after he signed their December 2008 agreement and she also had a disk on which the images were stored. He, on the other hand, had deleted the images from his computer.
According to plaintiff, the pictures in the envelopes she produced at trial depicted her as she was in the pictures her mother sent to her from China in December 2008. They were "nude" photographs. The photographs were not displayed at trial; the judge determined plaintiff's description was sufficient.
We consider first defendant's claim that plaintiff's complaint did not set forth a prima facie case of domestic violence and that by allowing plaintiff to proceed on that complaint, the judge undermined and trivialized the purpose of the PDVA.
As noted above, plaintiff filed her complaint on April 3, 2009. In that complaint, plaintiff charged defendant, whom she identified as her former husband, with harassment and stalking. She alleged that on April 1, 2009, her friend received pictures similar to those defendant had sent to her mother and that on March 30, 2009 her ex-boyfriend received similar pictures in the mail. She also said that defendant was attending FDU despite his agreement to delay his studies until September 2009. Finally, she asserted that on January 7, 2009, defendant called her cell phone and told her he knew where she was, that he was attending FDU, and that on January 25, 2009, the gas tank of her car was filled with water while parked in a lot at FDU. Plaintiff expressed her concern that "his harassing behavior [was] escalating."
Plaintiff's complaint also contained a summary of prior incidents of domestic violence. Those allegations included assertions that defendant had punched her in the mouth, hit her on her arms and head, pulled her hair and kicked her in the leg; threatened to have her deported; moved her car and taken her belongings; sent nude photos to her mother; and threatened to post nude photos of her on the internet and send those photos to her boyfriend.
Domestic violence is defined in N.J.S.A. 2C:25-19 to include acts of harassment, N.J.S.A. 2C:33-4, and stalking, N.J.S.A. 2C:12-10, perpetrated by a former spouse against his or her former spouse. N.J.S.A. 2C:25-19a, d. Harassment can be established by proof that the person, acting "with purpose to harass another," "[engaged] 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:33-4c. Prior acts and threats are to be considered in assessing the defendant's purpose. See McGowan v. O'Rourke, 391 N.J. Super. 502 (App. Div. 2007) (addressing a mailing of photographs and threats of additional dissemination); Pazienza v. Camarata, 381 N.J. Super. 173, 183 (App. Div. 2005); A.R. v. M.R., 351 N.J. Super. 512, 520 (App. Div. 2002) (concluding that although the content of the phone calls defendant made was not harassing, the simple act of placing the calls was harassing in the circumstance - the victim had fled to the safety of her sister's home after a brutal beating and a threat to kill).
The arguments defendant offers to demonstrate the insufficiency of plaintiff's allegations and their triviality warrant no further discussion. R. 2:11-3(e)(1)(E).
The question remains whether the evidence plaintiff presented was sufficient to prove her allegations. The judge found that plaintiff proved harassment by demonstrating that defendant purposely disseminated private photographs of plaintiff taken during the marriage.
Defendant argues that plaintiff did not present sufficient competent evidence to permit the judge to find that defendant harassed plaintiff by mailing photos of her to her acquaintances. Plaintiff's identification of defendant's handwriting was sufficient to permit the judge to find that defendant addressed and mailed the envelopes. Storm v. Hansen, 41 N.J. Super. 249, 254 (App. Div. 1956). The only significant question is whether there was sufficient competent evidence to permit a finding that the pictures plaintiff described were in the envelopes when the addressees received them. Without adequate proof of that fact, the judge's determination that defendant harassed plaintiff by disseminating the photos could not be affirmed. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).*fn2
There is no direct evidence establishing that the photos were in the envelopes when they were received. "Witnesses, other than experts, cannot testify unless they have 'personal knowledge' of the matter, N.J.R.E. 602 . . . ." State v. Chen, 402 N.J. Super. 62, 79 (App. Div. 2008), certif. granted, 197 N.J. 477 (2009). "This 'requirement of firsthand knowledge . . . represents a most pervasive manifestation of the common law insistence upon the most reliable sources of information . . . .'" Ibid. (quoting Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592, 113 S.Ct. 2786, 2796, 125 L.Ed. 2d 469, 482 (1993) (quoting Advisory Committee's Notes on Fed. R. Evid. 602, 28 U.S.C. App., p. 755) (internal quotation omitted))). "'A person who has no knowledge of a fact except what another has told him [or her] does not, of course, satisfy the present requirement of knowledge from observation.'" Neno v. Clinton, 167 N.J. 573, 585-86 (2001) (quoting McCormick on Evidence § 10 (5th ed. 1999)).
