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J.J v. J.M

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 15, 2011

J.J., PLAINTIFF-RESPONDENT,
v.
J.M., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FV-03-000371-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 18, 2011

Before Judges Nugent and Kestin.

Defendant, J.M., appeals from the August 31, 2010 Final Restraining Order (FRO) entered by the Family Part against him and in favor of plaintiff, J.J., under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We affirm.

I.

The following facts were developed during the FRO hearing. The parties are the parents of a daughter who was born during their five-year relationship that ended in 1990. Plaintiff testified that she left the relationship because defendant was abusive to her and abused drugs. After they separated, the parties had no contact except in court during child support proceedings. Defendant no longer pays child support because their daughter is emancipated, but he recently had his wages garnished due to child support arrears.

The relevant events occurred in August 2010 at the doctor's office where plaintiff had begun working as a billing specialist in March or April of the same year. The doctor's office consisted of two adjacent buildings. Plaintiff worked in one and "punched out" in the other. According to plaintiff, on Friday, August 20, 2010, defendant drove by the offices, backed into a street, waited for plaintiff to walk from one building to the other, then pulled out and drove by slowly. Plaintiff thought nothing of it until the following Monday.

On Monday, plaintiff was working in her office when the medical receptionist called her and said "a [J.M.] is here to serve you with paperwork stating you gave out information on his wife, privileged medical information. . . ." Plaintiff said she did not know what the receptionist was talking about. During the conversation, plaintiff heard defendant yelling in the background and making a scene. He wanted to see the manager and said he was there to serve plaintiff with paperwork. Plaintiff came down to see what was going on, and defendant "bolted out." Plaintiff called after him but he ignored her. The next day, the office administrator asked plaintiff what was going on, and told her she had "to keep [her] private business private." The administrator admonished her not to bring her personal business into the workplace.

Defendant disputed plaintiff's version of the events. He testified that plaintiff's employer was his doctor, with whom he had been treating for six years. He had a disability case pending, and went to his doctor's office on Friday afternoon at the direction of his disability attorney to get some addresses. He intended "to look on the door and see if [he] could see a number off one of the doctors that [he] needed [for his disability claim]." He saw plaintiff locking the door, so he proceeded to the other office, looked "on [the doctor's] office, got what [he] needed[,]" and left.

Defendant returned to the office on Monday morning, on the advice of his attorney, to see if plaintiff had disclosed his confidential medical information. His son had told him that plaintiff had revealed medical information about his disability claim. According to defendant, about three weeks earlier, his son had been unable to accompany him to a family reunion in North Carolina and his son's mother was in Florida for a different family reunion, so his son stayed with plaintiff. His son had information about his disability claim that no one else knew, and his son said that plaintiff gave him the information. Consequently, on Monday, he went to the office with a friend, B.R., to determine if his HIPAA*fn1 rights had been violated.

When he arrived at the office on Monday, he asked to see the office manager but she was not there. He told the receptionist his HIPAA rights had been violated and asked if plaintiff worked there. The receptionist did not recognize plaintiff's name, but another employee said that she worked in billing. The receptionist phoned her, at which time defendant said he did not want to speak to plaintiff, but only wanted to speak with the office manager. When the receptionist replied that plaintiff was on her way down, defendant said he would wait for the office manager and left the building. Plaintiff came running out of the building screaming his name, but he ignored her, got into his car, and drove away. He testified that he subsequently filed a complaint with the federal government alleging HIPAA violations. He did not produce a copy of the complaint. B.R. corroborated defendant's version of Monday's events.

In rebuttal, plaintiff denied giving out medical information about defendant, denied having seen defendant's son, and denied knowing defendant was a patient of the doctor. In response to the court's questions, plaintiff testified that defendant had an unpleasant telephone conversation with the office administrator on Tuesday. The office administrator told plaintiff that she did not "take being threatened lightly by lawsuits or anything."

The court concluded that plaintiff satisfied her burden of proving by a preponderance of the evidence that defendant had committed an act of domestic violence and that plaintiff was in need of protection. Having specifically considered defendant's demeanor as a factor in its credibility determination, the court rejected his testimony and that of his witness. The court found that defendant entered the office on Monday and spoke in a loud voice, in a manner that was impolite and non-conversational, and that had "the ability to annoy [plaintiff], put her job in jeopardy, and ... otherwise be harassing or cause annoyance and alarm."

While acknowledging that if defendant actually thought someone was disclosing his information he had a right to be annoyed, the court determined the incident at the office had "no rhyme nor reason to it." The court found that defendant went to the office with the intent to annoy and alarm plaintiff.

The court also concluded that plaintiff had demonstrated that she was in need of protection, at least at her place of employment, and "this is just going to continue[.]" The court recognized, however, that defendant needed to see his doctor. Plaintiff stated that she did not work in the building where defendant's doctor saw patients, and if she had to go into the building she would use a back entrance so as to avoid contact with patients generally, and defendant specifically. The court issued an FRO.

II.

A.

Our "review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not disturb the trial court's findings unless they are demonstrated to lack support in the record or are inconsistent with the substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations based upon the opportunity of the judge to see and hear the witnesses. Cesare, supra, 154 N.J. at 412; see also Pascale v. Pascale, 113 N.J. 20, 33 (1988).

