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E.B. v. J.B.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 19, 2010

E.B., PLAINTIFF-APPELLANT,
v.
J.B., DEFENDANT-RESPONDENT
J.B., PLAINTIFF-RESPONDENT,
v.
E.B., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket Nos. FV-19-449-09 and FV-19-452-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 10, 2010

Before Judges Reisner and Chambers.

In these back-to-back cases,*fn1 E.B. appeals from the June 24, 2009 order entered in the case of E.B. v. J.B., Docket No. FV-19-449-09, dismissing his domestic violence complaint against J.B., his wife. He also appeals from the June 24, 2009, final restraining order entered against him in the case of J.B. v. E.B., Docket No. FV-19-452-09, and from the related orders of July 8, 2009, and July 27, 2009, awarding J.B. attorney's fees and lost wages. We affirm the dismissal of E.B.'s domestic violence complaint and remand the domestic violence case brought by J.B.

I.

The orders arise from two companion domestic violence complaints that E.B. and J.B. filed against each other in April 2009. E.B. filed his complaint against J.B. on April 13, 2009, and obtained a temporary restraining order against her. His complaint was based on an incident that took place that day.

J.B. filed a domestic violence complaint against E.B. on April 15, 2009, and obtained a temporary restraining order against him. Her complaint was based on a series of incidents that took place from February 14, 2009, until April 9, 2009.

At the time the events set forth in the complaints occurred, the parties had been married twenty-one years, and a divorce action was pending. Although J.B. was seeing another man at the time, for many of the events, she was still living in the marital home, on and off. The parties had two daughters who were alienated from J.B. One daughter was away at college, and the second daughter, a teenager, lived in the marital home with her father.

The cases were tried together and took four days of trial testimony. Both sides were represented by counsel. Both E.B. and J.B. testified and presented divergent facts on many of the alleged incidents of domestic violence. The teenage daughter testified on behalf of her father, E.B., confirming his account of certain events. E.B. also presented the testimony of a police officer and an eyewitness to confirm his testimony that he had not engaged in any acts of domestic violence at a tavern on February 17, 2009.

The trial court placed an oral decision on the record at the conclusion of the hearing and issued a written supplemental decision the next day. The trial court found J.B. to be a credible witness and accepted her version of events. The trial court granted J.B.'s application for a final restraining order, attorney's fees, and lost wages. The trial court denied E.B.'s application for a final restraining order. E.B. appeals from these rulings.

II.

A trial court considering a domestic violence complaint must first "determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Here, the predicate act asserted by E.B. in his complaint and the predicate acts found by the trial court on J.B.'s complaint were harassment under N.J.S.A. 2C:33-4. The statute, in pertinent part, provides that a person commits an act of harassment:

[I]f, 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.

A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received. [N.J.S.A. 2C:33-4(a) to (c).]

Once the court has determined that a defendant has committed a predicate act, it then must decide whether to issue a restraining order to protect the victim. Silver v. Silver, supra, 387 N.J. Super. at 126. The commission of a predicate act does not automatically require that a restraining order be issued. Id. at 126-27. Rather, the court will only issue a restraining order if it is "necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.

When considering J.B.'s application for a final restraining order, the trial court determined that E.B. had engaged in the following conduct:

1. The incident at [the tavern] referenced above [slammed a bottle down next to her at the tavern, stared at her, and tried to take an unwanted picture of her].

2. Removing all bedroom doors and locks, specifically the door to [the daughter's] bedroom while knowing that [J.B.], pursuant to the Consent Order, was entitled to sleep in [the daughter's] room on the night the door was removed. This was in the wake of the Consent Order evidencing that the parties agreed implicitly they would each have his or her privacy and own space.

3. Not letting [J.B.] have access to the master bedroom/bathroom to retrieve her glasses, contact lens solution and sleepwear though the parties' Consent Order permitted her access.

4. Stripping the bedding in [the daughter's] room, where [J.B.] was to sleep.

5. Taping the spray nozzle in the kitchen sink so that [J.B.] was soaked with water.

6. Icing the keyhole to the door to the house, effectively blocking his wife's access through the usual ingress.

7. Following [J.B.] around on occasions when they were both in the house.

8. Taking the recorder and taping over [J.B.'s] recordings.

9. Running the vacuum in the early morning hours and not allowing [J.B.] a quiet place to sleep the night before a work day.

