January 26, 2011
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-1053-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2010 - Decided Before Judges Fuentes and Gilroy.
Respondent has not filed a brief.
Defendant T.M. appeals from a final restraining order (FRO) entered against her and in favor of her former husband D.B., pursuant to the Prevention of Domestic Violence Act of 1991 (the PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
Following an acrimonious marital relationship, the parties divorced on June 27, 2008. A daughter was born of the marriage in October 1999. Pursuant to the judgment of divorce (JOD), defendant has physical custody of the parties' daughter, and plaintiff has supervised parenting time. Following the divorce, defendant married R.M.; defendant, R.M., and the parties' daughter reside in Chatham with defendant's mother.
On May 1, 2009, plaintiff filed a domestic violence complaint against defendant, alleging that defendant had harassed and stalked him on April 21, and April 30, 2009. A temporary restraining order (TRO) was entered on the latter date barring defendant from having contact with plaintiff and his mother. Following a plenary hearing on May 18, 2009, the trial court entered an order determining that defendant had committed an act of domestic violence, that is, harassment, N.J.S.A. 2C:33-4. On July 14, 2009, the court denied defendant's motion for reconsideration. It is from these two orders that defendant appeals.
Four witnesses testified at the FRO hearing. Testifying on behalf of plaintiff were himself and Thomas Murray, the superintendent at plaintiff's apartment complex in Parsippany. Testifying on behalf of defendant were her husband and herself.
Because the witnesses' testimony differs, we provide the following synopsis of each witness's testimony.
Plaintiff testified to the acrimonious marital relationship that he and defendant had prior to their divorce. For example, plaintiff stated that defendant had spat on him, struck him in front of his daughter, told him that she wanted him dead or in jail, and when they resided in Texas, had struck him on the head with a frying pan. On other occasions, plaintiff testified that defendant had poured a quart of milk over his head and had thrown a full salad bowl at him. Plaintiff conceded that he reacted and knocked defendant down, for which he was arrested.
As to the events that led to the signing of the complaint, plaintiff testified that because defendant had previously signed a domestic violence complaint against him in February 2009, which the court later found unsubstantiated, he had moved to apartment 7D in an apartment complex in Parsippany in an attempt to conceal his whereabouts from defendant. The apartment complex has approximately twelve buildings containing about 400 residential apartment units. Notwithstanding his attempt to keep his residence secret from defendant, on April 21, 2009, defendant knocked on his apartment building's outside door. On opening the door, defendant handed plaintiff her response to plaintiff's motion then pending in the Family Part. On serving the papers, defendant "smirk[ed]" and walked away without saying anything to plaintiff. Defendant took the papers and retreated back into his apartment.
According to plaintiff that was his only personal contact with defendant. However, on April 30, 2009, defendant served him with additional response papers pertaining to the ongoing Family Part matters by having Murray leave the papers at the foot of plaintiff's interior apartment door. Because plaintiff later learned from Murray that defendant and her husband had been at the apartment complex on at least two prior occasions, and because defendant had attempted to serve her responsive papers upon his mother who resided in Toms River, plaintiff stated he feared for his safety and filed the domestic violence complaint.
Murray testified that in late March 2009, defendant and her husband came to the apartment complex and asked if they could inspect apartment 7D. Murray informed defendant that that particular unit, although previously advertised for rent, was then occupied. Murray next showed defendant and her husband Unit 7A, a one-bedroom apartment similar in layout to Unit 7D. While inside the apartment, defendant looked out a window and mentioned to her husband something about a particular car being in the parking lot. When Murray, defendant, and her husband returned to Murray's office, defendant and her husband attempted to give Murray and the apartment manager a copy of defendant's criminal history. Murray testified that in their attempt to hand him a copy of defendant's criminal record, they told Murray that defendant had an extensive criminal history and made vial comments concerning defendant's past. Murray testified that he and the apartment manager refused to accept the copy of plaintiff's criminal record.
Murray testified that the next time he saw defendant and her husband was approximately two weeks later when they returned to the complex to once again look for an apartment. According to Murray, they looked in the location of apartment 7D, but plaintiff seemed more concerned in looking for an individual rather than an apartment. When questioned as to what he meant, Murray stated: "She didn't demonstrate the normal prospects[,] questions[,] and concerns. She was more concerned with a particular automobile that she had seen in the parking lot in [the] previous visit to the apartment complex." After overhearing defendant tell her husband that "[t]here's the car. That's it right there," they left the complex.
On April 30, 2009, Murray again saw defendant at the apartment complex. At her request, he met her outside building
D. Defendant requested that Murray deliver legal papers to plaintiff. In response to the request, Murray took the papers, placed them in the hallway in front of apartment 7D, closed the security door, and defendant left. That was the last occasion Murray observed defendant at the complex.
