November 7, 2011
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-737-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 19, 2011 -
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from a final restraining order under the Protection Against Domestic Violence Act, N.J.S.A. 2C:25-29. Defendant's estranged wife obtained the order after the court found defendant committed an act of harassment against her. See N.J.S.A. 2C:33-4 (defining harassment); N.J.S.A. 2C:25-19 (defining harassment as an act of domestic violence).
The parties were married in 2003. They were living in Pennsylvania when they first separated in 2009. A Pennsylvania court issued a custody order on January 12, 2010, granting plaintiff primary residential custody of their son, born in November 2008, and gave defendant parenting time on Wednesdays from 5:00 p.m. to 8:00 p.m. and Saturdays from 9:00 a.m. to 5:00 p.m. At that point, plaintiff remained in the Pennsylvania marital home. In May or June of 2010, the parties attempted reconciliation and defendant resumed living with plaintiff and their son. They lived together for about six months, without modifying or vacating the custody order.
On the evening of Thursday, December 9, 2010, plaintiff told defendant that she did not believe the marriage was working. Defendant responded by telling plaintiff to "get the fuck out." Plaintiff slept in the child's bedroom that night, and the next day, after defendant went to work, she left the home with their son. She removed her belongings, as well as a disputed amount of the furniture, clothing, and toys. She sent defendant an e-mail at about 2:30 p.m. that day telling him she had moved to her parents' Mercer County, New Jersey home, and had taken their son pursuant to the custody order, which she would honor.
In response, defendant repeatedly called and texted plaintiff. Although many of the attempts were unsuccessful, defendant's phone records marked in evidence reflected one thirty-nine-minute telephone conversation on the afternoon of December 10, 2010, and a twenty-one-minute call around 8:45 a.m. on December 11, 2010. The latter call was preceded by eight unanswered calls, starting before 6:00 a.m., and followed by nineteen apparently unanswered calls including ten in one hour. Plaintiff claimed that defendant made many more calls and texts than those detailed in his phone records in evidence.
Plaintiff testified that defendant told her after she left with the child that "he's a walking zombie, he's having panic attacks, and he's extremely depressed. Until death do us part and I can't live without you."
On Saturday, December 11, 2010, defendant was entitled to parenting time, but plaintiff advised defendant that she would not let him pick up their son from her parents' home. She testified she was concerned about his ability to transport the child safely, as his driving privileges were suspended because of driving-under-the-influence convictions. She stated in an e-mail sent that morning:
I need to stress to you again I am not trying to keep [the child] from you. We are receiving conflicting information from our attorneys and until they communicate with each other with regards to correct custody, as I have told you [our son] will remain with me at my parents. You have no license in NJ and until you make the appropriate arrangements I am not comfortable releasing [him] to you in some taxi as you suggested.
Please contact me via e-mail as previously requested.
Defendant responded in an e-mail admitted in evidence, "You are 150% keeping him from me." He then appealed to her in the e-mail to resume their life together and offered to attend counseling and do "[w]hatever it takes" to be "a happy family again." Later that day, he asked again in an e-mail whether he could take the child to the mall and plaintiff responded by e-mail that he would be able to spend time with their son "when there is clarification of the custody order. I suggest that our attorneys speak on Monday."
The parties agreed to resume scheduled parenting time on Wednesday, December 15th. Accompanied by her mother, plaintiff drove to the marital home in Pennsylvania and delivered the child at the front door at 5:00 p.m. Plaintiff remained in the area, rather than go back and forth to New Jersey. When she returned to retrieve the child at 8:00 p.m., she found the house empty and no sign of defendant or the child. Plaintiff testified that she was terrified. She called defendant multiple times with no answer. She asked him by text to return the child, and defendant texted back "no way" and that he was keeping the child overnight.
Plaintiff sought police assistance in Pennsylvania and New Jersey to locate the child. She ultimately went to the Hopewell Township Police Department and obtained a temporary restraining order based on the allegation that "[d]efendant made numerous phone calls, text messages and e-mails to the victim about their relationship and child custody involving their child[.]" The restraints addressed defendant's contact with plaintiff, but not custody, possession of the marital home, or support.