10. Thumb tacking the TRO pink notice to the wall in the place previously occupied by their framed marriage certificate.*fn2

The trial court determined that this conduct constituted harassment under N.J.S.A. 2C:33-4(c), that is, a "course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person."

E.B. contends that the evidence does not support these findings; that the trial court "failed to give due weight to [J.B.'s] pattern of behavior evidencing her intent to create confrontations and instigate conflicts"; that the trial court's credibility findings were not supported by the record; and that the trial court's decision rested on a tavern incident not alleged in J.B.'s complaint. E.B. also contends that J.B. failed to meet her burden to prove harassment and a need for a final restraining order.

When reviewing a trial court's fact finding, the scope of our review is limited. Cesare v. Cesare, 154 N.J. 394, 412 (1998). In particular, we defer to the trial court's determination on the credibility of the witnesses, because that court has had the opportunity to observe the witnesses and hear them testify, and thus is in a better position to judge their truthfulness. Ibid. We will not disturb a trial court's factual findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Rova Farms Resort, Inc. v. Investors Inc. Co. of Am., 65 N.J. 474, 484 (1974)).

With this standard in mind, we have reviewed the record with respect to each of the trial court's findings, to determine if they are supported by the testimony of the witnesses in light of the trial court's determination that J.B. was the more credible witness.

Despite the deference given to the trial court, the record does not support the trial court's findings with respect to the spray nozzle incident and the icing of the door keyhole. J.B. had testified that one morning she was sprayed in the face when using the kitchen sink and discovered that the spray hose handle had been taped down to cause this. On another evening, when trying to get into the house, she discovered the front door lock frozen, and so she had to use the back door to enter the house. E.B. denied taping the spray or icing the lock. No other evidence was presented regarding these events.

Based on these proofs, the record does not support a finding that E.B. did this. As the trial court noted, these were "prank[s]" and indeed recognized that the spraying incident could have been done by the teenage daughter living at home. The record indicates that the daughter had great antipathy toward her mother. She called DYFS alleging that her mother had assaulted her; by the mother's own testimony, on one occasion, the daughter threw a sports drink in her mother's face; not only did the daughter refuse to eat food cooked by the mother, but she would not eat food from a container from which the mother had taken food, such as a bag of pretzels. In light of these circumstances, the proofs are not sufficient to establish that E.B. committed these acts.

In addition, after reviewing all of the evidence regarding the tavern incident, the evidence supporting a finding that E.B. engaged in inappropriate conduct there is weak. J.B. initiated the tavern incident. By her own admission, she went to the tavern and sat with the man she was seeing, and she acknowledged that E.B. was already there. A police officer, responding to her complaint, went to the tavern that evening and found no indication that E.B. had created a problem. An eyewitness testified to the absence of harassing conduct on E.B.'s part. Further, the fact that E.B. took the wedding invitation off the wall and placed a TRO notice there in its place is not necessarily evidence of an intent to harass. As E.B. explained, he put the TRO there because he was hurt.

However, as the trial court noted, the spraying incident, the iced lock, the TRO on the wall, the incident at the tavern, even the vacuuming late at night, were all "de minimis," and the trial court did not place much weight on these events. Rather, the more significant harassing conduct found by the trial court was E.B.'s removal of the door one night on the bedroom J.B. was using, not letting J.B. retrieve her personal things from the bedroom on one occasion, taking her tape recorder, and following her around the house.

The trial court concluded that E.B.'s conduct was intentionally designed "to make things at the marital residence so miserable for his wife that she would vacate the home," which she eventually did. Given these proofs, we cannot say that the trial judge's conclusion that E.B. had engaged in harassment was "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., supra, 65 N.J. at 484).

While the trial court found that E.B. committed the predicate act of harassment, it did not take the second step in its analysis and determine whether a restraining order was "necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Silver v. Silver, supra, 387 N.J. Super. at 127. A restraining order must not automatically be issued simply because one of the enumerated predicate acts of domestic violence has occurred. Id. at 126-27.

