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N.S v. R.H

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 24, 2011

N.S., PLAINTIFF-RESPONDENT,
v.
R.H., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FV-20-1126-09 and FV-20-1198-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 16, 2011

Before Judges R. B.Coleman, Lihotz and J. N. Harris.

Defendant R.H. appeals from the entry of a Final Restraining Order (FRO), based upon the complaint filed by plaintiff N.S. pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to 35, and the denial of his cross-complaint for domestic violence relief. The estranged parties both worked as officers for the same police department. Their respective domestic violence complaints accused one another of committing harassing conduct. After a bench trial, the court granted plaintiff's request for an FRO and denied defendant's request for an FRO.

On appeal, defendant argues the Family Part's determination was against the substantial, credible evidence presented at trial. Further, he maintains the trial court erred in denying his FRO request once he had established that plaintiff engaged in a course of conduct with the purpose to alarm and seriously annoy him. We are not persuaded and affirm.

I. The facts are taken from the parties' testimony at trial. Plaintiff and defendant were married and worked as police officers for a municipal police department. The parties separated on January 13, 2006, and divorced one year later. They have two children and defendant has a son from a prior relationship with C.S.

Plaintiff testified problems during the marriage resulted because defendant drank excessively, often embarrassed her by name-calling, and did not control his temper, such that he would slam doors, throw things and "push [her] around when he would get really angry."

On January 13, 2006, without notifying defendant, plaintiff moved from the marital home into a two bedroom apartment with the parties' two children. Later that day, the parties met at the police department in the presence of three supervising officers. Plaintiff had arranged the meeting, requesting the police chief reveal that she had moved because she "didn't want any confrontation" and "didn't want to take the chance of it becoming a physical event." Plaintiff had not sought relief under the PDVA because it could precipitate adverse employment ramifications stating, "if you get police called to your house over a domestic violence issue, you're both going to . . . lose your guns [] and you're not going to be able to work and you're going to get suspended."

After separation, defendant "was very upset at the whole situation[,]" and voluntarily enrolled in anger management classes because he "knew [he] had a lot to lose if [he] didn't control [him]self correctly." However, conflict arose regarding the children's care, the parenting time schedule and defendant's reaction to plaintiff's romantic relationship with another police officer, who we will refer to as "Bud."

In discussing the past history of domestic violence, the parties testified to numerous incidents arising following their separation, as well as events leading up to two police department internal investigations regarding complaints of inappropriate behavior. Without detailing every incident, we recite those events undergirding the parties' cross-complaints alleging domestic violence.

In April 2006, defendant learned plaintiff visited Bud for the Easter weekend while the children stayed with her parents. Defendant became very upset because he and plaintiff only had been separated for a few months and he had anticipated seeing the children during the holiday. In a telephone conversation with plaintiff on April 17, 2006, defendant told her to "stick the phone between [her] legs, because that's what [she] w[as] doing[.]" In a subsequent phone conversation on April 26, 2006, defendant called plaintiff "a pathetic mother and a piece of shit white trash."

On their days off, defendant and Bud provided security services for a local bank. Defendant was embarrassed by rumors circulating among bank employees that discussed plaintiff's visits with Bud while he was working at the bank. On May 16, 2006, defendant and plaintiff discussed the rumors. Defendant cursed at plaintiff and he uttered a racially biased comment to describe Bud. Two days later, plaintiff filed a workplace "Harassment Complaint." Defendant, fearing he would be demoted and suffer a pay cut if he challenged the charges, pled guilty to the charges and admitted to using derogatory language during the May 16, 2006 conversation. Consequently, he suffered a fifteen-day suspension.

On May 23, 2006, plaintiff filed her first domestic violence complaint. The parties eventually resolved their concerns and entered a June 13, 2006 consent agreement limiting their contact with each other. Specifically, each party was restrained from contacting the other "in person, by telephone, by email or otherwise, except that the parties may communicate by email [] concerning the children" and all parenting time pick ups and drop offs were to take place at a police station.

Following a disability leave, when defendant returned to work he requested a change in his shift to avoid contact with plaintiff and Bud. To support his request, defendant showed his deputy chief emails and text messages between him and plaintiff, along with her diary entry revealing her past romantic feelings for Bud.