Defendant testified that since the parties' divorce in June 2008, they have been embroiled in post-judgment litigation, primarily concerning plaintiff's request for unsupervised parenting time with their daughter. Defendant stated that because of her remarriage, her mother wanted to move to her own apartment. Defendant and her husband researched the issue and found several prospective complexes in Chatham and in nearby Parsippany. On visiting plaintiff's apartment complex in late March 2009, defendant was not aware that plaintiff resided there. Defendant asked Murray if he would show them a single-bedroom apartment for her mother's prospective occupancy. However, defendant denied that she or her husband asked to view apartment 7D. On Murray taking them to look at apartment 7A, while in the apartment, she looked out the window and saw plaintiff's automobile in the parking lot. Contrary to Murray's testimony, defendant testified that she and her husband visited the apartment complex a second time solely for the purpose of going to the manager's office to make the manager aware of plaintiff's criminal record. After the manager and Murray refused to accept the documents evidencing plaintiff's criminal history, defendant and her husband took the information to the Parsippany Police Department.
Defendant testified that she next returned to the apartment complex on April 21, 2009, for the purpose of personally delivering a response to one of defendant's motions that he had filed in connection with their ongoing custody litigation. Defendant stated that she had received an order to show cause (OTSC) and a motion within several days of each other, and that plaintiff had sent the pleadings to her former attorney, although she believed that plaintiff was then aware that she was unrepresented in the custody matter. Because of the delay in receiving the papers, she was concerned with time restraints in serving responses. Thus, she chose to personally serve plaintiff with her responses, rather than serve him by mail.
On April 21, 2009, defendant knocked on what she believed was plaintiff's apartment building door. Plaintiff opened the door, and she handed him her responsive papers, turned around, and left. According to plaintiff, she never made threatening gestures or statements.
Defendant next returned to the apartment complex on April 30, again for the purpose of serving defendant with responsive papers pertaining to the OTSC or motion. According to defendant, it was raining and she did not want to leave the papers outside the apartment building for fear of them being ruined. She telephoned Murray, and Murray met her at the apartment building. She never requested to enter the building, but only asked Murray if he would deliver the papers to plaintiff. Murray complied by taking the papers and leaving them at plaintiff's interior door.
Defendant's husband testified in accord with defendant. He stated that he believed it was his duty to make the manager and Murray aware of defendant's criminal history to protect his stepdaughter from possible harm.
It is against this testimony that the court found defendant violated the harassment statute and entered the FRO against her. In so doing, the court reasoned in part:
The complaint alleges two predicate acts. They are harassment and stalking, deriving out of events occurring on April the 21st and April the 30th, 2009. And there are events leading up to those two as well.
. . . . Now, in this particular instance we have by my count four occasions which the Defendant appeared at the Plaintiff's apartment complex beginning in mid to late March through April the 30th.
The first event Plaintiff alleges that she came to the apartment complex. And there's not a question that she lives in Chatham, New Jersey, about 20 minutes away from Parsippany, New Jersey. And she came to the apartment complex in an effort in which she has testified and [R.M.] and as well as Mr. Murray testified to seek an apartment for her mother.
Now, what is also not in dispute is that the Defendant had been trying to seek the actual address of the Plaintiff in order to serve him with process. I had the opportunity here and see Mr. Murray testify. He has no vested interest in the outcome of these proceedings. He doesn't know the Plaintiff other than the fact that he's a tenant in his apartment complex. He doesn't know the Plaintiff and he doesn't know the Defendant.
I had the opportunity to see and hear him. And I find his testimony to be credible. He testified directly, did not hesitate, maintained eye contact. Gave no indicia of falsehood or omission. He testified that some time in late March the Defendant came to the apartment complex and requested to see a particular apartment, that being 7D as in David, which just so happens to be the Plaintiff's apartment.
Now, I'm not sure how many apartments are at this location, but by [R.M.'s] description if I'm to accept his testimony, he says there are 400 units in this complex what he believed to be I think he said 12 buildings. Let's assume that's so. It would be an enormous coincidence for this Defendant to happen upon an apartment complex 20 minutes away from her own for her mother to wind up asking for the particular unit in which the Plaintiff resides. And to ask to see that unit. And then to wind up being shown a unit right next door.
And I do not find that it was coincidence that the Defendant [would show] up at the Plaintiff's apartment complex. I also find that it was the Defendant's intent to find out where the Plaintiff lived so that she could make it more difficult for the Plaintiff either by having him evicted or by furthering her efforts in a post-judgment divorce action for child custody.
