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K.M.G. v. E.W.F.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 17, 2010

K.M.G., PLAINTIFF-RESPONDENT,
v.
E.W.F., JR., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-01655-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 24, 2010

Before Judges Fisher and Sapp-Peterson.

Defendant appeals from a March 19, 2009 final restraining order (FRO) issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. We affirm.

On February 4, 2009, plaintiff filed a complaint in the Chancery Division, Family Part, in Bergen County seeking the issuance of a Temporary Restraining Order (TRO). Plaintiff alleged that she had been the victim of an act of harassment, namely, defendant, through online posting, was "referring to her" and also stating that "he is going to do the one thing left he wants to do and that is to get revenge." Plaintiff alleged further that defendant in the past had kicked her and "took a knife out on [her]" in the summer of 2005. The court issued the TRO and the matter was listed for hearing.

At trial, plaintiff testified that the parties started dating in 2005 when she was a sophomore and had dated regularly up until 2007. During 2008, plaintiff indicated that they saw each other but that "it wasn't a relationship." She admitted, however, that during some of those occasions, they did engage in sexual relations. She explained to the court that she wanted to remain friends with defendant. They spent New Year's Eve together in 2008, because she was at his father's home with defendant's sister and another friend. She testified that defendant had called her on New Year's Eve and wanted to come to her home. She suggested that he come to his father's house because she did not want him to come to her home. This was the last time that plaintiff saw defendant before learning about his online postings. The postings were not sent directly to her, but upon learning about the postings, she logged into defendant's page to read the postings because she was concerned about her well-being. Although the postings did not refer to plaintiff directly, plaintiff testified that she was the girl referenced in the postings.

Defendant testified that the postings about which plaintiff complained had been posted by him during a time when he was depressed, angry, "up and down," and that he wrote about his feelings in the postings. He denied that the writings were intended to threaten plaintiff or that the writings were directed at her. As for the reference to revenge in the writings, he testified that he "meant . . . more or less, the pain and suffering that they would feel by my loss and me no longer being here."

At the conclusion of the hearing, the trial court issued an oral opinion finding that defendant's postings rose to the level of harassment by a preponderance of the evidence and that the issuance of the FRO was necessary to protect plaintiff against future acts of violence. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

I. THE EVIDENCE PRESENTED AT TRIAL WAS NOT SUFFICIENT TO SUPPORT A FINDING BY THE COURT THAT THE DEFENDANT COMMITTED AN ACT OF HARASSMENT PURSUANT TO N.J.S.A. 2C:33-4.

A. PLAINTIFF FAILED TO PRESENT ANY EVIDENCE TO SUPPORT A FINDING THAT THE DEFENDANT'S PURPOSE IN WRITING ONLINE LIVEJOURNAL ENTRIES WAS TO HARASS THE PLAINTIFF.

B. PLAINTIFF FAILED TO PROVE THE ESSENTIAL ELEMENTS OF N.J.S.A. 2C:33-4(a) AND, THEREFORE, THE COURT ERRED IN FINDING THAT DEFENDANT VIOLATED THE STATUTE.

C. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT WROTE HIS LIVEJOURNAL ENTRIES WITH PURPOSE TO ALARM OR SERIOUSLY ANNOY THE PLAINTIFF PURSUANT TO N.J.S.A. 2C:33-4(c).

D. DEFENDANT DID NOT ACT UPON HIS WRITTEN SENTIMENTS IN A HAR[]ASSING MANNER AND, THEREFORE, DID NOT COMMIT AN ACT WHICH IS PROHIBITED BY N.J.S.A. 2C:33-4.

II. THE EVIDENCE INTRODUCED AT TRIAL WAS NOT SUFFICIENT TO SUPPORT THE TRIAL COURT'S FINDING THAT THE ISSUANCE OF A FINAL RESTRAINING ORDER WAS NECESSARY FOR THE PROTECTION OF THE PLAINTIFF'[S] SAFETY, HEALTH AND WELFARE.

III. THE DEFENDANT'S POSTINGS ON LIVEJOURNAL ARE NOT THE TYPE OF COMMUNICATIONS WHICH THE NEW JERSEY STATE LEGISLATURE INTENDED TO PROSCRIBE OR PROHIBIT IN ENACTING THE PREVENTION OF DOMESTIC VIOLENCE STATURE.

