May 2, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-0744-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 7, 2011
Before Judges Lihotz and St. John.
Defendant J.R. appeals from a final restraining order (FRO) entered against him by the Family Part under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The trial court's decision was based on a domestic violence complaint filed by defendant's brother, plaintiff D.R., alleging harassment, N.J.S.A. 2C:33-4, as the predicate offense for the injunctive relief sought.
On appeal, J.R. argues the trial court erred in issuing the FRO because D.R. did not present sufficient evidence to sustain the predicate offense of harassment. We disagree and affirm.
On December 1, 2010, the trial judge conducted a hearing prior to entering the FRO. The parties appeared without attorneys and the judge asked D.R. to explain why he sought a restraining order. The brothers had lived together in 2006 and their testimony reflected they continued to spend time together, until the incidents alleged in D.R.'s complaint. D.R. stated that on October 28, 2010, while the parties and their wives were driving together, a verbal argument erupted and then escalated when they arrived at their destination. D.R. stated that once outside the vehicle, J.R. "grabbed me by my left shoulder, swung me around on top of the car, started punching me in the face, and somehow ended up on the floor, and he continued to punch me in the face." After the incident, D.R. went to Atlantic City Hospital where he was treated and released. D.R. provided the court with five photographs depicting the injuries he sustained that night. The judge noted the photographs showed an injury to D.R.'s right cheek, "[a] bruise on the outside of the eye, as well as [a] cut and [a] bruise on the right side of the head near the hairline near the ear, and also a bruise . . . on the right forearm."
The judge asked if there were any other prior episodes of conflict between the parties. D.R. stated that in February 2007, an argument occurred between J.R. and his wife, during which J.R. "slapped her, and I got in it, and he came after me, punching me in my face and throwing me on the bed, and continuing to punch me in the face."
After the October 28 incident, D.R. stated J.R. sent him over 400 text messages within a twenty-four hour period. D.R. felt annoyed, alarmed, and threatened by the content of the text messages "that he's going to f**k me up whenever he sees me."
J.R. sent him this message repeatedly starting at 9:36 p.m. on February 28, 2007, and ending on 6:09 p.m. on February 29.
J.R. contends that on October 28, D.R. punched him first and that he was only defending himself when he assaulted his brother. He also presented hospital records for treatment he received on October 30 for a broken thumb he attributed to a fall after being struck by D.R. two days earlier. J.R. admitted that he actually sent over 1000 text messages in an attempt to "blow up" his brother's phone, but denied sending threatening ones. "I sent him an ugly picture of myself with the black eye, and then on the background it had Halloween noises." J.R.
admitted the purpose of sending the messages was to annoy and alarm D.R., although he claimed he was joking.
The trial judge found D.R. had not sustained his burden to prove he suffered an assault on October 28, presumably because the proofs suggested mutual fighting. However, the evidence provided the basis for the predicate offense of harassment, and the conduct necessitated the entry of an FRO.
Trial court fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)); Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010). The trial court sees witnesses firsthand and has a "feel of the case that can never be realized by a review of the cold record."
N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (internal quotation marks omitted). We give additional deference to factual findings of the family courts because they have special expertise, ibid., and we do not second-guess the exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
When determining whether to grant an FRO pursuant to the Act, the judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div. 2006). "First, the judge must determine 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:25-19(a) has occurred." Id. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.
Here, D.R. alleged that J.R. engaged in the predicate act of harassment, which provides in relevant part that 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. [N.J.S.A. 2C:33-4(a), (c).]
J.R.'s text messages were sent at utterly inconvenient hours, and were couched in coarse and abusive language. Based on the barrage of text messages sent over a twenty-four hour period, and viewed in the context of defendant's prior conduct toward plaintiff, the messages were intended to and likely caused D.R. annoyance. See Pazienza v. Camarata, 381 N.J.
Super. 173, 183-84 (App. Div. 2005) (holding that defendant's conduct constituted harassment under subsections (a) and (c) when he engaged in numerous unwanted communications, some including threats, with plaintiff over a two-month period). We see no reason to disturb the judge's finding that J.R.'s actions constituted a predicate act of harassment.
Next, there must also be a finding that "'relief is necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)); L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 536 (App. Div. 2011). It is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The determination of whether such an order should be issued must be made "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." Corrente, supra, 281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29(a)(1) and (2)); Peranio, supra, 280 N.J. Super. at 54. Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127.
We also see no reason to disturb the judge's finding that the FRO is necessary to prevent further abuse to D.R. We have considered defendant's arguments, and conclude that the judge's findings are supported by adequate, substantial, and credible evidence, and that the judge exercised sound discretion in issuing the FRO.
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