I'm here simply to determine whether or not an act of domestic violence has occurred, committed by the Defendant against the Plaintiff and whether or not there is danger of immediate harm or propensity for further abuse which would necessitate the final restraining order to protect him and allow him to be left alone.
I find there to be an inconsistency in the Defendant's testimony. She differs from her own witness in that account on the second occasion. .
And her conduct was intended to annoy the Plaintiff, to make life more difficult. To bother him. To irritate him. Disturb him. Now, in fact Mr. Murray testified they did indeed conduct a criminal background check of the Plaintiff after hearing from the Defendant.
That brings us to the two events which are complained of in the complaint occurred subsequent to. And that's two visits the Defendant made to the apartment complex to serve Plaintiff with papers. The [c]court would note the Defendant is not an inexperienced litigant. She has been represented by counsel in the past. She's an attorney by training.
When I asked her to acknowledge or to give answers to her knowledge as to how much time she had to respond to moving papers or orders to show cause[,] I had to pry to ask her at least ten times before I ultimately received a response that she didn't recall.
I find that particular manner in which she responded to be particularly indicative of an intent to omit information which she had knowledge of. [I] find that she went to the premises not solely to serve the papers[,] [b]ut send a message to the Plaintiff that she knew where he lived. Something that he had been attempting to [keep] secret from her.
Coming to the Plaintiff's home on those two occasions after the events that occurred just a week or two before was indeed an attempt to let the Plaintiff know she knew where he lived and it was meant to send a message. She could have served process in other means. I find that she deliberately did not do so. I find that her acts do meet the predicate of harassment by a preponderance of the evidence.
I do believe and I find it's more likely than not that with purpose to harass the Plaintiff she came to his apartment complex and attempted to serve him with process directly in an effort to annoy and alarm him. Having made a finding of a predicate act of domestic violence, that being harassment, the [c]court must then do an analysis under Silver [v.]Silver, an Appellate Division case from 2006 to determine whether a final restraining order in fact is necessary in order to protect the Plaintiff from immediate danger or from further abuse.
You know again as I indicated I find no evidence of immediate danger here to the Plaintiff. But what is very eviden[t] to me is that the parties are engaged in a tumultuous post-judgment divorce litigation. This is a scorched earth policy the two of them seemed to be engaged in. And that concerns me greatly.
As I indicated before [in] State [v.] Hoffman, the purpose of the Prevention of Domestic Violence Act is to allow for those who wished to be left alone to be left alone. In this particular instance, despite the Plaintiff's clear attempts to communicate that he wanted the Defendant to leave him alone by even [not disclosing] his address. The Defendant sought him out and did not leave him alone.
Based on what I heard today[,] I am going to grant the final restraining order because I do believe that there is a propensity for further abuse.
In denying defendant's motion for reconsideration, the trial court stated:
Now while I don't necessarily disagree with you that if her sole purpose there would be to serve -- be serving papers to [plaintiff]. That under court rules there wouldn't necessarily be anything wrong with that assuming there was no restraining order between them. But that was not the facts that came out at trial nor . . . the facts which the [c]court found.
Court found that the entire event was a ruse . . . by the defendant in order to further harass the plaintiff, not to serve him with papers.
Because . . . she could've served him [with] the papers in accordance with court rules by simply serving by certified [and] regular mail. Even if she thought that was his address, she did not do so. And this was brought out by subsequent actions which were corroborated by her husband who testified on her behalf, that later they came to see the superintendent.
And while . . . I agree with you it is not alleged in the complaint as the primary complaining event. But the [c]court is permitted to take in facts to . . . understand events as they take place in context. The context in which this occurred was very important. She did not come to the [superintendent] to serve paper except on one occasion. She came to the [superintendent] on this one occasion to give him which she believed to be background information on the plaintiff. Background information which I make no finding whether it is truthful or not. But certainly if not true would be defamatory and certainly was intended to paint him in a light so that they could encourage the superintendent to have him evicted from the apartment complex.
Although the trial court did not specify which subsection of N.J.S.A. 2C:33-4 he found defendant violated, we conclude that the court determined that defendant violated subsection c of the statute.
On appeal, defendant argues: 1) the trial court erroneously entered a final restraining order against her because "plaintiff failed to meet his burden proof with regard to the predicate acts alleged in his complaint"; 2) the court "erred in [its] determination that the issuance of a final restraining order was necessary for the protection of the plaintiff"; and 3) the court erroneously relied upon allegations not set forth in the complaint.
Our review of a family judge's findings is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will "not disturb the 'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Indeed, a Family Part court's fact-findings and exercise of sound discretion will not be second guessed on appeal. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). However, where our review addresses questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434.