The parties' divorce was finalized on January 23, 2007. On May 11, 2007, plaintiff went to defendant's home to deliver an item to their son. When she arrived she observed defendant watching the five-year-old and three-year-old children as they walked barefoot down the street to play on a grassy field adjacent to a busy road. Instead of leaving, plaintiff parked nearby watching the children play alone in the field because she "had a sick feeling in [her] stomach that if something happen[ed] to [her] kids [she could] never forgive [her]self for not at least watching to make sure they're okay." Plaintiff later reported the incident to the Division of Youth and Family Services (the Division), which commenced an investigation. Even though the Division was told by the parties' son that his mother said defendant was drinking an "alcohol soda" on the day in question, it concluded the allegation of inadequate supervision was unfounded.

On February 14, 2008, defendant had scheduled a visitation with the children but had a conflict with his other job. Instead of hiring a babysitter, defendant had his girlfriend care for the three children. When plaintiff learned of this, she told C.S. defendant was not with their son. A short time later, defendant received a text message from his girlfriend stating C.S. called, yelling and stated she would remove her son from his house if he did not return home. Defendant believed plaintiff's report of his absence was "to annoy and alarm" him while he was working, and he sent her a text, which stated: "Why don't you mind you[r] own business" to which plaintiff responded, "My children are my business."

On February 17, 2008, defendant drafted an internal memorandum to one of the department's police captains. The document identified defendant's concerns resulting from his interaction with plaintiff. First, defendant related the events of February 14, 2008 and reiterated plaintiff's actions were intended to harass him. Next, he detailed the circumstances of rear-end collisions involving plaintiff while on her lunch break. Defendant alleged plaintiff was belligerent and abusive to the offending motorists. Finally, defendant produced plaintiff's diary entry revealing she had contemplated suicide and suggested his children's safety was in jeopardy.

Defendant's memorandum triggered a departmental investigation of plaintiff's conduct by a captain, who recommended certain actions violated the departmental conduct policies. The Chief of Police presided over two disciplinary hearings -- one regarding the automobile accidents and the other involving the Valentine's Day incident with C.S. The Chief dismissed the charges, finding plaintiff's report of defendant's absence was motivated by her concern for the child's well-being. Further, the Chief found there was no inappropriate conduct following the automobile accidents. Finally, the suicide diary entry was not considered because it was written by plaintiff when she was a teenager.

On March 21, 2008, plaintiff was watching from her porch as her children played with the neighbors' children in their front yard. Plaintiff went inside the house to take Easter eggs off the stove, claiming she could observe the children from the kitchen and knew her neighbor was also watching them. Defendant drove by the house on his way to pick up his son from C.S.'s home and stopped to speak to the children. He believed they were playing unattended and later emailed plaintiff to ask why the children were outside unsupervised. Defendant acknowledged he sent the email because, "With all the crap that she does to me and all this, I was like well here's a good example . . . [t]o show her . . . everybody is not . . . [a] perfect [parent]. And I had concern about the children being left outside unsupervised."

In the summer of 2008, plaintiff reported her children were inadequately supervised around defendant's unfenced swimming pool to the Division, which found the report unfounded. Plaintiff also notified the township, which fined defendant because he lacked permits for the pool, deck, and wood burning stove.

On August 13, 2008, plaintiff filed a memorandum accusing defendant of workplace harassment. Rather than conduct an internal investigation, the chief contacted township counsel who referred the matter to a private law firm. After the investigation was completed, the firm concluded defendant had engaged in workplace harassment in violation of department workplace policy.

On December 4, 2008, defendant observed plaintiff and Bud outside her home. Defendant drove by, beeped the horn, and waved. On her way back to work, plaintiff received a text message from defendant which said "your family must be proud." Plaintiff responded with a question mark, hoping defendant would elaborate but he never did; during her testimony plaintiff interpreted the remark as a racial slur. Defendant explained he always drives past plaintiff's home because it was "the fastest, easiest, and most direct route" when picking up the children from school. Explaining his text message, defendant remarked he meant "her parents must be proud, that she gave up a marriage with small children to end up with this guy[.]"

