February 29, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1612-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2012
Before Judges Grall and Alvarez.
Defendant J.J.O. appeals from a final restraining order entered in favor of his wife, D.L.J.-O., under the authority of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Plaintiff has not filed a brief in response.
In her domestic violence complaint, plaintiff alleged that defendant committed an act of harassment, N.J.S.A. 2C:33-4, by kicking her in the leg and throwing a bag at her, "almost" causing her to fall down the basement stairs. Recognizing that we must accept factual findings of a judge of the family part that are supported by the record and defer to the judge's expertise, Cesare v. Cesare, 154 N.J. 394, 411-13 (1998), we reverse because the judge did not find that plaintiff proved harassment and because the record, viewed in the light most favorable to plaintiff and giving her the benefit of all reasonable inferences, does not permit a finding that defendant harassed plaintiff.
Plaintiff, defendant and one of the two officers who responded to plaintiff's call for assistance testified at the hearing on the final restraining order. One of the parties had filed a complaint for divorce when the judge conducted the hearing, but on this record it is not clear who filed that complaint or when that was done. Except as indicated in the following recitation of the evidence developed at the hearing, the facts are not disputed.
Plaintiff and defendant are married and have two children, ages three and five. When this incident occurred, the parties had been separated for a little more than a month after about six years of marriage.
At that time, defendant was living with his mother and worked nights, and plaintiff was living with the children and worked days. While plaintiff worked, defendant and his mother cared for the youngest child all day and for the older child when he was not at school. There is no evidence or allegation of any prior domestic violence, reported or unreported, in this family, and plaintiff admits that before this incident she did not have any reason to be concerned about her safety or the safety of the children in defendant's presence.
The incident took place on a Sunday evening. As arranged, defendant had picked up the children on Saturday morning and they stayed with him that night at his mother's home. That evening defendant called plaintiff and asked her to meet with him to talk about their marriage. Although she declined, she offered to have the conversation over the phone. He said, "never mind" and ended the call.
The following morning, defendant called to let plaintiff know that one of the children had a cough and suggested she pick the children up later than planned. Plaintiff agreed and said she would be there between 4:00 and 4:30 p.m. on Sunday; defendant thought she said between 3:00 and 4:00 p.m.
In any event, on Sunday plaintiff went to see her aunt, who was in the hospital, and she got caught in traffic on her way to get the children. At about 4:45 p.m., defendant called her and inquired about why she was late. According to plaintiff, he told her she could "f-around" with him but not their children, and he cursed at her, calling her particularly coarse names. When he placed a second call to apologize, she reports that she "called him an animal" and told him to "get off [her] back." He responded by calling her another foul name and ended that call.
Defendant later threw his cell phone and broke it. He was in his bedroom when he threw the phone, and there is no evidence that anyone else was present.
When plaintiff arrived at her mother-in-law's house and went to the side door, which opens to the kitchen, she heard one of the children screaming and defendant cursing and directing the children to get out of his house. By defendant's account, he was telling the children to go outside to their mother, and when she came to the door he was telling her to get out of his house. He admits that he was upset and not speaking calmly.
In response, plaintiff "immediately grabbed [her] kids and asked them what happened to them" and if defendant "hurt them." By her account, they were crying and shaking and too "traumatized" to speak, and defendant cursed at her again in their presence. He then kicked her left ankle and threw one of the bags holding the children's belongings at her. The bags were by the door and ready for plaintiff to take. The bag defendant threw held a comforter. Plaintiff admitted the kick left no marks or bruises but said it caused her pain. She also said that when defendant threw the bag she "almost lost [her] footing" and "almost fell downstairs."
By defendant's account, he kicked at one of the bags that held the children's belongings, which he had placed at the kitchen door, and he did not think he kicked plaintiff. He admitted throwing a bag but denied throwing it at plaintiff. She admits the bag did not strike her.
