September 12, 2011
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0187-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 30, 2011
Before Judges Payne and Messano.
Defendant, G.M., appeals from the entry of a final restraining order (FRO), declaring her to have committed an act of domestic violence as set forth in the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 through -35, consisting of harassment pursuant to N.J.S.A. 2C:33-4c, by engaging in a course of alarming conduct with the purpose to seriously alarm or annoy her estranged husband, plaintiff F.M. On appeal, defendant argues that the FRO was not supported by adequate, substantial and credible evidence and should therefore be vacated. Defendant argues additionally that the trial judge improperly denied her the right to call a witness in her defense, defendant's superior, Sergeant Ribaudo, who was a witness to the events at issue and allegedly could have testified that defendant's conduct was not harassing. Agreeing with defendant's argument that the evidence does not support the entry of an FRO, we reverse.
At the trial of this matter, both parties appeared pro se and submitted to extensive questioning by the Family Part judge. No additional witnesses appeared. The record establishes that plaintiff and defendant were, at the time of trial in this matter, married but estranged. A divorce action had been instituted by defendant. The parties had two children, a son, age eight, and a daughter, age eleven, over whom they had joint custody. The couple was interracial. Plaintiff is an African American who was then employed as a police officer with the Borough of Roseland Police Department; defendant is white. Before their separation, they lived together in a house in Morristown. Thereafter, defendant moved to the Jersey Battered Women's Shelter. Plaintiff moved to an apartment in Roseland. However, they retained possession of the Morristown house.
Prior to August 13, 2010, defendant was the primary caretaker for the children. Following a motion by defendant for unstated relief,*fn1 a judge of the Family Part, apparently without a hearing, ordered that residential custody of the children be transferred to plaintiff, since defendant lacked stable housing, and she set a visitation schedule that gave defendant custody of the children from 5:00 p.m. on Friday to 5:00 p.m. on Sunday and on Wednesday from 4:00 p.m. to 9:00 p.m.*fn2
Prior to the events at issue, there had been considerable domestic violence litigation between the parties. As plaintiff expressed it at trial, defendant had at some point threatened that if he did not go to counseling or talk to her, she would go to his Chief of Police. Thereafter, she filed domestic violence complaints on a cycle of every thirty-five to forty days. As a result of the entry of successive temporary restraining orders (TROs), he had been taken from his position as a detective, which he had occupied for five years, and had been placed on desk duty as a patrolman, without a weapon or the ability to earn overtime. Further, the police conducted an internal investigation with respect to any complaint by defendant, and in accordance with the Attorney General's guidelines, he had been ordered to complete a twenty-six-week program of domestic violence group counseling.
While plaintiff is correct that a significant number of domestic violence complaints were filed, according to the judge, plaintiff was responsible for three, including the matter on appeal, whereas defendant initiated four. All were mentioned by the judge at trial, with details given as to some. Those that were discussed in detail generally concerned disputes over the children. Because neither party included plaintiff's domestic violence complaint in the record on appeal, we are unable to determine whether defendant had notice that this evidence would be adduced. As a consequence, we are unable to determine if defendant's due process rights were abridged at trial as the result of lack of notice of the claims against her. See J.D. v. M.D.F., ___ N.J. ___, ___ (2011) (slip op. at 22-26) (permitting introduction of evidence of domestic violence beyond that set forth in the complaint but holding that if such evidence is presented, it should be deemed by the court to be an amendment to the complaint as to which an opportunity to defend must be afforded).
On December 16, 2009, defendant filed a domestic violence complaint under docket number FV 14-645-10. A TRO was issued, and at that time plaintiff's service weapons and a hunting knife were confiscated, and he was assigned to desk duty.*fn3 However, an FRO was not entered. Defendant filed a second complaint on February 17, 2010 under docket number FV 14-796-10, which was also dismissed.
