January 14, 2011
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-189-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011 - Decided Before Judges Lisa and Alvarez.
Defendant appeals from a final restraining order entered against him under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff. The predicate offense was harassment (N.J.S.A. 2C:33-4). See N.J.S.A. 2C:25-19a(13). Defendant argues that entry of the order was error because (1) the court abused its discretion by finding harassment based on the events of July 21, 2009, (2) the court abused its discretion by finding that defendant stalked plaintiff on July 21, 2009, (3) the court abused its discretion by retrying the incidents of a prior restraining order which had been dismissed after a prior hearing, (4) the court abused its discretion by determining that defendant should have only supervised parenting time with the parties' children, and (5) plaintiff forum shopped when she obtained a temporary and final restraining order in Ocean County.
We note initially that points (2) and (5) lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As to point (2), although the judge discussed the concept of stalking in rendering his decision, he was using the term generically and in the context of a characteristic of controlling behavior, but the judge did not make a finding that stalking was a predicate offense under the Act. As to point (5), defendant's assertion of forum shopping is purely speculative. We also note initially that the argument in point (4) is moot because, since the entry of the final restraining order in the matter now before us, a divorce action has been filed and the parenting time arrangements have been modified by the court in the divorce action and will continue to be subject to further modification in that action. Therefore, we will not address the parenting time issue in this opinion.
We reject the arguments defendant raises in points (1) and (3). Accordingly, we affirm the order under review.
The parties were married on June 23, 2000. They had three daughters, who were born in 2003, 2006, and 2008. They lived in Wayne, Passaic County.
Plaintiff filed the domestic violence complaint that is the subject of this appeal on July 21, 2009. The complaint alleged the following predicate act, identified in the complaint as "harassment:"
On 7/21/09 defendant contacted via cell phone the plaintiff and verbally harrassed [sic] her by calling numerous times and at all hours. Plaintiff advises defendant has a long history of mental health issues and is in fear of his possible actions.
The "prior history of domestic violence" section of the complaint alleged that a "TRO was issued prior but was dismissed at final hearing."
The complaint resulted in the issuance of a temporary restraining order by the Manahawkin Municipal Court, in Ocean County. The matter came before Judge Arnold B. Goldman in the Family Part on July 30, 2009 for a final hearing. Both parties testified. Plaintiff also produced the testimony of her cousin and of defendant's sister. Defendant produced a character witness. Plaintiff was represented by counsel. Defendant represented himself. Over defendant's objection, plaintiff was permitted to testify regarding the events that led up to the prior restraining order that had been dismissed after a final hearing. We begin our description of the relevant facts by describing those events.
The parties and their children went to Disney World in May 2009. While there, on May 9, 2009, defendant became very argumentative and verbally abusive toward plaintiff. He called her a "f---ing idiot" several times and a "fat, ugly b----." Defendant yelled at their six-year-old daughter at one point, and said demeaning things about plaintiff in the children's presence. For example, when the six-year-old child incurred a very minor injury while sliding into a pool, defendant became enraged and required the child to go to bed at about 4:00 or 4:30 p.m. While doing so, he told her that "when mommy and daddy get home, we're not living together." The child became upset and began to cry. Defendant told her he wished he never married plaintiff and wished they had never had the children. He proceeded by saying to plaintiff that she should tell their six-year-old how plaintiff wanted to "kill" the youngest child. This was a reference to the fact that when plaintiff learned she was pregnant with the third child she considered terminating the pregnancy. Plaintiff urged defendant to stop talking about this subject in front of their daughter, because she was becoming more and more upset.
