July 28, 2010
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, No. FV-02-001751-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 25, 2010
Before Judges Wefing, Grall and LeWinn.
Defendant appeals from a final restraining order entered under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. After reviewing the record in light of the contentions advanced on appeal, we have concluded that we are constrained to reverse.
By the time of the hearing before the trial court, the parties had been married for twenty-three years and had seven children, ranging in age from twenty-three to five. Defendant is a self-employed construction contractor. Plaintiff does not work outside the house, but she does home school the younger children. It is clear from the testimony that religion plays a large role in their lives and that many of their activities and friends revolved around their church. It is also clear that defendant has been the dominant force throughout the marriage; the trial court in its oral opinion noted that both parties appear to subscribe, for religious reasons, to the view that a wife is to be submissive to her husband.
Plaintiff's domestic violence complaint raised two theories: false imprisonment, N.J.S.A. 2C:25-19a(6), and harassment, N.J.S.A. 2C:25-19a(13). The trial court found plaintiff had failed to establish false imprisonment but had established harassment and granted her request for a final restraining order. This appeal followed. On appeal, defendant raises the following contentions:
WHERE NO PHYSICAL VIOLENCE OR HARM IS ALLEGED OR THREATENED, EITHER RECENTLY OR PREVIOUSLY, VERBAL CRITICISMS WHICH MAY UPSET PLAINTIFF EMOTIONALLY OR CAUSE PLAINTIFF TO FEEL UNLOVED, MAY BE GROUNDS FOR DIVORCE, BUT DO NOT CONSTITUTE ACTS OF DOMESTIC VIOLENCE, ESPECIALLY ABSENT AN INTENT OR PURPOSE TO HARASS, ANNOY OR ALARM.
IN ABSENCE OF EVIDENCE OF IMMEDIATE DANGER TO PLAINTIFF, OR FEAR OR THREAT OF PHYSICAL VIOLENCE, AND PLAINTIFF'S EVIDENCE ESTABLISHES ONLY THAT THE PARTIES HAVE EXPERIENCED FINANCIAL DIFFICULTIES AND DIMINUTION OF INTIMATE RELATIONS, AND PLAINTIFF COMPLAINS ONLY THAT DEFENDANT DEMEANS HER PHYSICAL APPEARANCE AND HAS A CONTROLLING PERSONALITY, PLAINTIFF'S COMPLAINT UNDER THE PDVA MUST BE DISMISSED, REGARDLESS OF THE COURT FINDING PLAINTIFF CREDIBLE AND DEFENDANT NOT CREDIBLE.
Plaintiff sought relief under the domestic violence act following an incident which occurred on February 19, 2009. The parties lived in a rented house in northern Bergen County. Their regular practice called for defendant to give plaintiff money which she would deposit into an account and use to pay the rent and similar household expenses. The couple's oldest daughter lives in British Columbia and was about to give birth to her first child. Plaintiff wanted to fly to British Columbia to be present for the birth of their first grandchild. Defendant objected, ostensibly for reasons of money. Defendant claimed plaintiff was going to use the rent money for this trip, although she said that someone had given her the funds. Defendant testified he then told her that if she refused to use that money to pay the upcoming rent, he would have no recourse but to sell the family's van to raise the necessary funds. He said he did so to ward off the possibility of eviction. He also informed their older children of this discussion, telling them their mother was "in rebellion." After this discussion, she discovered that he had gone to her purse and had removed the van's keys, her wallet and passport. When she demanded their return, he did not respond. It was that action which led to her going to the police the next day and which formed the basis for her allegation of false imprisonment. Defendant returned the items to her in response to the directives of the police who came to the house.
During the course of their testimony, the parties provided the trial court with a history of their relationship over the years. Based upon that testimony, the trial court found a pattern of controlling behavior that it found fit within the statutory definition of harassment. While the finding that defendant attempted to dominate and control plaintiff is clearly supported by the record, we are unable to agree that in the context of this matter, that behavior constitutes domestic violence.
Plaintiff has, over the years, struggled with her weight. Defendant has not acknowledged the effect of this on her sense of self-esteem. He has rather contributed to the problem by making comments about her weight, even in the presence of others. In support of her contention with respect to this issue, plaintiff presented an e-mail exchange between the parties from 2005, at a time when plaintiff was expecting their youngest child.
The parties are no longer physically intimate. Plaintiff testified that defendant had withdrawn from her while defendant testified that plaintiff had withdrawn from him. The trial court, however, in the course of its oral opinion, noted that it found plaintiff to be the credible witness. Plaintiff did agree that even when they occupied separate bedrooms, defendant would bring her tea every morning.
There was no testimony that defendant ever caused plaintiff physical harm or threatened plaintiff with such harm. Plaintiff did testify that at times she feared that defendant would attempt to smother her during the night, but she provided no factual basis for such a fear. She also testified that she was concerned because her sons had a knife collection, but it was clear that the collection was started with her knowledge and approval and that she introduced them to the skill of knife throwing. The trial court correctly found that this collection was not relevant to any issue of alleged domestic violence.
Defendant had no weapons. Plaintiff at an unspecified point had brought a handgun and ammunition to the house. She said she did so because the children were involved in military and civil air patrol activities and she was interested in learning how to use it. Defendant insisted they be removed from the house.
In its oral opinion, the trial court summarized the testimony presented and first concluded that plaintiff had failed to establish false imprisonment. This was clearly correct. False imprisonment requires restraining "another unlawfully so as to interfere substantially with his liberty." N.J.S.A. 2C:13-3.
After concluding that the incident of February 19 did not satisfy the statutory elements of false imprisonment, the trial court turned to whether plaintiff had proven harassment.
N.J.S.A. 2C:33-4 sets forth the elements of harassment:
[A] person commits [harassment] if, 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.
The trial court in its oral opinion rested its decision solely on subsection (a), communications made in a "manner likely to cause annoyance or alarm[.]" The trial court was clearly disturbed by what it perceived as defendant's attempts to control and dominate the behavior of his wife and concluded that the pattern of controlling behavior constituted domestic violence and posed a danger to plaintiff. The trial court did not, however, make a finding that defendant acted with purpose to harass his wife, an essential element of harassment. State v. Hoffman, 149 N.J. 564 (1997).
The Supreme Court in Hoffman, moreover, made clear the distinction between a claim of harassment under subsection (a) of the statute, at issue here, and a claim of harassment under subsection (c) of the statute. Writing for the Court, Justice Coleman stated that "in enforcing subsection (a) of the harassment statute, we must focus on the mode of speech employed. That subsection of our statute, like those elsewhere, is 'aimed, not at the content of the offending statements but rather at the manner in which they were communicated.'" Id. at 583 (quoting State v. Finance Am. Corp., 182 N.J. Super. 33, 39-40 (App. Div. 1981)). Here, however, the trial court, in finding domestic violence, focused on the content of the communications, not on the manner in which they were delivered.
While we can understand why the trial court found defendant's conduct toward his wife, belittling her appearance and refusing to communicate with her on an equal basis, to be unacceptable, we are unable to equate it with the offense of harassment. This is particularly so when the parties appear to base much of what the court deemed unacceptable upon religious grounds.
By reversing the final restraining order, we by no means imply that plaintiff is without recourse and must resign herself to continued submission to defendant's will. Her recourse, however, lies in an action for divorce, not in a domestic violence restraining order.
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