A different police captain testified regarding a call he received from defendant after this incident. Defendant called the station "very agitated" and said, the "ID [office] must be real busy. [Plaintiff]'s got time to fuck [Bud] on her lunch hour." The captain called plaintiff, who was on her way back from lunch. Defendant admitted he called but denied using inappropriate language because his children were in the car at the time. No investigation or disciplinary action resulted.

On December 5, 2008, plaintiff filed a domestic violence complaint alleging harassment resulting from the February 17, 2008 and December 4, 2008 incidents and requested the entry of a TRO restraining defendant from continued domestic violence and contact with her. The municipal court granted plaintiff's request. On December 6, 2008, defendant was suspended from the police department with pay as a result of the December 4, 2008 phone call placed to a captain and because a TRO had been entered, which prohibited him from possessing weapons.

On December 17, 2008, defendant filed a domestic violence complaint alleging harassment and requested entry of a TRO restraining plaintiff's conduct. The Family Part entered a TRO.

Trial on the consolidated matters was held over four nonconsecutive days. The parties introduced a total of sixty exhibits and each testified. Further, testimony was presented by the police chief, C.S., C.S.'s fianceee, three fellow police officers and a police captain.

On April 17, 2009, the trial judge issued his oral decision. After discussing the facts, the court first found that:

Essentially all the e-mails that . . . [defendant] talks about relate to child care and visitation. It is his position . . . that the plaintiff keeps changing the [visitation] schedule, won't permit him to see his children when he is allowed to, and keeps using this tactic to intimidate him, to harass him.

Mutual disputes in telephone calls over child care issues don't constitute harassment. Trivial fights and petty bickering cannot constitute harassment.

I don't believe any of th[e] types of communications . . . presented here[] are made with the purpose to harass, which is what you need to have in order for a communication to be harassing.

Accordingly, defendant's complaint was dismissed.

Next the court discussed plaintiff's allegations against defendant. Reviewing the complaint that prompted the internal police department investigations of plaintiff, the court determined that defendant "had no first-hand information" regarding the car accidents, was not plaintiff's supervisor, had never before reported an officer for disrespecting a citizen and used an "outdated and irrelevant" high school diary to place plaintiff "in jeopardy with her job." Further the trial judge found:

There could have not have been a purpose to file a complaint like that, that had nothing to do with [defendant] . . . [or] his job. The only purpose was to get [plaintiff[] in trouble for what -- because he wanted to get even. And to me that's harassment.

Additionally, crediting plaintiff's testimony, the trial judge determined the only reason defendant had to drive by plaintiff's house was "to spy on her, to make sure that he could see whatever it is that he wanted to see that was going on." This ended with the incident whereby defendant reported plaintiff was engaged in inappropriate activity while on-duty. The court found this is "a course of conduct by [defendant] that relate[s] to the interpersonal relationship of the plaintiff and the defendant unrelated to [the] job, job performance, unrelated to childcare, and solely, in my view for the purpose of harassing her and causing her serious annoyance and alarm." The court entered a final restraining order based upon plaintiff's complaint. This appeal ensued.

II. The scope of appellate review when evaluating a trial court's decision is limited. See In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The factual findings made by a trial judge should not be disturbed unless "they are so wholly insupportable as to result in a denial of justice," and should be upheld whenever they are "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). In our review, we accord deference to the trial court's credibility determinations and the judge's "feel of the case" made based upon the opportunity to see and hear the testimonial evidence, which is never reflected by a review of a cold record. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). See also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (stating deference is afforded to a trial court's findings of fact as the trial court "has the opportunity to make first-hand credibility judgments about witnesses" who testify). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility,'" as we recognize the special expertise of judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted).

III. Defendant asserts the evidence defeats plaintiff's claims of domestic violence and he defends his conduct, arguing his reports related to plaintiff's behavior were filed to fulfill his affirmative duty to obey department rules and regulations and inform his superiors of potential misconduct by a fellow officer. We reject this contention of error as well as the argument that the trial evidence failed to establish an act of harassment, an intent to harass or that a restraining order was necessary. We also are not persuaded the trial court erred in dismissing defendant's complaint.

A person commits an act of harassment if, with purpose to harass another, he or she "[e]ngages in any [] course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33-4(c). Prior to entering an FRO under the PDVA, a reviewing court "must determine by a preponderance of the evidence whether an act of . . . harassment, or any other listed prohibited conduct, has been committed." Cesare, supra, 154 N.J. at 401.