Defendant contends that the FRO must be vacated because plaintiff failed to establish the predicate act of harassment. We disagree.
A plaintiff seeking a FRO under the PDVA must establish that the defendant committed an act of domestic violence. Franklin v. Sloskey, 385 N.J. Super 534, 542 (App. Div. 2006). The PDVA defines domestic violence as the commission of any one of the fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19(a). Harassment, N.J.S.A. 2C:33-4, is among the fourteen predicate offenses that, if proven, entitles a plaintiff to the entry of a FRO. N.J.S.A. 2C:25-19(a)(13). The offense of harassment, which was alleged as one of the underlying offenses here,*fn1 is committed when a person, "with purpose to harass another," "[e]ngages in any other course of alarming conduct . . . with purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33-4c. In order for a court to find that a defendant committed an act of harassment as proscribed by that statute, the court must find that the person had a "conscious objective" to harass the plaintiff. State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).
In determining whether a party's actions constitute domestic violence, the PDVA requires that a trial judge's consideration include factors, such as any previous history of domestic violence between the parties, including any threats, harassment, and physical abuse, and the existence of any immediate danger to person or property. N.J.S.A. 2C:25-29a(1) and (2). However, "a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation." Cesare, supra, 154 N.J. at 402.
"Integral to a finding of harassment under N.J.S.A. 2C:33-4(c) is the establishment of the purpose to harass, along with a course of alarming conduct or repeated acts intended to alarm or seriously annoy another[.]" Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995) (citations omitted). "A finding of a purpose to harass may be inferred from the evidence presented and from 'common sense and experience.'" H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003). The serious "annoyance" standard in subsection c has been interpreted by the Court to mean: "[T]o weary, worry, trouble, or offend." State v. Hoffman, 149 N.J. 564, 581 (1997).
Once a trial court finds that an act of domestic violence has been committed, before issuing an FRO, the court must also determine whether a restraint is necessary "to protect the victim from an immediate danger or to prevent further abuse." Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). Although this determination "is most often perfunctory and self-evident," because of the nature of the domestic violence act found by the court, ibid., when the act found is not egregious in nature, the court "should consider and make specific findings on the previous history of domestic violence, if any, between the plaintiff and defendant, and how that impacts, if at all, on the issue of whether a restraining order should [be] issue[d]." Id. at 128. It is against these principles that we consider defendant's argument.
Although, if sitting as the court of first impression we might have reached a different conclusion, we affirm. The trial court's factual findings are substantiated by credible evidence in the record and will not be disturbed on appeal. Cesare, supra, 154 N.J. at 411-12.
The trial court, after listening to the testimony of the witnesses, assessed each witness's credibility, and determined defendant not credible. The court rejected defendant's testimony that she and her new husband came upon plaintiff's apartment complex by chance. Rather, the court concluded defendant had undertaken a purposeful course of conduct designed to locate plaintiff to annoy him. The court's finding that it was an "enormous coincidence" that defendant, while searching for an apartment for her mother, specifically wanted to view plaintiff's apartment is a reasonable inference. The court based this inference on Murray's testimony that defendant specifically requested to see apartment 7D and that the apartment complex has approximately twelve buildings with 400 units. It is reasonable to assume that defendant locating plaintiff's precise apartment was not an accident, but rather the fruit of an intentional course of conduct.
Upon finding plaintiff's residence, the court determined that defendant undertook a course of action to harass him. For example, the court found defendant attempted to disseminate plaintiff's criminal background to his landlord with an intent "to paint [plaintiff] in a light so that they could encourage the superintendent to have him evicted from the apartment complex." As to the predicate acts pled in the complaint, the court concluded that defendant had undertaken to respond to plaintiff's Family Part matters by serving him personally, rather than through the mail or private process server, to send plaintiff the message that she now knew where he lived.
Although the mere serving of legal papers by themselves would not violate the harassment statute, when considered in light of defendant's prior course of actions to locate and attempt to harass plaintiff, we find no good reason to disturb the trial court's conclusion that defendant intended to annoy plaintiff when she sought to personally serve him with her responsive papers.
The trial court properly applied Silver's step-two analysis. Although it concluded that plaintiff was not in immediate danger from defendant, it determined that there was a propensity for future abuse. The court considered the history of the parties pursuant to N.J.S.A. 2C:25-29a(1), noting: the "tumultuous" post-judgment divorce litigation and the "scorched earth policy" that both parties currently engage in when addressing issues between themselves. In addition, the court observed that plaintiff attempted to communicate to defendant in the past he wanted no further contact with her, but that defendant "sought him out and did not leave him alone." Therefore, the trial court determined defendant was likely to continue her prior pattern of harassing behavior, unless an FRO was entered.