Family Part judges have been vested with great discretion in domestic violence cases and "have been specially trained to detect the difference between domestic violence and more ordinary differences that arise between couples ...." J.D. v. M.D.F., ___ N.J. ___, ___ (2011) (slip. op. at 41). "[T]heir findings are entitled to deference." Ibid. Although we owe no special deference to the trial courts' conclusions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), "we do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

A plaintiff seeking an FRO under the Act must prove "by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Harassment, N.J.S.A. 2C:33-4, is one such predicate act. N.J.S.A. 2C:25-19a(13). Upon a finding of the commission of a predicate act of domestic violence, the court must consider whether it "should enter a restraining order that provides protection for the victim." Silver, supra, 387 N.J. Super. at 126.

Harassment is defined in N.J.S.A. 2C:33-4, which provides in pertinent part:

Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, 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;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

"A finding of a purpose to harass may be inferred from the evidence presented." State v. Hoffman, 149 N.J. 564, 577 (1997). "[A]nnoyance" under subsection (a) means to "disturb, irritate or bother." Id. at 580. "[S]erious annoyance" under subsection (c) means "to weary, worry, trouble, or offend." Id. at 581.

"A complaint charging harassment in the domestic violence context also requires an evaluation of the plaintiff's circumstances." Cesare, supra, 154 N.J. at 404.

Although 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, a court must at least consider that factor in the course of its analysis. Therefore, 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.]

A single harassing communication may suffice under the Act. State v. Duncan, 376 N.J. Super. 253, 260 (App. Div. 2005).

B.

Defendant first argues that the evidence did not support the predicate offense of harassment, and there was no evidence to suggest he went to the doctor's office on Monday for any reason other than to complain about his medical information being disclosed. Although defendant denies he acted in the manner described by plaintiff, that issue presented a question of credibility that the trial court resolved against defendant. Defendant's conduct annoyed and alarmed plaintiff, disturbed her, and caused her to worry about losing her job.

The court's determination of defendant's intent also presented an issue of credibility, particularly in view of the substantially conflicting testimony. Defendant saw plaintiff locking the office door on Friday, yet asked the receptionist on Monday if plaintiff worked there. Defendant said his son stayed with plaintiff while defendant went to a reunion in North Carolina, but plaintiff testified she had not seen defendant's son for years. Defendant said he went to the office on Monday to see if his HIPAA rights had been violated, but the receptionist said defendant was there to serve plaintiff with paperwork.

"[D]omestic violence often presents circumstances in which a party may mask an intent to harass with what could otherwise be an innocent act." J.D. v. M.D.F., supra, slip. op. at 50. Defendant's intention when he went to the office was a question of fact that the trial court decided against him. The court's fact-finding was based on inferences, but those inferences were supported by the record and must be accorded deference. Cesare, supra, 154 N.J. at 412.

In view of the court's finding that the incident at the office had "no rhyme nor reason to it," and its implicit rejection of defendant's explanation about his HIPAA rights, defendant's actions violated subsection (a) of the harassment statute. Defendant's communication to plaintiff's employer and the manner in which it was made, and defendant's knowledge and intent that the communication would embarrass plaintiff, annoy her, and possibly place her job status in jeopardy, satisfied the elements of harassment under N.J.S.A. 2C:33-4(a). Defendant's conduct over the course of Friday, Monday, and Tuesday, also constituted a course of conduct that satisfied the elements of harassment under N.J.S.A. 2C:33-4(c).

Defendant also contends that his conduct, as a matter of law, did not amount to domestic violence requiring an FRO. "Domestic violence is a term of art which describes a pattern of abusive and controlling behavior which injures its victims." Corrente v. Corrente, 281 N.J. Super. 243, 246 (App. Div. 1995). When evaluating complaints of domestic violence, trial courts must be mindful of the purpose of the Act "to assure the victims of domestic violence the maximum protection from abuse the law can provide[,]" N.J.S.A. 2C:25-18, but not "trivialize[] the plight of true victims of domestic violence and misuse[] the legislative vehicle which was developed to protect them." Corrente, supra, 281 N.J. Super. at 250. Our courts have recognized that "'domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened.'" Cesare, supra, 154 N.J. at 405 (quoting Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995)). "The [Act] was intended to address matters of consequence, not ordinary domestic contretemps ...." Corrente, supra, 281 N.J. Super. at 250.

The trial court implicitly determined that this was a matter of consequence, because defendant's conduct was intended to harass and annoy plaintiff at her place of employment, had that effect, and placed her in fear of losing her job. Before entering the FRO, the judge also took into consideration defendant's need and right to consult with his doctor, and entered the order with the intent of assuring that defendant's right to consult with his physician would remain unfettered.*fn2

Considering the great discretion with which Family Part judges are vested, and their special training to detect the difference between domestic violence and more ordinary differences that arise between couples, J.D. v. M.D.F., supra, slip op. at 41, we will not second-guess the court's determination that plaintiff was in need of protection at her place of employment. That determination is supported by the evidence.

Affirmed.


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