October 6, 2011
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-01-572-11B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued September 2, 2011 --
Before Judges Alvarez and Nugent.
Plaintiff S.M.K. appeals the November 15, 2010 Family Part involuntary dismissal of her complaint under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, and the resulting dissolution of a temporary restraining order (TRO) she had previously obtained against defendant C.R. We affirm essentially for the reasons stated by Judge Kyran Connor.
The matter was tried on November 3, 2010. Plaintiff testified, as did two witnesses on her behalf. At the close of plaintiff's case, defendant moved for a directed verdict, contending that plaintiff had failed to establish the predicate offense of harassment under any subsection of the statute, N.J.S.A. 2C:33-4, because she had not proven a purpose to harass. Defendant also argued that plaintiff failed to establish criminal trespass, N.J.S.A. 2C:18-3. The statute requires a plaintiff who seeks the issuance of a restraining order, as a threshold matter, to establish by a preponderance of the credible evidence, a predicate act of "domestic violence." N.J.S.A. 2C:25-19(a); Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Plaintiff opposed the motion for a directed verdict, and the court reserved decision.
On November 15, 2010, in a decision rendered from the bench, the trial judge found that defendant had not committed acts of harassment. Although he did find that plaintiff had proven the predicate act of criminal trespass under N.J.S.A. 2C:18-3(b), he concluded that a restraining order was not "necessary to protect the victim from an immediate danger or to prevent further abuse." See Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). The trial judge explained that he was "finding it difficult to get past the fact that no violence of any sort, nor any threats of violence[,] are said ever to have characterized this relationship." He observed that defendant's communications were not "enough for annoying or alarming harassment," as the communications were "non-anonymous, non-coarse and non-intrusive." Since plaintiff had functioned as defendant's attorney, it was "at least counterintuitive to any notion that  [d]efendant was a controller or abuser in the relationship." For these reasons, the judge granted the motion for a directed verdict, dismissed the case, and dissolved the TRO.
The facts developed at trial are as follows. The parties had a dating relationship beginning in 2008 and ending in June 2009. Thereafter, in the latter part of June 2009, defendant came to plaintiff's home demanding the return of a credit card that she had left there. Plaintiff asked defendant to leave, and after an initial refusal, she eventually did so.
Plaintiff testified that after this incident, defendant sent her "nasty" text messages. Plaintiff could not produce the messages because she had purchased a new phone prior to the hearing, and all the relevant texts and voice mails were on the old phone which she discarded. The only details plaintiff recalled regarding the communications were that they related to her elderly dog, a source of conflict between the parties during the relationship. Plaintiff claims she became so apprehensive regarding these contacts that she went to stay for a few days at a friend's home and asked defendant not to contact her again. On July 10, 2009, defendant sent plaintiff an apologetic email and continued to forward emails through the month of August.
On September 11, 2009, defendant emailed plaintiff expressing her condolences on the anniversary date of plaintiff's mother's death. Plaintiff found this disturbing as she had not told defendant the date of her mother's passing. In that same email, defendant referred a client to plaintiff. On September 29, 2009, defendant emailed plaintiff a second time, asking about the referral, sending her regards to plaintiff's dog, and requesting instructions as to how she could obtain a copy of her divorce judgment.
On October 31, 2009, plaintiff wrote to defendant, directing her to stop "emailing, calling, coming to my home." Sometime around February 2, 2010, defendant communicated with plaintiff, this time on Facebook, regarding plaintiff's October letter. Defendant also congratulated plaintiff on her engagement and asked if she should forward warranties for an item in plaintiff's possession to plaintiff's office.
On July 22, 2010, defendant asked plaintiff's fiancee to become her Facebook friend. Plaintiff had blocked defendant from access to her Facebook page but, on August 23, 2010, defendant's daughter attempted to "friend" plaintiff. Sometime in August or September 2010, defendant contacted the mother of a person plaintiff previously dated, seeking to confirm that she was the individual who had previously dated plaintiff.
On October 6, 2010, defendant went to plaintiff's home and knocked on the front door. When no one answered, defendant left a note on plaintiff's car. In the note, defendant said that she had cancer, a short period of time in which to live, and that in anticipation of her death, she had registered a luxury car in plaintiff's name. She also mentioned that she still had a "Borgata card" that plaintiff had given her two years prior and that she would mail it back to her. Plaintiff called police; defendant was gone before they arrived. Thereafter, plaintiff went to her local police station and signed a complaint against defendant for trespass as well as harassment. The following day, she obtained a TRO.