Upon returning to her parents' house around midnight, she found an e-mail that defendant sent at 6:44 p.m. on December 15th, which stated, in relevant part:
I'm sorry it has come to this, but we have been back together for almost a year now.
Things in the past were exactly that. I have [our son] in a very safe and comfortable place and will be with him for the next 5 days (same amount of time you took him from me). There is no excuse for taking him the way you did. If you have issues with me, you take them out on me.
You don't take them out on [our son] and treat him like a pawn.
Plaintiff testified that the e-mail, rather than alleviate her concerns about her son's location, caused her anguish. Defendant's choice of language, that their son was in a "very safe and comfortable place" was "creepy." His continuing refusal to disclose their son's whereabouts terrified her. Eventually, after police involvement, defendant was persuaded to return the child to plaintiff on December 17, 2010. The parties thereafter followed the Pennsylvania custody order.
Plaintiff also testified about a prior history of domestic violence. She described instances of verbal abuse. She alleged that defendant often abused alcohol, became irrational and unpredictable, and used foul language, calling her obscene names in the presence of their son, who then repeated what he heard. During the episodes of verbal abuse, plaintiff testified that defendant would "lash out in anger at me, yell at me, scream. He would shake his fists in the air. . . . sometimes he reaches a point in anger that he becomes physically abusive to himself and rips out his hair. . ." She testified that he frightened her during those outbursts, which were unprovoked. She also claimed that defendant punched holes in the wall of the house in anger or frustration. Although she admitted that he "never touched" her in violence, she alleged that "at previous times" he pushed a crib railing against her.
Plaintiff alleged that in April 2009, before their most recent attempt at reconciliation, defendant came home after drinking early in the day, and cursed at her as she cleaned the house. Defendant then packed his overnight bag and left for a hockey game saying that he would not be coming home that night. With the house locked and plaintiff and the parties' son in bed, defendant returned to the home between 1:00 a.m. and 2:00 a.m. Finding the doors locked, he began to pound on the door and scream "open that fucking door, open the door." Given the hour, defendant's earlier drinking, and his screaming, she assumed that defendant was drunk, and did not feel safe letting defendant into the home. Instead, she called the police to intervene. In the meantime, defendant used a power drill to try to disable a lock, and swung a golf club near a bay window, while yelling, "I know you hear me, fucking bitch. Open the fucking door."
The police responded and spoke to both the parties. One of the responding officers testified that plaintiff had voiced concern that defendant had been drinking. The officer testified that defendant stated that he wanted to leave without entering the home, so the officer performed a test of defendant's blood alcohol level, determined that it was under the legal limit, and permitted defendant to leave. The officer testified that defendant did not display other obvious indicators of intoxication, such as bloodshot or glassy eyes or slurred speech.
Plaintiff also testified that in August 2010, during the parties' attempted reconciliation, they disagreed over defendant's proposed purchase of a luxury car. Defendant allegedly called plaintiff a "fucking cheap Jew." Plaintiff left the room, and defendant followed, calling her a "bitch" and "a fucking piece of garbage." He then said, "Don't you know I know people who can make other people disappear?"
Plaintiff testified that a couple months later, in October 2010, she was about to leave home with her son for her birthday celebration with her parents and grandparents. Defendant entered the driveway and told her she could not take the child, and that if she left, he would destroy everything in the house that belonged to her. Defendant stood behind plaintiff's car in the driveway and screamed at her in an attempt to prevent her from leaving. She threatened to call the police if he did not relent, which he then did.
She also claimed that in the days before their most recent separation, defendant patted her down before bed on three occasions, jealously examined her cell phone's call history, and inspected her undergarment drawer.
In his testimony at trial, defendant admitted that he told his wife to "get the fuck out" after she said that she did not believe the reconciliation was working. He justified his conduct on December 15, 2010, claiming that it was an appropriate response to plaintiff's decision to leave the home with the child. "Like I said, you just can't take a son or a daughter out of a house when you're living together. It's just not the right thing to do." He denied that he withheld the child's location once the police contacted him. He also denied making more calls to her after she left from a line not reflected on his phone records.
