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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...