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E.D v. P.D

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 13, 2010

E.D., PLAINTIFF-RESPONDENT,
v.
P.D., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0243-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 1, 2010

Before Judges Fisher and Simonelli.

Respondent has not filed a brief.

Defendant appeals from a final restraining order (FRO) entered against him and in favor of his ex-wife, pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Because the predicate acts were not alarming or seriously annoying but akin to what we have described as "ordinary domestic contretemps," Corrente v. Corrente, 281 N.J.

Super. 243, 250 (App. Div. 1995), because the judge did not find defendant acted with the purpose to harass, and because the judge did not find restraints were necessary to protect plaintiff from immediate danger or to prevent further abuse, we reverse.

The trial consisted only of the testimony of the parties, who represented themselves. Although he did not specifically enumerate the acts of domestic violence found to have occurred, we discern from the judge's credibility findings that he found all the acts alleged by plaintiff to have occurred as plaintiff described them; accordingly, we will assume the judge found the following facts, which we take from plaintiff's testimony:

-- on July 24, 2009, defendant called plaintiff "repeated[ly]";

-- on July 25 and 26, 2009, defendant made "several" telephone calls to plaintiff while she was at work; she told him to send an e-mail, but he "continued to call, refused to send an e-mail, [and] was yelling about" whether she had made payments necessary for their children to play soccer and engage in cheerleading; during these telephone calls, defendant was "very aggressive and hostile";

-- on August 5, 2009, plaintiff was standing outside a yoga studio when defendant "stopped his car, rolled down his window and yelled . . . [']get your ass home and take care of your kids[']";

-- on August 11, 2009, defendant telephoned plaintiff at work again to complain about the soccer and cheerleading fees; according to plaintiff, "the phone call lasted a couple of minutes and I was trying to be business-like, as I was standing in my office and I said to him, [']can you please slow down?['] He said [']no, I won't slow down. If I slow down, I might get nice.['] And the phone call ended [with defendant] saying, 'get it done, bitch,' and he hung up";

-- on August 12, 2009, plaintiff answered their daughter's cellphone; defendant was on the line and "insult[ed] and harass[ed]" plaintiff about her "financial history, [her inability] to pay bills";

-- later on August 12, 2009, while returning home from yoga class, plaintiff's vehicle passed defendant's; he "slowed down, . . . stared at me, put up his middle finger and glared, just a crazed look on his face."

Based on these implicit findings, the judge entered an FRO.

Defendant appealed, raising the following arguments for our consideration:

I. THERE EXISTS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO SUSTAIN THE FINDING THAT APPELLANT COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST RESPONDENT.

A. THE TRIAL COURT FAILED TO MAKE A SPECIFIC FINDING AS TO WHAT WAS DONE TO CONSTITUTE A PREDICATE ACT OF DOMESTIC VIOLENCE.

B. EVEN IF THE TRIAL COURT HAD MADE A FINDING THAT THE APPELLANT COMMITTED HARASSMENT, IT FAILED TO MAKE A SPECIFIC FINDING OF INTENT TO HARASS.

C. THE TRIAL COURT ERRONEOUSLY FOUND THAT THERE WAS A HISTORY OF DOMESTIC VIOLENCE.

II. THE TRIAL COURT DID NOT MAKE THE REQUIRED DETERMINATION THAT A FINAL RESTRAINING ORDER WAS NECESSARY TO PROTECT RESPONDENT FROM FUTURE ACTS OF DOMESTIC VIOLENCE.

III. THE TRIAL COURT ERRED BY FAILING TO FULLY CONSIDER WHETHER RESPONDENT WAS USING DOMESTIC VIOLENCE COMPLAINT TO GAIN AN ADVANTAGE IN THE PENDING FM AND DYFS MATTERS.

IV. THE CONDUCT OF THE PROCEEDINGS DEPRIVED THE APPELLANT OF HIS RIGHT TO A FULL AND FAIR HEARING.

V. THE CUMULATIVE EFFECT OF THE ERRORS MANDATE A REVERSAL OF THE ENTRY OF THE FINAL RESTRAINING ORDER.

Because we conclude (a) the judge did not find defendant acted with the purpose to harass, (b) the predicate acts were not of sufficient significance, and (c) the judge failed to find an FRO was necessary to prevent an immediate danger or further abuse, the FRO must be reversed without our needing to reach defendant's other arguments.