Defendant admitted calling plaintiff a "bitch" and "names like that" and said maybe he had "dropped" the "c-word" but denied calling her a pig or a Jew. He also denied tearing out his hair, pushing the crib against her, or punching holes in the wall. He said he was not "an angry person." He admitted that the parties argued, but claimed that she cursed at him as well, which she denied.
Defendant acknowledged that he was twice convicted of driving under the influence, once eight years before trial and once in September 2010, involving blood alcohol levels of .24 and .22. He also admitted to falling through a plate glass window of a restaurant where he was drinking. However, he testified that a substance abuse evaluation based on his own self-reporting concluded that he did not need alcohol treatment. He testified, "I don't drink that often."
Regarding the incident involving the discussion of the luxury car, defendant denied that he called her a cheap Jew, or threatened her by claiming to know people who could make other people disappear. However, he neither confirmed nor denied the incident on the driveway when he allegedly threatened to destroy plaintiff's belongings if she left with the child for a birthday celebration. He admitted that he had inspected her cell phone, but claimed that she did the same thing, as well as review his Facebook page and e-mails. However, he did not address whether he patted her down, or searched her undergarment drawer. Nor did he address whether he sent plaintiff messages after she left the marital home on December 10th that reflected that he was suffering severe emotional turmoil, and perhaps contemplating self-harm, such as he was a "walking zombie," he was "extremely depressed," and "[u]ntil death do us part and I can't live without you."
In determining to enter the restraining order, Judge Mark Fleming found that defendant committed a predicate act of harassment by removing and keeping the child in an unknown location and sending the December 15th e-mail. He found that defendant had the purpose to annoy and alarm.
I basically find that defendant's intent in taking the action that he did on December 15th was done at least in part to annoy and alarm the plaintiff. Regardless of whether he felt wronged by plaintiff's conduct in the days leading up to December 15th, his decision to quote have [the child] in a very safe and comfortable place and to be with him for the next five days, same amount of time you took him from me, was done with the knowledge and intent to annoy and alarm plaintiff.
The court specifically found that defendant's action went beyond "domestic contretemps." While the court found that the December 15th incident was ambiguous standing alone, it qualified as harassment when viewed in light of prior acts of domestic violence. While conceding that defendant's conduct was "understandable," the court stated that it was "inappropriate."
The court found that defendant had, in the past, screamed and used offensive language toward plaintiff. He also found that the incident of April 2009, when defendant attempted to enter the home in the early morning hours, constituted a prior act of domestic violence, as did the numerous instances of verbal abuse.
[T]here was an incident in April 2009 where defendant screamed and used offensive language towards plaintiff in an attempt to enter the house.
Whether he threw a golf club or drilled the lock I need not conclude in order to find that this is a prior incident of domestic violence.
I find by his own testimony whether he agrees that he called her every name in the book that she recited or whether it was only two-tenths of those names, that these names clearly constituted language designed to annoy and alarm the plaintiff.
The court also reviewed defendant's undisputed statement to plaintiff to "get the F out of the home." He concluded that "plaintiff has demonstrated fairly convincingly a prior history of domestic violence albeit not physical in nature."
The court found that a restraining order was needed to protect plaintiff in the future. The order was necessitated in part by defendant's lack of awareness, reflected in his testimony, that his behavior was improper. The court opined that absent a restraining order, acts of domestic violence would likely reoccur.
Defendant appeals. He raises the following points:
I. THE FAMILY PART COMMITTED ERROR IN ENTERING ITS FEBRUARY 18, 2011 FINAL RESTRAINING ORDER BY CONCLUDING THAT MR. ERNST COMMITTED THE PREDICATE ACT OF HARASSMENT; BY HAVING FAILED TO ADEQUATELY CONSIDER THE FACTS SURROUNDING THE EVENTS OF DECEMBER 10-15, 2010; AND HAVING ALSO CONCLUDED THAT BASED UPON CERTAIN PRIOR AMBIGUOUS EVENTS, MR. ERNST HAD THE REQUISITE INTENT TO HARASS MRS. ERNST.
