January 24, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-002121-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2012
Before Judges Alvarez and Skillman.
This is an appeal from a final judgment in an action brought under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, which concluded that although defendant had committed predicate acts of harassment upon plaintiff, a final domestic violence restraining order was not necessary to protect plaintiff.
Plaintiff and defendant were married in 1999. They separated and stopped living together in October 2007. Two children were born of the marriage, who were five and nine when this case was tried. Plaintiff has residential custody and defendant has substantial parenting time.
During the period between February 13 and March 8, 2011, defendant made 188 documented telephone calls and text messages to plaintiff.*fn1 Plaintiff estimated that only twenty of these communications related to defendant's parenting time and that the rest were intrusions into plaintiff's personal business, specifically, efforts by defendant to find out where plaintiff was, who she was with, and what she was doing.
Defendant also sent three text messages to plaintiff during the early evening hours of February 22, 2011, which contained the following threats of violence toward her boyfriend: If your boy talks shit about me again to one more person he's not going to leave here alive.
3 different people came up to me said he was talking shit. I didn't ask exactly what was said because I would have punched him in the face right then and there.
I'm dead serious. If I hear my name or the kids['] name come out of his at anytime even in the future I will hurt him.
In addition, defendant text messaged a pornographic photograph of his private parts to plaintiff.
Defendant did not deny that he had made the telephone calls and sent the text messages about which plaintiff testified. However, defendant claimed that more than twenty of his telephone calls to plaintiff related to his parenting time and that most of the calls were motivated by concern for his children. In particular, he objected in many of his communications to plaintiff living with a drug addict who had stolen some of the children's support money.
Plaintiff acknowledged that the boyfriend who had been living in her house with the children was a drug addict and that he had stolen money from her. Plaintiff testified that when she found out this information, she "kicked him out and . . . never let him back in the house." However, she admitted continuing her relationship with this person up to the time defendant made the telephone calls and text messages that were the subject of her domestic violence complaint. Plaintiff also admitted lying to defendant about her continuation of this relationship:
THE COURT: Well, you told him you weren't seeing him anymore, you weren't telling this defendant the truth with respect to the relationship? Were you?
THE WITNESS: No.
THE COURT: He didn't believe you? He thought you were lying to him? The defendant did, correct?
THE WITNESS: Yes.
THE COURT: And it annoyed you about what he believed was a lie, your seeing this person? Correct? He harassed you and kept calling you about it because he didn't believe you? He said I know you're seeing him, you say you're not but I know you are, stop lying to me. That's basically what he did, isn't it? From September, October on? Is that correct?
THE WITNESS: Even -- yes.
Based on this evidence, Judge Charles concluded that defendant had committed acts of harassment against plaintiff, in violation of N.J.S.A. 2C:33-4(c). However, the judge concluded that there was no need for issuance of a final restraining order to prevent future acts of domestic violence. In reaching this conclusion, the judge stated:
. . . There is nothing in the record that indicates that this defendant during the course of the marriage from 1999 forward to 2007 was physically abusive to this plaintiff. There is no testimony of this plaintiff being subjected to physical violence by this defendant, there's no record, no allegation of that and nothing in the testimony to indicate that.. . . .
The acts that were proved, the predicate acts that were proved in this case, communications, . . . were of a non-physical nature. They were harassing but they were not of a physical kind and in fact the record indicates that it was about parenting time in part, in part about this defendant's belief about what was not in his children's best interest, that is that there was a boyfriend involved who . . . had issues, one of which apparently was substantiated, he stole money from the children. That would cause a reasonable person to have some concern . . . about the person who was around his children.. . . .
This Court finds that under the context, the whole totality [of] circumstances of this case involving no physical violence currently, no past history of physical violence[,] involving verbal communications that were offens[ive] and harassing[,] that a final restraining order is not necessary to prevent another act of domestic violence.
On appeal, plaintiff presents the following arguments:
THE TRIAL COURT WAS WRONG TO DENY THE FINAL RESTRAINING ORDER AS A RESULT OF THE DEFENDANT'S EXCESSIVE PHONE AND TEXT MESSAGES.
THE DEFENDANT'S SENDING OF MESSAGES THREATENING TO CAUSE HARM TO THE PLAINTIFF'S BOYFRIEND IS SUFFICIENT FOR A FINAL RESTRAINING ORDER.
THE DEFENDANT'S SENDING OF A PORNOGRAPHIC PHOTOGRAPH OF HIS OWN ERECT PENIS IS SUFFICIENT FOR A FINAL RESTRAINING ORDER.
We reject these arguments substantially for the reasons set forth in Judge Charles' March 21, 2011 oral opinion. We add the following supplemental comments.
Under the Prevention of Domestic Violence Act, "acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present. N.J.S.A. 2C:25- 29a(1) and (2)." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Therefore, the commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25- 19(a) does not "automatically mandate the issuance of a domestic violence restraining order." Silver v. Silver, 387 N.J. Super. 112, 123 (App. Div. 2006) (quoting Kamen v. Eagen, 322 N.J. Super. 222, 227 (App. Div. 1999)). Rather, the court must make a discretionary determination based on the predicate act of domestic violence, any prior history of domestic violence, and any other relevant circumstances, as to "whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence." Id. at 128. Our review of such a determination is limited to deciding whether it constituted an abuse of discretion. Cesare v. Cesare, 154 N.J. 394, 416 (1998). We are satisfied, substantially for the reasons stated by Judge Charles, that his determination that a final domestic violence restraining order was not necessary in this case did not constitute an abuse of discretion.