Although defendant's mother urged her not to, plaintiff called the police because she was afraid. She waited outside in her car with the children until they arrived. Officer Brian Donohue of the Hasbrouck Heights Police Department and his partner responded. Plaintiff told him she had no bruises or marks and said she was "okay" and would call her lawyer. She did not tell Donohue she was afraid of defendant; she told him she wanted to get her children home.
To Officer Donohue, defendant seemed very agitated and his breath carried the odor of alcohol. Defendant admitted that he had two beers with his meal, and the officer found his cell phone lying broken on the bedroom floor. Donohue was concerned about defendant, because defendant told him he was going to kill himself and asked the officers to shoot him. By defendant's account, when the officer told him that he could lose his children if he did not calm down, defendant responded by telling the officer he might as well kill him as take his children from him. Donohue did not recall the context of defendant's remark, but he said he takes statements about suicide seriously.
Donohue called a HELP line, and the responder suggested transporting defendant for evaluation. Defendant agreed to go to Bergen Pines County Hospital for observation that night and was discharged the following day. Plaintiff, who had taken the children home, later went to the police station, filed a domestic violence complaint and obtained a temporary restraining order.
There was some testimony about the nature of the marital relationship over the years. Although defendant had never hit or kicked plaintiff, she had been concerned about his drinking and abuse of prescription drugs and testified that he had sought treatment. Defendant denied that. He acknowledged taking, but not abusing, prescription medication, and plaintiff admitted that in the past she too had taken medication prescribed to address her sleeplessness and anxiety. Plaintiff did not testify about any controlling or overbearing behavior on defendant's part. She indicated that she was "mistreated." When asked to define what she meant by mistreated plaintiff said: "How I define that is [he] is an alcoholic. He's addicted to pain meds. His personality is extremely unbalanced and unstable."
Plaintiff explained that she wanted a restraining order because since this incident she is in fear for her safety and the safety of their children.
At the conclusion of the hearing, the judge found both plaintiff and defendant "credible in some respects and not credible in others." Noting that there was nothing he could "rely on in regard to prior domestic violence," he found that on the evening of this incident plaintiff "was running late," defendant "got ticked off," they "argued on the telephone" and both "probably used foul language back and forth on the phone." She came to his house and they "were involved in a struggle, an altercation, et cetera."*fn1 The judge found defendant did not assault plaintiff, intentionally kick her or throw a bag at her. Further, he found that "the kids were yelling and in a state of panic, screaming, crying[.]"
The judge concluded that "were it not for" defendant's decision to admit himself to a hospital for observation after this incident, his finding "would be that the standard of proof by a preponderance was not met by the plaintiff." Considering defendant's stay at Bergen Pines, however, the judge concluded that the "average person" in plaintiff's position would have reason for "some sort of fear . . . for herself and the kids if an incident like this happened and was over with after she left, or if an incident like this happened and then we found out someone said something and he was taken to Bergen Pines for observation."
On the foregoing findings and without considering their relevance to the legal definition of harassment, the judge found that an act of domestic violence had been proven.
The first question presented in a domestic violence case is "whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Without proof of a predicate act, a restraining order may not issue. N.J.S.A. 2C:25--26; N.J.S.A. 2C:25--29b; J.D. v. M.D.F., 207 N.J. 458, 473 (2011); see generally id. at 484-88 (applying the statutory definition of harassment to the evidence adduced at the hearing and discussing the trial judge's obligation to sufficiently articulate findings and conclusions consistent with the statutory standards).
Domestic violence is defined to include conduct by one spouse against his or her spouse that satisfies the essential elements of one or more of the fourteen offenses enumerated in N.J.S.A. 2C:25-19. See N.J.S.A. 2C:1-14k (defining "offense" to include crimes as well as disorderly and petty disorderly offenses). A domestic violence restraining order may not be entered without a finding that the defendant committed one of the predicate offenses. Franklin v. Sloskey, 385 N.J. Super. 534, 541-42 (App. Div. 2006). Harassment, N.J.S.A. 2C:33-4, is one of the predicate offenses. N.J.S.A. 2C:25-19a(13); J.D., supra, 207 N.J. at 484-88.