Further legal action occurred in March 2010. In FV 14-996-10, filed on March 7, 2010, plaintiff alleged that defendant was one hour late in producing the children for visitation and that, during that hour, defendant was utilizing a truck that he needed to pick up "something." He further alleged that defendant obstructed his efforts to obtain visitation with the children. A TRO was denied. In FV 14-924-10, instituted by defendant nine days later, she claimed that, in the course of a dispute regarding visitation with the children, plaintiff had assaulted her with his pickup truck. The matter was tried, and an FRO was denied, allegedly on the basis of plaintiff's testimony that defendant had jumped in the path of the truck. However, defendant claimed that a criminal action for assault remained pending. Plaintiff admitted that he had been arrested for assault as a result of the incident. Additionally he had been charged with contempt for violating a TRO by contacting his daughter when the order precluded him from doing so. However, the matter had not been heard at the time of trial.
In April 2010, plaintiff instituted FV 14-1091-10, in which he complained that, because plaintiff was living in a shelter, he had difficulty contacting his daughter. A TRO was denied. Also, in April 2010, plaintiff complained to the Morristown Police Department that defendant followed him with a video camera as he left the couple's former Morristown residence. An additional complaint, filed by defendant in April under docket number FV 14-961-10, was also dismissed.
Although it does not appear that complaints were filed, evidence of further domestic discord in the period of July 2 to 5, 2010 was introduced. At that time, plaintiff had visitation with the children. On Sunday, July 4, the couple were in each other's presence at church. Defendant attempted to give plaintiff his accumulated mail. However, he refused to accept it, claiming that the transfer in church was improper and that she should return the mail to the post office to be forwarded by it to him. A disturbance ensued that required the intervention of church security guards and deacons. When asked by the judge why he did not just take the mail rather than precipitating a scene, plaintiff responded that he did not want to have anything to do with defendant that would involve physical contact. Also, on that day, plaintiff claimed that defendant attempted to grab her son, thereby escalating tensions and requiring further intervention by church officials.
On July 5, defendant left a message for plaintiff stating that because she could not reach him and because he had retained custody of the children since July 2, she was going to call his job to learn where the children were. Following defendant's acknowledgement of this call, the judge asked how would plaintiff's employer know where plaintiff's children were. Defendant responded that the employer "would contact him [plaintiff] and have him call me and tell me where the children are." The judge then asked: "And get him in trouble?" Defendant replied: "No, sir, that's not my intent."
On July 17, defendant again called plaintiff, left a message, and without terminating the connection, resumed a conversation with a friend in which she called plaintiff the "N" word. In her defense, defendant stated that plaintiff had reported her to the Division of Youth and Family Services (DYFS) for child abuse*fn4 and stated to her that he had a warrant for her arrest.
According to plaintiff, the custody disputes in which the parties had engaged were resolved by the Family Part judge's entry of a custody order on August 13, 2010, transferring physical custody to him and establishing the visitation schedule that we previously described.
The events of Wednesday, August 18, 2010 are the subject of plaintiff's present complaint and this appeal. On that day, the parties attended a child support hearing, at which time plaintiff offered evidence that demonstrated that he owed no child support to defendant or reimbursement to the State. Thereafter, at approximately 2:40 p.m., either the plaintiff offered to give the children to defendant or defendant requested them for commencement of their scheduled Wednesday visitation.
When the time to return the children approached, defendant took them to the Morris Plains Quick Check, whereas it was defendant's understanding that transfer was to occur at the Roseland Quick Check. Confusion and telephone calls ensued, resulting in plaintiff's request that the children be delivered to the Roseland Police Headquarters where he was on duty. As the result of the miscommunication, defendant was one-half hour late in delivering the children, arriving at the police department at 9:30 p.m. Once there, she asked how the children would be cared for while plaintiff completed his shift, which ended at 11:00 p.m.*fn5 Plaintiff refused to tell her and commenced berating defendant for not bringing the children's clothing with her, stating that she had better bring their clothes the next time or he would report her. According to defendant, plaintiff then told her that she had better leave before he reported her for harassment. In response, plaintiff turned to the supervising officer on the scene, Sergeant Ribaudo, seeking his assistance in determining what care would be provided for the children. However, Ribaudo was told by plaintiff not to respond; that the dispute was a civil matter in which he need not become involved. After approximately ten minutes, defendant, who threatened to report plaintiff, was escorted by the Sergeant from police headquarters.