A

To obtain an FRO pursuant to the Act, a plaintiff must first prove by a preponderance of the evidence that the defendant committed one of the predicate acts referred to in N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. See Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Here, we discern from the judge's oral decision that he viewed plaintiff's allegations as fitting either subsection (a)*fn1 or (c)*fn2 of N.J.S.A. 2C:33-4.*fn3 Harassment as defined in either subsection requires proof that defendant acted "with purpose to harass."

Certainly, an harassment claim does not require a statement from the defendant that he or she acted with an intent to harass the plaintiff. "A finding of a purpose to harass may be inferred from the evidence presented," which may be informed by "[c]ommon sense and experience." State v. Hoffman, 149 N.J. 564, 577 (1997). Here, the judge made no finding that defendant acted with this requisite purpose, nor may defendant's words and conduct be viewed as implicitly embodying a purpose to harass. Accordingly, in the absence of this "integral" finding, Corrente, supra, 281 N.J. Super. at 249, the judge's determination that defendant committed a predicate act cannot stand and the FRO must be reversed.

B

Even when viewed expansively, we cannot conclude from the judge's findings that defendant engaged in any communications or conduct that rose to the level of what the Legislature intended as "domestic violence." For example, in Corrente, the defendant threatened "drastic measure[s]," and later disconnected the plaintiff's telephone service; we held that communication and conduct could not be "characterized as alarming or seriously annoying." Id. at 249. In another case, we drew the same conclusion where the defendant said to the plaintiff, "I'll bury you," Peranio v. Peranio, 280 N.J. Super. 47, 55-56 (App. Div. 1995). And, where the defendant surreptitiously removed the plaintiff's belongings from their apartment and engaged in one occasion of shouting and door slamming, we likewise found no course of alarming conduct sufficient to constitute domestic violence. Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988). See also Kamen v. Egan, 322 N.J. Super. 222, 228 (App. Div. 1999) (holding that a single act of trespass, unaccompanied by violence or a threat of violence, was insufficient to justify issuance of an FRO).

Assessing the judge's opinion in the light most favorable to plaintiff, the evidence suggested only that defendant made multiple telephone calls to plaintiff about the payment of fees for the children's extracurricular activities, berated plaintiff and called her a "bitch," and made angry gestures and faces from a distance. Even had the judge found defendant spoke and acted with the purpose to harass -- which he did not -- these circumstances still failed to meet the standard necessary for entry of an FRO.

As then Judge (now Justice) Long stated for this court in Corrente, this type of conduct -- particularly during the course of matrimonial litigation, as here -- "was plainly never contemplated by the Legislature when it addressed the serious social problem of domestic violence." 281 N.J. Super. at 250. Instead, "the invocation of the domestic violence law" in this case, like Corrente, "trivialize[s] the plight of true victims of domestic violence and misuse[s] the legislative vehicle which was developed to protect them." Ibid.; see also Peranio, supra, 280 N.J. Super. at 56-57. In short, "[t]he domestic violence law was intended to address matters of consequence, not ordinary domestic contretemps such as this." Corrente, supra, 281 N.J. Super. at 250. We find those statements equally applicable here.*fn4

C

The FRO must also be reversed because the judge did not find restraints were necessary "to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127; see also Kamen, supra, 322 N.J. Super. at 228. As explained by Judge Fall in Silver, supra, 387 N.J. Super. at 126-27, the finding of a predicate act satisfies only the first step in a two-step process. Because "the Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence retraining order," plaintiff was obligated to prove and the judge was required to find that restraints were necessary to "protect the victim from an immediate danger or to prevent further abuse." Ibid. Although there are certain acts of domestic violence that may reveal such a need without a judge's express finding, when the claimed predicate act consists of harassment or other types of nonviolent conduct, the judge is required to provide a principled analysis of why a restraining order is necessary to protect the victim from danger or further abuse.

Absent an expressed holding, or other findings from which we might discern such an implicit determination, we must conclude that plaintiff failed to prove the need for an FRO even if the proofs permitted a finding that defendant committed the predicate act of harassment.

Reversed.


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