Often this second step is "perfunctory and self-evident." Ibid. But not so under the facts of this case. With the exception of the Tavern incident which the trial court found to be de minimus, all of the conduct the court found harassing was derived from the conflict generated by J.B.'s presence in the marital home at a time when the parties were going through a divorce and she was seeing another man. None of the incidents involved violence or the threat of violence; most were petty annoyances. Since J.B. has moved out of the marital home, and it is not clear from this record that there is any reason for her to be there now, whether a final restraining order is necessary to "protect the victim from immediate danger or to prevent further abuse", ibid., is not apparent from the record before us. We therefore must remand in order that this analysis may be made. Given the passage of time since the hearing, the trial court at its discretion may reopen the record. We do not retain jurisdiction.

III.

E.B. also contends that the trial court erred in failing to grant his application for a final restraining order against J.B. He contests the judge's credibility findings and maintains that he met his burden of proving J.B.'s harassing conduct toward him.

E.B. asserts as the predicate act, J.B.'s conduct on April 13, 2009, which he maintains constitutes harassment. At that time, the parties had recently reached an agreement through their attorneys that J.B. would give E.B. a courtesy notice before coming to the marital home. On the morning of April 13, 2009, J.B., by her own admission, sent E.B. an email at about 8:40 a.m. that, after school, she would stop by the house to drop off medication for their daughter in the mailbox. At 2:52 p.m., she sent E.B. a text message stating that when she came by, she also wanted to discuss a financial account with him. She arrived at the house twenty-five minutes after sending that message. She heard E.B. in the bedroom and pushed her way into that room, although she contended that she did not realize it had been barricaded. Once the door was open, she saw that the vanity bench had been blocking the door. She then called into the bathroom saying that she had come over to drop off the medicine, discuss a financial account, and to talk to E.B. about having adequate food in the house. She contended that when E.B. opened the bathroom door, he was fully clothed, although the shower was running, and that he yelled and screamed at her. She admitted to raising her voice and calling him an "ass" and then leaving.

E.B. contended that he did not receive the second message that J.B. would come to the house. He was taking a shower when she began banging on the bedroom door and yelling. After she pushed her way into the bedroom, he opened the door, saw that she was there, shut the door again, and locked it. She then began yelling and banging on the bathroom door, saying she was there to drop off medicine, that there was no food in the refrigerator, and that he was an "ass." His audio tape of J.B. on this occasion was played for the court.

The trial court believed J.B.'s version of events, and concluded that E.B. knew J.B. was coming into the house and was waiting with a tape recorder on that day. The trial court denied E.B.'s request for a final restraining order and dismissed his complaint.

E.B. contends that the April 13, 2009 incident should be viewed in the context of J.B.'s prior conduct and prior acts of domestic violence. He contends that on February 17, 2009, J.B. went to a tavern where she knew he would be, sat with her boyfriend, and made an obscene gesture at him. On March 10, 2009, she went to the marital home where she called E.B. names and spit in his face. On March 23, 2009, J.B. arrived at the marital home at 1:00 a.m. and demanded that E.B. stop vacuuming; unplugged the vacuum when he did not stop, and called the police when he plugged it back in. The police took no action. He also asserted that J.B. either failed to appear at the marital home at times she said she would be there or she would stay longer than she had said she would be there. E.B. testified that he believed J.B. was attempting to get him alone in the house in order to have a pretext to make a domestic violence claim against him or get him arrested.

Certainly, allegations of domestic violence must be viewed in the context of the previous history of domestic violence between the parties. Silver v. Silver, supra, 387 N.J. Super. at 124. However, as noted above, the trial court found that the tavern confrontation and the vacuuming incident were evidence of E.B.'s intent to harass J.B., not her intent to harass him. The trial court did not find that the asserted predicate act involving the April 13, 2009 incident occurred in the way that E.B. said it did. The trial judge believed J.B.'s version of events, and we must defer to the trial court's findings of credibility. Cesare v. Cesare, supra, 154 N.J. at 412. Based on these proofs, the trial court's rejection of E.B.'s claim of domestic violence was not "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Rova Farms Resort Inc. v. Investors Ins. Co. of Am., supra, 65 N.J. at 484).

We affirm the dismissal of the complaint in E.B. v. J.B., Docket No. FV-19-449-09. We remand the case of J.B. v. E.B., Docket No. FV-19-452-09. We do not retain jurisdiction.


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