Another Disney World incident prompted "about nine hours worth of argument" during which defendant was extremely abusive toward plaintiff. Apparently the older two girls had their first experience going in a swimming pool on previous trips to Disney World. During this trip, the youngest child was ten months old, and she was going to follow in this tradition. Defendant was sleeping in the hotel room. Plaintiff took the girls down to the pool. Before going, plaintiff and the girls attempted to wake defendant up, but unsuccessfully. Plaintiff then called defendant several times from the pool. Defendant became "very angry with [plaintiff] thinking [she] would put [the youngest child] in the pool without him." Plaintiff did not put the youngest child in the pool and had no intention of doing so without defendant being present. However, this resulted in a gross overreaction by defendant, which plaintiff described as follows:
Him calling me and screaming at me on my phone call. Calling me names, f---ing this, f---ing that. And I went back to the room several times, and he at one point even packed up and he was going to leave the hotel. He was going to leave 'cause he had had it with Disney World and that -- Another incident occurred during this trip which the judge found extremely troubling. The night before they left Disney World, after the children went to bed, defendant pointed to plaintiff's suitcase and said "that's just the beginning." Plaintiff was puzzled and inquired what defendant was talking about. He then revealed that "he had taken all of our Mickey Mouse ears [from the Mickey Mouse hats] and cut them in half." This caused plaintiff to be extremely fearful. She described her concern about defendant's escalating conduct as follows:
No, so at this point I'm starting to look like at this man saying, okay, this is above and beyond what he's ever done before. I mean, he's gotten very verbal. He has --in the past, he has thrown things in the house, you know, not directly at the children, but, you know, past my face or something like that.
THE COURT: Such as?
THE WITNESS: A phone he threw right past my face one time.
A. So -- but now we're talking like real, real destruction -- real destructive. And I'm saying to myself, well what does that mean, that's just the beginning?
And I didn't want to fight with him. I was drained. It had obviously been a long day at that point and, uh, those words, though, that's just the beginning. Cutting something in half, did that mean next it was going to be me? Next it was going to be the kids?
He told me later that's not what he meant. He just meant that he was fed up with Disney World, but in that time and place, that was not obviously my thinking especially based on what he was saying. Uh, he was also flipping things over. He flipped my suitcase over. He flipped the coffee table over. And what really frightens me about any of that is we've talked about all of this after the Order was dismissed and he doesn't remember any of it.
He doesn't remember doing any of it.
Finally, plaintiff described another Disney World incident. Plaintiff wanted to take the children to church on Mother's Day, but defendant told her she could not bring the children to church. Plaintiff explained that defendant often does not go to church with her and the children, but this was a different circumstance, telling her that she could go to church but she "couldn't bring them, that was a little scary." Plaintiff continued with this:
He has a thing about control, controlling who I talk to. He makes it very clear who he doesn't want me to talk to. He makes it very clear if he knows I'm going to a certain friend's house that he doesn't want me going there or that I shouldn't be friends with that person. And I've just always known him to be jealous and that's something that I guess I would feel guilty about, that I always had other people -- I had friends, I had family and he was always jealous of them.
When the parties returned to New Jersey, plaintiff sought and obtained a temporary restraining order on May 11, 2009 based upon the Disney World events. However, after a hearing on June 24, 2009, it was dismissed. Defendant then moved out of the marital home by the mutual agreement of the parties.
To continue with a chronological description of relevant events, we next describe the testimony of plaintiff's two witnesses regarding events that occurred after dismissal of the earlier restraining order but prior to the date of the predicate offense. Plaintiff's cousin described an incident on July 9, 2009. After meeting plaintiff and the children at a local park, she followed plaintiff back to plaintiff's home. Plaintiff was hesitant about going alone because defendant was there. When they pulled into the driveway, defendant immediately began yelling at plaintiff and got "right face to face with her, nose to nose." Then "his voice was raised and stern. . . . He was really mad." Defendant acted in this manner toward plaintiff for about forty-five minutes to one hour. Plaintiff "looked terrified."
Defendant's sister said that on July 13 or 14, 2009, plaintiff called her sounding "very afraid." Defendant's sister drove to the Wayne Police Department to make a report. She also took plaintiff to the police department on July 16 to seek a restraining order, but apparently none was issued. Defendant's sister admitted that she had not had much contact with plaintiff or defendant in the past year and that she was angry at both of them for not making her the godmother of any of the children. She also admitted leaving a voicemail for defendant threatening him with physical harm and that the police had warned her not to contact defendant again.