The judge could not rely on an inference that plaintiff knew, from statements made by the recipients of the envelopes, that the pictures were inside the envelopes when they were received. Because the recipients did not testify, any inference based upon assertions they made to that effect, whether expressly or impliedly by their conduct, would be impermissibly based upon inadmissible hearsay. See State v. Bankston, 63 N.J. 263, 271 (1973); State v. Spencer, 319 N.J. Super. 284, 305 (App. Div. 1999); N.J.R.E. 801(a) (defining statement, for purposes of the hearsay rule, to include oral and written assertions and "nonverbal conduct" the person intends as "an assertion"). Accordingly, the judge could not rely on assertions of the recipients conveyed by their delivery of the envelopes and pictures to plaintiff.
There was, however, competent evidence sufficient to permit the judge to infer that these pictures were in the envelopes. Plaintiff's testimony, which the judge credited, was that she "received these envelopes with the pictures inside of [them.]" The judge correctly concluded that plaintiff had the personal knowledge essential to testify about her receipt of the envelopes and pictures. N.J.R.E. 602. Thus, the judge could find that the recipient who gave plaintiff the photos had received them.
Other testimony and evidence presented by the parties gave rise to additional reasonable inferences, which in combination, permitted a finding that the photographs given to plaintiff were given to her friends by defendant, in the envelopes he addressed. The evidence was that no one other than the parties was present when the photos were taken and no one else had been given copies. The judge found that no one else "had copies" and, crediting plaintiff's testimony that she received the photos and the envelopes from the addressees, the judge concluded that no one but defendant "would have the wherewithal to send them to [plaintiff's] boyfriend and other people." The inference was further supported by evidence of defendant's intent to use the photos to injure plaintiff - his threats to disseminate them and his letter to plaintiff referencing pictures. The judge referred to that evidence in her decision.
The judge did not suggest that her determination was based upon inferences derived from inadmissible hearsay, and her determination is adequately supported without reference to that hearsay. In short, the fact about which plaintiff lacked personal knowledge - that the photographs were disseminated to the recipients in the envelopes addressed by plaintiff - was inferable from the circumstantial evidence.
We cannot conclude, as a matter of law, that direct evidence of the fact that the photographs were in the envelopes when they were mailed was required for plaintiff to prove that fact by a preponderance of the evidence. See N.J.S.A. 2C:25-29a (stating the standard of proof). Our cases approve of findings supported by circumstantial evidence and inferences. "[R]ules of ordinary reasoning" govern the worth of circumstantial evidence, and the question of inferences that may be drawn is "one of logic and common sense." See State v. Samuels, 189 N.J. 236, 246 (2007) (internal quotations omitted). Even where proof beyond a reasonable doubt is required, factual findings may rest on "interconnected inferences" so long as each inference is "reasonable on the evidence as a whole." Ibid. (internal quotations omitted). The question whether the pictures were in the envelopes is analogous to the requirement of authentication, which is "satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901. The persuasiveness of the proof is a matter for the finder-of-fact. Samuels, supra, 189 N.J. at 246.
In the absence of legal error, we must recognize "the family courts' special jurisdiction and expertise in family matters" and "accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). In this case, the judge's factual findings are supported by adequate competent evidence and her evaluation of the credibility of the parties; we have no reason to disturb them. Ibid.
Relying on N.J.R.E. 1002, defendant also argues that plaintiff, who acknowledged that she was in possession of the photos that she claimed defendant disseminated, was required by N.J.R.E. 1002 to introduce the photographs into evidence.
N.J.R.E. 1002 applies when a picture is offered to "prove the content of a . . . photograph." But the issue in this case was not whether plaintiff had posed for pictures in a state of undress, that fact was undisputed. The truth and accuracy of the photographs was not in question and the applicability of N.J.R.E. 1002 in this circumstance is not entirely clear. See Nerney v. Garden State Hosp., 229 N.J. Super. 37, 39 (App. Div. 1988) (discussing a circumstance in which testimony describing the appearances of a writing was sufficient).
There is no reason to resolve the question raised by defendant's reliance on N.J.R.E. 1002. Even if we were to assume that it was error for the judge to permit plaintiff to describe the photos without displaying them in court, we could not conclude that the error was capable of producing an unjust result. R. 2:10-2. The disputed issue was not whether the envelopes plaintiff produced in court contained photos of herself in a state of undress but whether the photos plaintiff presented were in the envelopes when defendant sent them to one or more of her friends. Examination of the photographs could not have informed the judge's resolution of that disputed fact.