1. The Family Part Erred By Concluding That Mr. Ernst Committed The Predicate Act Of Harassment.
2. The Record In This Matter Does Not Support A Factual Finding That Mr. Ernst Committed Harassment As Defined By N.J.S.A. 2C:34-4.
3. Nothing In Mr. Ernst's Prior Conduct Justified The Entry Of The Family Part's Order.
4. No Need Was Shown For The Entry Of The Relief Sought.
5. The Family Part Used The Incorrect Standard Of Judging Mr. Ernst's Conduct On The Basis Of Its Appropriateness. Appropriateness Is Not A Standard Contained In The Prevention Of Domestic Violence Act.
II. TO AFFIRM THE FAMILY PART'S FINDING OF DOMESTIC VIOLENCE IN THIS MATTER WOULD DO VIOLENCE TO THE LEGISLATIVE INTENT INHERENT IN N.J.S.A. 2C:25-18 ET. SEQ. AND TO WRONGLY MERGE CONCEPTS OF CUSTODY AND PARENTING TIME LAW WITH THE PRINCIPLES INHERENT IN THE PREVENTION OF DOMESTIC VIOLENCE ACT.
Our scope of review of the trial court's fact-finding is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Rova Farms v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). A trial court's findings of fact should be upheld if they are supported by "adequate, substantial, and credible" evidence. Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Rova Farms, supra, 65 N.J. at 484). "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale, supra, 113 N.J. at 33 (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). We should be especially reluctant to disturb a Family Part judge's fact-finding. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. On the other hand, we owe no special deference to a trial court's legal interpretation of a statute, or the "legal consequences that flow from established facts." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Applying this standard of review, we discern no error in the court's application of the law, and conclude the court's fact-findings were adequately supported by the record.
Although the court did not specify the subsection of the harassment statute that defendant violated, the court apparently relied upon both subsections (a) and (c) of N.J.S.A. 2C:33-4:
[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:
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
The statute requires proof of a "purpose to harass" whether the case involves harassment under subsection (a) or (c).
The Supreme Court recently emphasized the care that a trial court must exercise in distinguishing between the ordinary disputes, disagreements, and irritations common in a domestic relationship, and those actions that cross the line into domestic violence. J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011). In J.D., the Court reversed entry of a restraining order where the trial court had failed to find a purpose to harass. The defendant in J.D. passed by the plaintiff's home in the early morning hours to document her cohabitation with another man, which the defendant intended to use to support an effort to secure custody of the parties' children. Similarly, in L.M.F. v. J.A.F., 421 N.J. Super. 523 (App. Div. 2011), we reversed a finding of harassment where the trial court failed to find that the defendant-father had the purpose to harass. He repeatedly texted his former wife to obtain information about their daughter's academic performance.
In this case, Judge Fleming expressly found defendant's purpose, at least in part, was to harass when, on December 15th, he removed the child from the marital home, refused to return him or disclose his location, and stated that he intended to keep the parties' son "in a very safe and comfortable place" for the next five days. Thus, we are unpersuaded by defendant's arguments that J.D., supra, and L.M.F., supra, compel reversal.
The trial court carefully engaged in the delicate task of "[d]rawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of 'ordinary domestic contretemps.'" J.D., supra, 207 N.J. at 475 (quoting Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995)). The court considered prior acts of domestic violence consisting of verbal abuse and the behaviors during the incident of April 2009. His findings of those prior acts were adequately supported by the record.*fn1
Turning to the specific forms of harassment involved in this case, we are mindful that subsection (a) of N.J.S.A. 2C:33-4 is generally focused on the mode of speech employed, and not a statement's content. State v. Hoffman, 149 N.J. 564, 583-84 (1997). Defendant did not send the December 15th e-mail anonymously, or at an inconvenient hour, nor did he use coarse language. The Court stated that the "catchall provision of N.J.S.A. 2C:44-3(a)," which prohibits communications made in "any other manner likely to cause annoyance or alarm," should "generally be interpreted to apply to modes of communicative harassment that intrude into an individual's 'legitimate expectation of privacy.'" Id. at 583 (citation omitted).