The essential elements of harassment are stated in N.J.S.A. 2C:33-4 as follows:
[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;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person. [(Emphasis added).]
In this case, the judge's concern about the implications of defendant's overnight admission to Bergen Pines led him to focus exclusively on whether a restraining order was necessary to protect plaintiff and the children. Indeed, the judge's observation that but for defendant's admission to Bergen Pines plaintiff would not have established an act of domestic violence, suggests the judge determined plaintiff did not establish harassment but did establish the need for a restraining order.
This was error because, as noted above, a restraining order may not issue without proof of a predicate offense. The need for a restraining order is a second inquiry in a domestic violence case, and a judge may not reach that question unless the judge has found that the defendant committed a predicate offense. J.D., supra, 207 N.J. at 488; Silver, supra, 387 N.J. Super. at 126--27.
The first question for this court is how to proceed in the absence of critical findings by the judge on the predicate offense. Where the judge has made factual findings and they are supported by the record, we accept them and defer to the judge's expertise. Cesare, supra, 154 N.J. at 411-13. When the judge has failed to make complete findings, our courts conduct an independent review to determine whether there is sufficient evidence to sustain the issuance of the order. J.D., supra, 207 N.J. at 488. Where an appellate court is "unsure" about the sufficiency of the evidence, a remand is appropriate. Ibid.
If, however, the evidence, viewed in the light most favorable to plaintiff, is insufficient to permit a finding that the defendant committed a predicate act, then it is appropriate to reverse the restraining order and dismiss the case. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969) (discussing the inquiry an appellate court must make to evaluate the adequacy of the evidence in a civil case).
If we were uncertain about whether the evidence was sufficient to establish harassment, we would remand for additional findings. J.D., supra, 207 N.J. at 488. But we are sure that it is insufficient. Accordingly, we have proceeded by accepting and relying on the trial judge's factual findings about the nature of the phone calls and of defendant's actions after plaintiff's arrival at his home because those findings are adequately supported by the record. Then, based on our independent review of the evidence considered in the light most favorable to plaintiff, we have concluded that the judge could not have found the essential elements of harassment.
As the statute set forth above makes clear, without proof that conduct specified in subsections a through c of N.J.S.A. 2C:33-4 is undertaken with "purpose to harass" the plaintiff, there is no harassment. Proof of purpose to harass requires proof that the defendant acted with a "conscious object" to harass. N.J.S.A. 2C:2-2(b)(1).
Prior acts of violence and threats may be considered in assessing a defendant's purpose. Pazienza v. Camarata, 381 N.J. Super. 173, 183 (App. Div. 2005). But there are none in this case.
The conduct the judge found does not support an inference that defendant was more probably than not acting with purpose to harass plaintiff. Defendant placed two allegedly harassing phone calls to plaintiff on the day of the incident. The judge found that the parties argued and exchanged profanities during those conversations. As noted above, these findings are supported by the record.
Defendant placed the first phone call to inquire about why plaintiff was late in picking their children up, and, albeit in coarse language, he cautioned plaintiff not to interfere with the children's interests. We have held that a father's objections to matters concerning the children, even when stated in coarse language, do not constitute harassment, D.C. v. T.H., 269 N.J. Super. 458, 462 (App. Div. 1994), and in these circumstances - late arrival - there is nothing to suggest that defendant acted with that purpose. J.N.S. v. D.B.S., 302 N.J. Super. 525, 527-28 (App. Div. 1997) (holding that vulgarity and anger inappropriately expressed by kicking a garbage can in the presence of the parties' young children was not harassment).