This brings us to the predicate offense. On July 18, 2009, plaintiff decided to take the girls to her parents' home in Ocean County for a few days. She notified defendant of her plans by email. He responded by asking whether it would be okay for him to stay in the marital home while she was away, and she answered in the affirmative. Over the course of the next two days, defendant began to call plaintiff and leave voicemails which became increasingly "irate."
Plaintiff eventually spoke with defendant. He said he wanted to come to her parents' home to see the children. She refused. On July 21, he began continually calling her and hanging up. She could tell from her cell phone that the calls were coming from three sources, defendant's cell phone, the home phone, and defendant's office phone from his home office. Although plaintiff told defendant "several times" that she did not wish to speak to him and that she would be back home in the next day or so, he nevertheless continued calling her repeatedly that afternoon and late into the night. In the course of these calls, plaintiff explained that "he was asking me about certain people that I had been seeing or talking to, and if I've been seeing or talking to them, and why have I or haven't I or who's been talking to them." She explained that defendant "needed to know . . . everything that was going on." By way of explanation of defendant's pattern of controlling behavior, plaintiff described that several weeks before this, defendant demanded that plaintiff provide him with the code to the security cameras on the home, because he wanted to see who had been there. She denied him access to the code and told the court that it was "very scary" to her to know that defendant was "[k]ind of monitoring, following almost every move I make or who was coming to the house."
Although plaintiff and the children initially stayed with plaintiff's mother, she then took the children to stay at a women's shelter for several days. She did that out of fear that defendant would find her and cause her harm.
During the course of the July 21, 2009 phone calls, defendant told plaintiff that "he would take proper action with the Stafford*fn1 police and he would be on his way down" to Ocean County. Plaintiff described what prompted her to go to the police department and seek a restraining order:
Because knowing [G.C.]'s actions and --and the way that I guess that cycle goes, I knew what was going to happen. I knew the rage was gonna come. I knew that he was going to blow up, whether it be via phone or driving down. And I was afraid of him. I was afraid to face him. I was afraid of what his mental state might be and the fact that the children would be with me.
During the course of these conversations, defendant continually asked plaintiff who she had been talking to or seeing, inquiring whether she had seen "this person" or "that person." He made similar inquiries about the children. When asked who it was that defendant did not want her to see or speak to, plaintiff responded: "It could be family. It could be friends. It could be business people who have reached out to me. Anyone. Anyone. Basically [he] doesn't want me talking to anyone."
In the course of his testimony, defendant did not deny the many arguments the parties had or the duration of some of the events plaintiff described. He blamed her for instigating the arguments and expressed his view that he had not acted inappropriately. As to the predicate offense, defendant insisted that he was only calling plaintiff for the purpose of arranging to see the children. He said that he and plaintiff had agreed, on the advice of their marriage counselor, that if one parent took the children outside the home, that parent would always answer phone calls from the other.
Judge Goldman found plaintiff's testimony very credible. He also found the testimony of plaintiff's cousin and of defendant's sister very credible, notwithstanding that defendant's sister may have had an "ax to grind."
The judge found a continuing pattern of verbally abusive and controlling conduct by defendant, which was escalating in the weeks and months leading up to the predicate offense. The judge found that defendant had a pattern of cursing at plaintiff, calling her vile names, exhibiting fits of anger, and being extremely abusive toward her. The judge was particularly concerned about the Mickey Mouse ear cutting incident. He explained it this way:
One doesn't cut the ears. He admitted he cut the ears. He admitted unabashedly without remorse that he cut the ears, and he says she -- well he mocks her for u -- for having the ears and for wearing the costume, and then diminishing that, okay, but what is his point with his - significance of cutting the ears? That's a dangerous thing to me. That bothers me. Very frankly, scares me. To cut them in half and then say this is the beginning. What's that mean? I don't know what it means, but it -- he knows in my opinion that it was wrong. He regrets I hope that he done it, but he shows no remorse on that. Instead it's almost a blame on her, which is another pattern of the abuse. Whatever is wrong is her blaming. Why -- well she shouldn't have put the child in the pool at that time. She's a Disney freak. She wanted every child to go to the pool at that time. Well she shouldn't have worn the Disney outfits.