"In order for a communication or conduct to constitute harassment and an act of domestic violence, the defendant must speak or act with the purpose to harass another, Murray v. Murray, 267 N.J. Super. 406, 408-09 (App. Div. 1993), and the words or conduct must be of a nature to cause alarm." Chernesky v. Fedorczyk, 346 N.J. Super. 34, 39 (App. Div. 2001) (citing State v. Hoffman, 149 N.J. 564, 577 (1997); D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994)). "A finding of a purpose to harass may be inferred from the evidence presented. Common sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577 (internal quotations and citations omitted).

The trial court squarely addressed defendant's assertions of good faith, finding the evidence belied his claimed purpose "of bringing light to some recent, erratic and negative behavior by [p]laintiff that seemed to evidence the need for mental health counseling[.]" The judge noted plaintiff's February 17, 2008 memorandum to plaintiff's supervisor was comprised almost entirely of details related solely to plaintiff's private life. The ensuing internal police investigation confirmed plaintiff "had not done anything improper" and there was no evidence of misconduct. The trial judge's conclusion that defendant's purpose was nothing more than an attempt to tarnish plaintiff's reputation and adversely impact her employment was amply supported by the credible evidence in the record. Likewise, the finding that defendant's text message to plaintiff and the subsequent oral report to her commanding officer after observing plaintiff at home talking to Bud while on duty served only to harass plaintiff, was sustained by the evidential record.

Drawing reasonable inferences from all of the evidence, the judge concluded this was "a course of conduct" relating to "the interpersonal relationship of the plaintiff and the defendant" and not related to their employment or care of their children, but designed to cause plaintiff "serious annoyance and alarm." Defendant presents no basis to disturb the factual findings made or to set aside the conclusions drawn that defendant committed harassment. In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citing Rova Farms, supra, 65 N.J. at 483-84).

Next, defendant argues the trial court failed to consider whether a restraining order was necessary by reference to the relevant factors set forth in N.J.S.A. 2C:25-29(a). That statute provides that once a predicate act of domestic violence is determined, a court must then determine whether an FRO is proper based on, but not limited to, the following factors:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the protection of the victim's safety; and

(6) The existence of a verifiable order of protection from another jurisdiction. [N.J.S.A. 2C:25-29(a).]

Here, the trial court recited a long history of past verbal and physical altercations initiated by defendant during the marriage, following separation and continuing post-divorce, which constituted past "threats, harassment, and physical abuse[.]" N.J.S.A. 2C:25-29(a)(1). The trial court found these reports of inappropriate conduct transcended "trivial" or "petty" remarks and were designed to invoke the employer's disciplinary system. Moreover, defendant's feigned concern for the children's welfare because of plaintiff's possible mental health issues was concocted using plaintiff's teenage diary entries.

The trial judge "was satisfied that there's a danger of future acts of domestic violence" if a restraint was not entered. We defer to these determinations that sufficiently support the court's conclusion under N.J.S.A. 2C:25-29(a), that entry of a restraining order was necessary to protect plaintiff from further acts of domestic violence. See Kamen v. Egan, 322 N.J. Super. 222, 227-29 (App. Div. 1999). We will not substitute our view of the evidence for the trial judge's feel of the case.

Finally, defendant argues the trial court erred in denying his request for restraints, after ignoring evidence that plaintiff harassed him, and in finding the acts complained of were all related to the children's care and welfare. Yet, throughout trial and in his brief on appeal, defendant argues plaintiff's efforts were designed to thwart his custodial and parenting time rights. As the trial judge noted, such disputes should be addressed by the Family Part in the matrimonial matter. We concur with the trial judge's conclusion that the child care disputes recited do not rise to the level of domestic violence. See J.N.S. v. D.B.S., 302 N.J. Super. 525, 527-28 (App. Div. 1997).

Also, defendant's suggestion that plaintiff too misused the department disciplinary system to alarm and annoy him is unfounded. Defendant pled guilty to using derogatory language toward plaintiff as alleged in the May 18, 2006 complaint and an independent law firm conducting the investigation on August 13, 2008 determined defendant violated department policy.

Any additional arguments raised by defendant not otherwise discussed are determined to be without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

20110624

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