Defendant did not return, but instead, remained seated in her car in the parking lot in an effort, as plaintiff admitted on two occasions during his testimony, to determine whether a babysitter would arrive to pick up the children. Plaintiff testified: "She waited out front only God knows just to see who the babysitter was, because she knew I was still at work and she thought the babysitter was going to probably come there and grab the kids and go."*fn6 Defendant, in fact, remained in the parking lot for forty minutes, at one time calling plaintiff's supervisor for assistance. However, there is no evidence that a response to the call was given or even that it was received by a superior officer.
In the meantime, at 9:40 p.m., plaintiff left the police department with the children through a rear door and transported them to his apartment where a sitter was waiting. Plaintiff testified that defendant was parked in front when he left "but she never seen me leave the back of the police department." She remained upon his return, as he observed from the department's bathroom window, but he did not inform her that the children had been taken to his apartment and were under the care of a sitter. Upon his return, plaintiff memorialized what had occurred in a police incident report. An additional internal investigation was initiated against plaintiff the next day.
At the conclusion of the testimony, the judge found in connection with the August 18 incident that defendant should have dropped the children off at police headquarters and then left. Instead, she remained in the parking lot for forty minutes, making telephone calls for only a part of that time, and knowing that her presence was going to upset, and did upset plaintiff. Further, during this period, defendant called plaintiff's shift commander or "somebody even higher up the chain about the incident." On this basis, the judge found that defendant had committed an act of domestic violence consisting of harassment under N.J.S.A. 2C:33-4c by engaging in a course of alarming conduct with the purpose to seriously alarm or annoy plaintiff. The judge inferred motive from defendant's use of the "N" word - which the judge did not like and considered to be "a bad word" - to describe plaintiff in a conversation with another and from her admittedly understandable distress at losing residential custody of the children. In that regard, the judge observed: "I can only imagine, as a mother, how upset that made you when that order came down. I don't fault you for that, all right, being upset." The judge then entered an FRO without addressing whether the entry of restraints was necessary to protect plaintiff from harm, as required by N.J.S.A. 2C:25-29. See also J.D., supra, ___ N.J. at ___ (slip op. at 37).
To establish a violation of N.J.S.A. 2C:33-4c, plaintiff would have to provide proof, by a preponderance of the evidence, of the existence of a course of alarming conduct or a series of repeated acts, along with proof of a purpose to alarm or seriously annoy plaintiff. Id. at ___ (slip op. at 34). In this case, the trial judge based his decision on the fact that, on August 18, 2010, defendant had involved Sergeant Ribaudo and another superior officer in her attempt to determine how plaintiff planned to care for the couple's two children during the period before the end of his shift at 11:00 p.m., and that she had remained in the parking lot for forty minutes after leaving police headquarters. Although the judge did not cite it, there was also evidence that defendant had called plaintiff's supervisor on July 5, 2010, when she could not reach plaintiff, in an attempt to locate the children.
In the circumstances presented, we find the evidence insufficient to establish a "course of alarming conduct or a series of repeated acts." We note particularly in connection with the August 18 incident that it was plaintiff who suggested that defendant deliver the children to police headquarters.
Additionally, when asked what he planned to do with the children that evening, he declined to respond, when a response would clearly have diffused the situation. Further, plaintiff's own testimony suggests that he intentionally escalated matters by surreptitiously leaving with the children out of the back of police headquarters when he knew that defendant was parked in front, waiting to see if the children would be picked up by a sitter. And upon his return, he verified that defendant remained, but made no effort to inform her of his actions. The evidence thus suggests intentional provocation by plaintiff, not a course of alarming conduct on the part of defendant.