Plaintiff did not allege that defendant ever physically attacked her or damaged her property. Plaintiff did not allege that defendant ever made any explicit threat of harm. Plaintiff did, however, assert that a domestic violence final restraining order (FRO) had previously issued against defendant barring her from contact with another person, and that defendant was charged with two contempts of the order. When she attempted to testify in detail about these incidents during the course of the hearing, defense counsel objected. The objection was sustained.
Plaintiff raises the following points:
THE TRIAL COURT ERRONEOUSLY FAILED TO CONSIDER ALL FACTS SET FORTH UPON THE RECORD
THE TRIAL COURT ERRED IN ITS DETERMINATION THAT CRIMINAL TRESPASS DOES NOT CONSTITUTE DOMESTIC VIOLENCE
THE TRIAL COURT ERRED IN FINDING THAT THE ISSUANCE OF A FINAL RESTRAINING ORDER WAS NOT NECESSARY FOR THE PROTECTION OF PLAINTIFF DESPITE A FINDING OF CRIMINAL TRESPASS
THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF FAILED TO PRESENT A PRIMA FACIE CASE OF HARASSMENT AND [TO] SATISFY THE ELEMENTS OF N.J.S.A. 2C:33-4C
THE TRIAL COURT ERRED BY REFUSING TO PERMIT TESTIMONY REGARDING DEFENDANT'S PRIOR ACTS OF DOMESTIC VIOLENCE AGAINST THIRD PARTIES CONSISTENT WITH ROSIAK V. MELVIN, 351 N.J. Super. 322 (Ch. Div. 2002)
THE TRIAL JUDGE WAS BIASED AND ABUSED HIS DISCRETION AND SHOULD, THEREFORE, BE DISQUALIFIED FOR FAILING TO PERMIT PLAINTIFF THE OPPORTUNITY TO PRESENT HER CASE
We do not disturb the trial court's findings unless they lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). This is particularly true of findings in the Family Part, where we deferentially review a trial judge's credibility determinations and "feel for the case" based upon the judge's opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Under Rule 4:37-2(b), a motion for a directed verdict should be granted only if "upon the facts and upon the law the plaintiff has shown no right to relief." Conversely, "such [a] motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid.; see also Verdicchio v. Ricca, 179 N.J. 1, 30 (2004). Dismissal is appropriate only when "no rational jury could draw from the evidence presented by plaintiff" that an essential element of the plaintiff's case is present. Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 340 (App. Div. 2001).
It is undisputed that a predicate act alone, as the trial judge noted, is not sufficient to warrant entry of an FRO. Silver, supra, 387 N.J. Super. at 124. It is also undisputed that this was not a situation in which the parties were engaged in acrimonious matrimonial litigation, a custody dispute, or any other type of ongoing activity requiring future contact.
Plaintiff asserts that not only was the court's application of the Act to the facts erroneous, but also that, having found a predicate act, as a matter of law, a directed verdict could not be granted. We do not agree.
Even if a predicate act was proven, plaintiff cannot prevail unless she makes a showing that an FRO is necessary for her protection. See Silver, supra, 387 N.J. Super. at 126-27. Defendant's attempts at continuing contact with plaintiff, contacts known to be unwanted, did not establish a need to protect. Plaintiff was no doubt inconvenienced by those efforts, but her well-being, fortunately, was not endangered to the extent that entitles her to the Act's protection.
Plaintiff was not in "immediate danger," and would not be at risk of further acts of "domestic violence." Id. at 128. As the judge noted, he was not questioning defendant's intent to keep plaintiff "off balance after the relationship ended in June of 09." He "g[o]t it" that defendant was in "a subtle way  saying I haven't gone away, I still know a lot about you." But we agree with the judge's final conclusion that despite this purpose, no domestic violence restraining order was necessary for plaintiff's protection, and that therefore plaintiff had not established legal entitlement to relief. Even drawing all legitimate inferences in favor of plaintiff, defendant's conduct just does not rise to the level that is necessary in order for an FRO to issue.
The primacy of the second step in the Silver analysis - the determination as to whether an order is necessary for the protection of the victim - was recently reaffirmed. J.D. v. M.D.F., ___ N.J. ___, ___ (2011) (slip. op. at 37). That second step "serves to ensure that the protective purposes of the Act are served, while limiting the possibility that the Act, or the courts, will become inappropriate weapons in domestic warfare." Ibid. The judge's analysis on this score was correct even though the decision was rendered on an application for a directed verdict. Plaintiff's failure to offer a "scintilla" of evidence that defendant's conduct put her safety at risk required dismissal of the cause even though the predicate act was proven. See R. 4:37-2(b); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).
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