See, it's her fault. It's her fault for doing this. It's her fault for the other thing, but he accepts no blame on himself, and his whole demeanor shows me that.
The judge rejected defendant's testimony that he made only three calls to plaintiff on July 21, 2009. He noted that defendant relied on his cell phone log which showed only three calls, but defendant did not address plaintiff's testimony that the calls were coming from three sources, all of which were related to defendant. The judge made a factual finding that seven calls were made, that they were made "into the late hours of the night."
The judge found that defendant was exhibiting loss of control during the calls, and that he continued making them after being repeatedly told not to call anymore. The judge described defendant as "a person who's having a hard time in control of himself to control his emotions." He was concerned with "a pattern that is becoming worse and worse and worse."
After describing the prior course of events, including those at Disney World that were the subject of an earlier domestic violence proceeding that resulted in dismissal of a temporary restraining order, the judge acknowledged that "I have to analyze the predicate incident, seven phone calls." The judge set forth in his opinion all of the elements of harassment, namely, a "purpose to harass," and communications made "[a]t extremely inconvenient hours" or while using "[o]ffensive and coarse language . . . and other manner to cause annoyance or alarm." The judge was satisfied that the series of phone calls on July 21, 2009 satisfied these elements, particularly in light of the prior course of conduct. The judge further found that the issuance of a final restraining order was warranted because the judge was "afraid based upon the history combined with the predicate incident." The judge therefore issued the order and this appeal followed.
A person is guilty of harassment who, with purpose to harass another,
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm[.] [N.J.S.A. 2C:33-4a.]
In the context of a domestic violence case, in addition to considering the discrete elements of the predicate offense, the court must also consider additional factors. These include the existence of immediate danger to the victim and the best interests of the victim. Cesare v. Cesare, 154 N.J. 394, 401 (1998); N.J.S.A. 2C:25-29a(2) and (4). The core purpose of the Act "effectuates the notion that the victim of domestic violence is entitled to be left alone. To be left alone is, in essence, the basic protection the law seeks to assure these victims." State v. Hoffman, 149 N.J. 564, 584 (1997).
In domestic violence cases, courts must also consider any previous history of domestic violence. Cesare, supra, 154 N.J. at 401. In Cesare, the Court explained that "not only may one sufficiently egregious action constitute domestic violence under the Act, even with no history of abuse between the parties, but a court may also determine that an ambiguous incident qualifies as prohibited conduct, based on a finding of violence in the parties' past." Id. at 402.
We will not interfere with a trial judge's findings of fact when supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, the findings and conclusions of a trial judge are entitled to enhanced deference in family court matters, given the special jurisdiction and expertise of family court judges in such matters. Cesare, supra, 154 N.J. at 413.
Applying these principles, we have no occasion to interfere with Judge Goldman's findings and conclusions. The judge correctly considered the prior course of conduct. The events underlying the alleged predicate offense should not be viewed in isolation, but in the context of an ongoing relationship, which gives those events special meaning in a given case. After correctly reciting all of the elements of harassment, the judge expressly found that all elements were proven. That finding is well supported by the record evidence. Further, the judge's conclusion that the issuance of a final restraining order was necessary to prevent defendant from continuing his unwanted conduct and to protect plaintiff's reasonable fear of defendant was also supported by the evidence. The judge applied the correct legal standards in reaching his ultimate decision, and that decision was based upon findings of facts supported by substantial credible evidence in the record.