Further, we find evidence of an intent to harass to be lacking. In that regard, the Court has stated:
Although a purpose to harass can be inferred from a history between the parties, see [State v.] Hoffman, 149 N.J. [564,] 577 [(1997)], that finding must be supported by some evidence that the actor's conscious object was to alarm or annoy; mere awareness that someone might be alarmed or annoyed is insufficient. State v. Fuchs, 230 N.J.
Super. 420, 428 (App. Div. 1989) (reversing criminal conviction for harassment). The victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose. See State v. Washington, 319 N.J. Super. 681, 691-92 (Law Div. 1998). Moreover, when evaluating whether an individual acted with the requisite purpose, our courts must be especially vigilant in cases involving, as do many domestic violence disputes, the interactions of a couple in the midst of a breakup of a relationship. See Franklin v. Sloskey, 385 N.J. Super. 534, 544 (App. Div. 2006) (concluding that evidence established only a "dispute between a couple in the midst of a breakup, disagreeing over the future of their unborn child" rather than intent to harass); Bresocnik v. Gallegos, 367 N.J.
Super. 178 (App. Div. 2004) (concluding that letter expressing regret and continued affection did not reveal intent to harass). [J.D., supra, ___ N.J. at ___ (slip op. at 35-36).]
In the present matter, defendant queried plaintiff with respect to his arrangements for the children's care in the two hours before his shift was completed. When he refused to respond, defendant appealed first to Sergeant Ribaudo and then to another superior officer, seeking their assistance in obtaining information to which defendant was clearly entitled by court order. While she could have sought the assistance of the court in that regard, she would not have been able to obtain that assistance until the next day, whereas plaintiff's superiors were in a position to provide immediate aid. Similar reasoning applies to the July 5 incident.
During trial, the judge asked defendant how plaintiff's childcare arrangements were the Sergeant's business, and she admitted they were not. Additionally, the judge asked defendant if she would like plaintiff to ask questions about her at the shelter, to which she responded "no." The judge then said:
Imagine - imagine if the shelter was the entity that gave you [a] paycheck, how that would upset you when somebody comes in asking about your kids when they don't have anything to do with your situation with the kids. Zero.
Don't you think that would be upsetting?
Defendant agreed. Nonetheless, we do not regard the two circumstances as comparable. Sergeant Ribaudo, a superior officer, witnessed plaintiff's refusal to answer defendant's most basic question regarding her children's welfare. Under the circumstances, we see nothing unusual in her appeal to him as a bystander to obtain the requested information. Although defendant's calls to other superior officers are perhaps less justified, we find no evidence that those calls were motivated by a purpose to harass plaintiff, rather than by a desire to obtain withheld child custody and childcare information to which defendant was entitled.
Additionally, in the absence of any evidence suggesting such an inference to be justified, we are unwilling to infer a purpose on defendant's part to harass plaintiff from the fact that, on one occasion after being reported to DYFS and threatened with arrest, defendant referred to him in a conversation with another by the "N" word or from the fact that residential custody had been transferred to plaintiff five days prior to the events at issue.
As a final matter, as previously noted, the trial judge failed to analyze whether a final restraining order was necessary to prevent future abuse, as statutorily required.
N.J.S.A. 2C:25-29; J.D., supra, at ___ (slip op. at 37); L.M.F.
v. J.A.F., Jr., ___ N.J. Super. ___, ___ (App. Div. 2011) (slip op. at 20); Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006).
As a consequence, having given plaintiff the benefit of all reasonable inferences from the evidence presented, and accepting as true his testimony describing the events that led to his complaint, we conclude that 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:33-4c. We thus find no violation of the Prevention of Domestic Violence Act to have been proven, and we therefore reverse entry of the FRO, and order that defendant's name be removed from the Central Registry insofar as her inclusion in the Registry is based upon the order at issue. See N.J.S.A. 2C:25-34.
Having determined that the FRO in this matter was mistakenly entered, we decline to reach defendant's second argument, that she was denied the right to call Sergeant Ribaudo as a witness.