However, in applying the statute, a court may not ignore the content of the relevant statement. For example, we found harassing under subsection (a) a former boyfriend's text message to the plaintiff when she was home alone with her daughter, "I can see you are watching Desperate Housewives now." Pazienza v. Camarata, 381 N.J. Super. 173, 178, 183-84 (App. Div. 2005). Although the defendant actually was far from the scene, the statement led the plaintiff to believe she was being watched, and made her upset, alarmed, and fearful for her safety and her daughter's. Id. at 178. We concluded, "The Desperate Housewives text message . . . when viewed in the context of defendant's prior conduct toward plaintiff, was likely to cause plaintiff annoyance, which means 'to disturb, irritate or bother.' The nature and content of the message intruded upon plaintiff's legitimate expectation of privacy." Id. at 183-84 (emphasis added).
Similarly, there was sufficient evidence in the record in this case for the court to conclude, in light of defendant's prior conduct, that his "very safe and comfortable place" statement would not only alarm and annoy, but also intrude upon plaintiff's expectation of privacy. It propelled her from the peace and comfort of her parents' home, and into a frantic search for her son that led her to contacts with the police in two states.
Regarding harassment under subsection (c), the record evidence supported a finding that defendant "engage[d] in [a] . . . course of alarming conduct . . . with the purpose to alarm . . . ." N.J.S.A. 2C:33-4(c). In contrast to "repeatedly committed acts," a "course of conduct" "does not require any minimum amount of time, duration or separate components." State v. J.T., 294 N.J. Super. 540, 545 (App. Div. 1996). Thus, it was harassment under subsection (c) for the defendant in J.T., supra, to situate himself for three hours outside the house where his wife would see him if she let out the dog or went to the car. "Placing oneself in a location and remaining there for some time may constitute a 'course of conduct.'" Id. at 545.
Likewise, here, defendant engaged in a "course of conduct" when he removed the parties' child from the marital home where plaintiff was scheduled to retrieve him; refused to disclose his whereabouts, texting "no way," when asked; e-mailed plaintiff that their son was in a "very safe and comfortable place"; and maintained custody of the child for two days. Based on ample support in the record, the court found that defendant's actions purposefully alarmed plaintiff.
We give no lesser weight to the court's decision because the judge candidly recognized the difficulty of the issues presented, found that the December 15th incident standing alone was ambiguous, and that defendant's actions were in some respects "understandable." Although Judge Fleming stated that defendant's conduct was inappropriate, he rested his decision on his analysis of the statutory elements.
Defendant mischaracterizes the trial court's decision in arguing that the court mistakenly found that defendant committed harassment simply by keeping a child as part of a custody dispute. The harassment here consisted of (1) defendant's alarming communication that he was keeping the child in an unknown place, where he would be "very safe and comfortable"; and (2) defendant's alarming course of conduct, which included that communication plus defendant's unilateral abandonment of the parenting time arrangement under the Pennsylvania order, his removal of the child to an unknown location for two days, and his refusal to disclose that location. Particularly in light of the prior acts of domestic violence, the facts presented are far different from those of a common dispute over one parent's unilateral decision to limit or delay parenting time by the other parent.
Finally, we find no error in the court's determination that a restraining order was necessary to protect plaintiff. The court properly engaged in a separate inquiry regarding the need for restraints. See Silver v. Silver, 387 N.J. Super. 112, 126-28 (App. Div. 2006) (requiring the court, after finding the commission of a predicate act of domestic violence, to make an inquiry whether a restraining order is necessary to protect the victim from an immediate danger or to prevent further abuse based upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6)). The court's finding was not conclusory. The court relied on the history of domestic violence, identifying specific instances, and noted that defendant's lack of self-awareness, and his insistence that his behavior was justified, made it likely that he would repeat his harassing behavior.
In sum, we find no error in the court's finding that defendant committed a predicate act of domestic violence and a final restraining order was needed to protect defendant from future acts of domestic violence. Ibid.