On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-0438-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Nugent.
The opinion of the court was delivered by FUENTES, J.A.D. Defendant J.A.F., Jr. appeals from a final restraining order (FRO) entered against him by the Family Part under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The trial court's decision was based on a domestic violence complaint filed by defendant's former wife, plaintiff L.M.F, alleging harassment, N.J.S.A. 2C:33-4(a), as the predicate offense for the injunctive relief sought.
On appeal, defendant argues the trial court erred in issuing the FRO because plaintiff did not present sufficient evidence to sustain the predicate offense of harassment. We agree and reverse. Giving plaintiff the benefit of all reasonable inferences from the evidence presented, and accepting as true her testimony describing the events that led to the filing of the complaint against defendant, the evidence presented to the trial court was insufficient, as a matter of law, to prove the offense of harassment as defined in N.J.S.A. 2C:33-4(a).
The parties married in 1989 and divorced in August 2006. Two children were born of the marriage - a son age 19, and a daughter age 17. The parties have joint legal custody of the children, with plaintiff being the parent of primary residence. Defendant has remarried. The incidents that gave rise to this litigation involved defendant's efforts to obtain information concerning his daughter's social and academic activities and the potential for misuse inherent in our modern technological means of communication.
At the time plaintiff filed her complaint against defendant, the parties communicated primarily through "texting," which has been defined as [t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices. [Texting, NETLINGO, www.netlingo.com/word/texting/php (last visited August 8, 2011).]
Sometime in March 2010, the parties' daughter's high school basketball team won a state championship title. The school gave a banquet to celebrate the team's achievement and invited the parents to attend. Plaintiff received her invitation by mail. According to plaintiff, she assumed defendant had received a similar invitation by mail because "his personal information is on record with the school and he has the availability to contact the athletic department directly."
Defendant did not attend the banquet because he did not receive a notification from the school. He was upset and blamed plaintiff for not notifying him directly. According to plaintiff, defendant's current wife sent her approximately four text messages about this incident on an unspecified date, between 6:50 a.m. and 9:00 a.m. "in the morning before I went to work." Plaintiff did not save these text messages and could not otherwise elaborate on the substance of these communications.
THE COURT: In terms of the text messages, I need to know two things . . . Was there cursing, was there abusive language, what was it?
PLAINTIFF: Basically, [defendant's current wife] was saying that I had an obligation, [defendant] attended all the games, and I should have told him about the event and this and that when our daughter is 17 years old and our son is 19.
The next relevant event concerned a Board of Education meeting in which the basketball team was to be recognized and honored for their achievement. On May 25, 2010, plaintiff received eight text messages between the hours of 7:32 a.m. and 8:19 a.m. from defendant's current wife. Plaintiff did not produce the messages she sent in response.*fn1 Despite this omission, the trial court admitted into evidence the following text messages sent to plaintiff by defendant's current wife:
7:32 a.m.: Where do you get off telling [defendant] where I can and cannot go? Board of Ed. meetings, why would you tell him? FYI, it's only addressed to [defendant], get over it. 7:33 a.m.: may be [the parties' daughter]'s father but he's married to me now. He left you. We can go where ever we want TOGETHER.