After carefully reviewing the record in the light of the arguments presented, we affirm substantially for the reasons articulated by Judge Lisa Perez Friscia in her oral opinion delivered on March 19, 2009. We add the following comments.

To warrant the issuance of a domestic violence restraining order based on a violation of N.J.S.A. 2C:33-4(c), a plaintiff must establish "the purpose to harass, D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994); E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990), along with a course of alarming conduct or repeated acts intended to alarm or seriously annoy another, Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988)." Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995).

Here, the trial judge found:

And so I understand much of this is terms of art. But, for this [c]court's findings, I accept as credible and true her testimony as to her first receipts of a message from him, wherein [d]efense is right, in that - - and I accept as true, that much of his notations and postings are regarding harming himself.

But it goes beyond that. It goes beyond his stating that he wishes he was dead. The guy thinks of killing himself. He has had a . . . mental breakdown. The girl can't win against him.

If he was solely speaking as to the harm to himself, he wouldn't be perpetually placing upon her a threat in the context of what can happen to others and the repercussions for her based on what he would do to himself.

And I won't elaborate on all of them, but I'll just highlight on some that this [c]court truly finds demonstrative and credible based on plaintiff's testimony that they put her in fear, such as, "Ticktock, ticktock, more time you idiots wait, the more ammo I build up or I'm going to - - or am I going to go hunting."

Now, one of these type of . . . postings alone maybe one would say [is] not harassment. The totality of all of them and the circumstances[,] this was the nature of their relationship for communication, and that was at Wednesday, January 28, 2009, quite demonstrative [to] this [c]court that he's making these postings, communicating with her in a manner that he knows [is] going to cause her annoyance or alarm.

I continue with, in reference to January 27th, where he refers to her as Tonks. And I totally do not find as credible Tonks is something you call her and other people as well. But it's something that plaintiff says clearly was meant for her, clearly she identified as and she responded with - - to you with at times. "Oh, this is so much more fun tha[n] I remember. Come out and play, Tonks, before I bury someone else."

So now, again, in a second posting, not are you talking about killing yourself, but burying somebody else. "I will gladly ruin what little humanity I have left for you and the suffering you have caused me."

Then, at 2:02 p.m., the next one. "Anyone else want to see what I can do?" And it goes on, "Come on, push me, I dare you."

Further down in the email, at another time, "You want me to react; you got it. It's about to get very cold."

Now, in and of itself, one of these or - - and testimony and [c]counsel argued about expletives or inappropriate remarks. Expletives and cursing are more commonplace today than ever. And so somebody using the word of "Fuck" or "Bitch" to this [c]court doesn't rise to the level of harassment, maybe disharmony, maybe inappropriate, maybe language that one raise[s] an eyebrow at. Unfortunately, I think we've raised eyebrows less at it as it becomes more common.

But, in the context of things where you threaten to harm someone or get ammo or react or kill, then it becomes harassment.

I further find that . . . let me get the date - - the 21st of 2009, "Payback is a bitch, and I'm the bitch that's paying you back. I am a true Scorpio. And the first thing it says about us is, Beware the Scorpio sting. There is a reason for that, and it's a shame I won't be here to see it fucking sting you."

So, yes, you could be contemplating harming yourself, but it's what you want to see cause her pain. And I, well, truly watched as you testified, because I think you were relaying when you said you were angry. And I don't doubt that you were angry. I don't doubt that you had unhappiness from the fact that your relationship ceased.

But your conduct went beyond vexing behavior, beyond inappropriate behavior. It's threatening. And, clearly, she found it to be harassing in nature, as any objective person [would].

We are satisfied that Judge Perez Friscia properly found that defendant's course of conduct evidenced a "purpose to harass." N.J.S.A. 2C:33-4. As our Supreme Court has noted, "a purpose to harass may be inferred from the evidence presented."

State v. Hoffman, 149 N.J. 564, 577 (1997). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] 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 v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Here, Judge Perez Friscia's conclusion that defendant's actions toward plaintiff were done with the "purpose to harass" her is fully supported by substantial, credible evidence in the record.

Affirmed.

20100617

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