By plaintiff's account, defendant placed the second phone call to apologize for the first. Apology is a purpose that is clearly inconsistent with harassment. During that conversation defendant ended up cursing at plaintiff again and ending the phone call, but he did that after she responded to his apology by calling him an animal and telling him to get off her back. Again, the circumstances do not suggest a purpose to harass. See A.R. v. M.R., 351 N.J. Super. 512, 520 (App. Div. 2002) (concluding that although the content of the phone calls defendant made was not harassing, the simple act of placing the calls was harassing under the circumstances; the victim had fled to the safety of her sister's home after a brutal beating and a threat to kill).
Nor do we find any support for an inference of purpose to harass from defendant's Saturday night or Sunday morning phone calls. On Saturday night, he asked plaintiff to meet him and ended the call when she declined. On Sunday morning, he called to tell plaintiff about one child's cough and to offer to keep the children with him later than they had planned. Plaintiff had no objection to and accepted that offer.
Similarly, defendant's conduct following plaintiff's arrival at his home does not suggest acts or a course of action undertaken with a purpose of harassing plaintiff. Defendant had the children's bags packed and at the door in anticipation of plaintiff's arrival. He was agitated - as the trial judge put it, "ticked off" - when plaintiff arrived. The children were crying and upset, and defendant was yelling at them and her to leave his home. The record supports a finding that defendant upset his children, but there is nothing to suggest that he did that with the "conscious object" of harassing plaintiff.
Defendant's subsequent use of vulgar language and his kicking at and throwing a bag, which the trial judge found were acts not directed at plaintiff, is action of the sort that we have deemed inadequate to establish harassment. J.N.S., supra, 302 N.J. Super. at 527-28. In this case, there is no evidence of contemporaneous words or actions or of a violent or stormy history between the parties that would support a different result.
With no question, there is significant evidence that defendant was highly agitated, angry and distraught and that plaintiff viewed him as unstable. Those emotional states, without a description of conduct evidencing a purpose other than venting frustration and anger, are an inadequate basis for a finding of a conscious object to harass. State v. Duncan, 376 N.J. Super. 253, 262--64 (App. Div. 2005) (noting that "purpose" is the most difficult to prove of all of the mental states set forth in N.J.S.A. 2C:2-2, and concluding that the "venting of frustration or irritation" and use of obscenities does not demonstrate a purpose to harass); see also J.D., supra, 207 N.J. at 483-84 (discussing Duncan with approval).
We are confident that this record, viewed in the light most favorable to plaintiff, does not permit a finding that defendant acted with purpose to harass. Without evidence of a purpose to harass, there can be no finding of harassment. N.J.S.A. 2C:33-4. We are equally certain that the actions the judge found do not fall within subsections a through c of N.J.S.A. 2C:33-4. Accordingly, we reverse.
Our decision to reverse the final restraining order requires us to address custody and parenting time. The restraining order imposes significant restrictions on defendant's contact with his children. See Chernesky v. Fedorczyk, 346 N.J. Super. 34, 40 (App. Div. 2001) (noting that "familial relationships may be fundamentally altered when a restraining order is in effect"). This order demonstrates that point. It requires defendant's mother to supervise his parenting time, despite the fact that it appears defendant regularly cared for them during the day before he left for work at night.
Given that a complaint for divorce had been filed when this restraining order was entered and the time that has passed since entry of the order, it may well be that questions of custody and parenting time have been resolved by a judge or the parties. See N.J.S.A. 2C:25-29b(11) (authorizing entry of "temporary" custody orders). As defendant's attorney has not notified us of any change, however, we assume that these restrictions are still in place. Accordingly, we remand and direct the trial court to determine whether custody and parenting time is still governed by this restraining order. If it is, the judge should schedule a proceeding necessary to entry of an interim or final order in the divorce case as soon as is reasonably practicable but not later than three weeks from the date of this decision. We do not retain jurisdiction.
The final restraining order is reversed and vacated and the case is remanded for further proceedings that may be necessary to entry of an order addressing the parties' parenting arrangement in conformity with this opinion.