7:33 a.m.: And don't worry. I wasn't going anyways. Save ur breath for someone who gives a shit about what you think. 8:08 a.m.: I read the text when u told him that it was only addressed to him. So don't deny it. 8:08 a.m.: I am over myself. U r the one who needs to realize ur marriage is over and u can't tell him or me what to do or where to go 8:10 a.m.: I will. And u stop telling me where I can and can't go. 8:19 a.m.: Then stop textin [sic] me. I don't want you saying anything about me. Period. I don't like to be associated with u in any way. So stop telling me where I can go. 8:19 a.m.: And I'm glad ur happy. So are we.*fn2
The next incident of alleged texting harassment occurred on June 25, 2010. The topic of discussion on this date concerned the parties' daughter's SAT score. Defendant sent plaintiff the following eighteen text messages between the hours of 6:50 a.m. and 11:34 a.m.:
6:50 a.m.: A[n]y word on her sat score? 8:33 a.m.: A[n]y word on her sat score? 9:29 a.m.: A[n]y word on her sat score? 10:02 a.m.: Add this to the list 10:31 a.m.: Why don't you just tell me. Whats the big deal. 10:40 a.m.: By you not telling me things about our kids is proof that you are to blame for the kids acting the way view [sic] do to me. It confirms what everyone is telling Me that you are telling things to the kids that it should be between you and me. Maybe everyone should know that you screwed a married man had him over your house more than once. Should have etexmne [sic] when I told them you never told me about the banquet. Thought the women wer[e] going to cry. 10:41 a.m.: Now they see who you are and why the kids don't talk to me. 10:50 a.m.: You are playing this game by not telling me t[h]ings about our kids. All I ask is to let me know ionsortant timing r [sic] with our kids. And you don't. 10:51 a.m.: Example you know her score and you don't tell me. Proof. 10:56 a.m.: Proof you are holding info from me about our kids. 11:00 a.m.: Simply asking you a question about our daughter's education and you choose not to tell me. Why? 11:02 a.m.: [addressing plaintiff by her first name] what did she score 11:04 a.m.: Every body asked why didn't [plaintiff] tell you? And them she said o my god I bo so sorry [sic]. 11:06 a.m.: Can you just tell me t[h]ings about [their son] and [their daughter]. I need you[r] help with them. 11:10 a.m.: So we both don't look like ass hole parents that don't talk. Do it for [our children]. So we are not embarrassed im north [sic] 11:31 a.m.: Do you know why she won't talk to me cause it stopped the same time the emancipation. I built the chariot was planning on taking her re visit college and tiben bomb nothing [sic]. 11:34 a.m.: Put our diff aside and help me with the kids. I want to be apart me [sic] their life Plaintiff works Monday through Friday in the construction department of a municipality. She testified defendant sent these messages on a Friday and, because she usually arrives at work around 8:15 a.m., most of the text messages were sent to her during working hours. Plaintiff keeps her phone in her purse, and the purse in her desk. The phone vibrates when a message is received.
Plaintiff testified she responded to defendant's eighteen text messages "one time." She told him she didn't know the SAT score and "to contact [their daughter] directly. She is 17 years old, [and] has a cell phone." Plaintiff did not produce a copy of her response text message to defendant, or otherwise indicate to which of defendant's eighteen messages she responded. Defendant stopped texting plaintiff after she responded.
The final texting incident occurred on June 28, 2010, the Monday following the June 25, 2010 "SAT scores" event. According to plaintiff, "there was no communication over the weekend." On Monday morning, plaintiff began receiving the following text messages from defendant:
8:54 a.m.: Did you find out [their daughter's] sat score? 9:03 a.m.: [calling plaintiff by her first name] we are both legal guardians, I don't understand why you withhold in[f]o[r]mation from me. I paid half me [sic] that test.
If I don't hear from you by the end Me [sic] today june 28 2010 with her score I will inform my attorney. Its wrong what you are doing with my and kids relationship.
Consider this my last request for her sat score? 9:11 a.m.: I've had it with you ruining my relationship with our kids. 9:51 a.m.: FYI, I pay you $2,800 a month more than what you make. We pay almost $5,500 together for our kids. It's not you paying alone which you paint the picture of too. 9:51 a.m.: the kids. Don't kid yourself cause it could stop one day According to plaintiff, she called defendant and asked him to stop contacting her at work. She decided to call rather than text "because [she] thought it was  faster." When she reached defendant on the phone, "he started to get angry and yell at me or spew at me and then said 'Everybody knows you're nothing but a fucking scorned woman' and that's when I put him on speaker and then he hung up." Plaintiff then sent defendant a text message asking him to stop contacting her. Again, plaintiff did not ...