March 1, 2011
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-1159-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011 - Decided Before Judges Cuff and Simonelli.
Defendant C.R. appeals from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
Defendant and plaintiff were married in January 1995. They have two daughters, C.S.R, who was fourteen years old at the time of the incident resulting in the FRO, and A.R., who was ten years old. There is evidence of defendant's prior threats to kill plaintiff, which resulted in the issuance of temporary restraining orders.*fn1
Prior to the parties' divorce, on January 17, 2010, defendant drove to plaintiff's residence to pick up the children for parenting time. When he arrived there he became very angry and upset and "started freaking out" when he saw plaintiff's boyfriend's car parked outside her home. He said to A.R. that plaintiff "wanted him to kill [her] and he needed to get equipment." Upset and crying, A.R. went into the home and told her mother what defendant said.
Taking defendant's threat seriously due to his prior threats, plaintiff, her boyfriend, and the children, left the home in the boyfriend's car "in a slight panic" "before [defendant] came back with the equipment." While in the car, C.S.R. called defendant on her cell phone with the speaker activated so that everyone in the car could hear the conversation. Defendant admitted that when his daughter asked if he went to get a gun, he replied, "no, I don't need a gun. If I wanted to kill somebody I'd kill them with my bare hands."
Defendant explained that he was "probably making a stupid joke" and intended to "put the conversation down, because they asked me you're going to get a gun. So to kill the conversation I said I'd kill someone with my bare hands so that would pretty much un-fuel this whole thing." Defendant also said he did not intend for plaintiff to hear the conversation, did not know she was listening, and did not intend to harass her.
The trial judge found "[defendant's] story incredible," stating, "I don't know who would kid around with young daughters about killing their mother as a joke." The judge also found that A.R. communicated defendant's first statement to plaintiff, and that plaintiff heard defendant's second statement via C.S.R.'s speaker phone. Although the judge did not specifically refer to N.J.S.A. 2C:33-4a, she concluded that defendant's statements were made in a manner "likely to cause annoyance or alarm." The judge also concluded there were prior incidents of domestic violence and an FRO was necessary.
In this appeal, defendant contends the trial judge erred in finding harassment because there is no evidence he made the statements with the purpose to harass plaintiff. Defendant argues that plaintiff was not present when he made the statement to A.R. and he made the statement to C.S.R. not knowing or anticipating that plaintiff was listening.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). The question is not whether this court would come to a different conclusion were it the trial tribunal. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). We intervene only when convinced that the trial judge's factual findings and legal conclusions "'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)). Where our review addresses questions of law, "the 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 (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)). Applying these standards, we find no reason to disturb the judge's decision.
A plaintiff seeking an FRO under the PDVA must establish by a preponderance of the evidence 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 or more of the fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19a. Harassment under N.J.S.A. 2C:33-4 is among the fourteen predicate offenses that, if proven, may entitle a plaintiff to the entry of an FRO. N.J.S.A. 2C:25-19a(13); N.J.S.A. 2C:25-29b(1), (6)-(7). The offense of harassment at issue here is committed when a person, with purpose to harass, "[m]akes 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[.]" N.J.S.A. 2C:33-4a.
A harassing communication need not be made directly to the victim. See State v. Castagna, 387 N.J. Super. 598, 606-07 (App. Div.), certif. denied, 188 N.J. 577 (2006). However, in order to establish harassment through another, the plaintiff must show that the defendant spoke to another "'with purpose to harass'" and "with purpose to 'cause [that person] to make a communication in a manner likely to cause annoyance or alarm" to the plaintiff. Id. at 605 (quoting N.J.S.A. 2C:33-4a). "Thus, the offense requires a purpose that encompasses two objects---- harassment of [the plaintiff] and 'causing' [another] to make the communication. . . . When a result such as 'causing' another to make a communication is at issue, purpose means a 'conscious object' to bring about that result." Ibid. (quoting N.J.S.A. 2C:2-2b(1)). The plaintiff, therefore, is "required to introduce evidence adequate to prove . . . that when the defendant spoke [to another] it was his conscious object to use [that person] as an instrument of harassment." Ibid. (citing N.J.S.A. 2C:2-2c(1)).
"There is rarely direct proof of intent, and purpose may and often must be inferred from what is said and done and the surrounding circumstances." Id. at 606 (citing State v. Siegler, 12 N.J. 520, 524 (1953)). "Prior conduct and statements may be relevant to and support an inference of purpose." Ibid. (citing Cesare, supra, 154 N.J. at 414; State v. J.T., 294 N.J. Super. 540, 545 (App. Div. 1996)). The [plaintiff]'s obligation to prove the defendant spoke with a purpose to harass [someone] through another is relevant to a defendant's responsibility for "causing" another to make a communication. Where proof of causation is required, the [plaintiff] must establish that the defendant's conduct was "an antecedent but for which the [harassing communication] would not have occurred." [Id. at 606-07 (quoting N.J.S.A. 2C:2-3a(1)).]
In this case, what defendant said and did, the surrounding circumstances, and his prior threats to kill plaintiff support an inference that he spoke to his children intending them to communicate his threat to plaintiff. Accordingly, we conclude that the evidence supports a finding that when defendant spoke to his daughters it was his conscious object to use them as instruments to harass plaintiff.