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E.L v. R.L.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 30, 2012

E.L., PLAINTIFF-RESPONDENT,
v.
R.L.M., JR., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-131-12.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 1, 2012

Before Judges Payne, Reisner and Simonelli.

Defendant, R.L.M., Jr. appeals from the entry of a final restraining order (FRO), obtained by his former wife, E.L., premised on a finding of harassment in violation of N.J.S.A. 2C:33-4a as the result of sending an allegedly excessive number of e-mails, and from the denial of his motion to vacate that order. On appeal, defendant argues that the trial court's decision was not supported by adequate, substantial and credible evidence, and was contrary to controlling legal principles. We agree and reverse.

I.

The record discloses that plaintiff and defendant were married on August 31, 1996 and were divorced on April 25, 2008. They had three children together: a son born in 1997 and daughters born in 1999 and 2001. Plaintiff has residential custody of the children, but defendant has liberal visitation. For many years, defendant had served as an athletic coach in town, coaching soccer, basketball, football, and baseball. Among those he coached were the parties' children.

Commencing prior to their divorce, plaintiff and defendant communicated extensively by e-mail. Plaintiff testified that, from March 9, 2007, approximately one year before the parties' divorce, to the time of trial, defendant has sent her 812 e-mails. Many - at oral argument defendant estimated 300 - were group e-mails sent by defendant to all parents of teams that he was coaching to advise of scheduling changes and the like. *fn1 The remainder, defendant claimed at trial without substantive contradiction, concerned the children. Their volume, according to defendant, resulted from the lack of any response or an inadequate response by plaintiff.

Notably, plaintiff made no complaint at trial regarding the content of the e-mails; her concern was only with their number. Plaintiff testified at trial that "[f]or the longest time, [she] tried to ignore them." However, she was told by the parenting coordinator retained by the parties that she should respond. Thereafter, she did, but defendant would follow up if he did not receive a prompt reply or if he did not like plaintiff's answer.

Matters appear to have come to a head when, on April 15, 2011, defendant stated that he wished to take the children on a summer vacation to Canada with numerous members of his family. Defendant's mother was to pay for the children's trip. Plaintiff refused to give her permission, stating that the vacation was planned for a time when she had parenting responsibility. The dispute was brought to the attention of the parenting coordinator who, on July 6, advised plaintiff to accede to defendant's request. Although plaintiff did so, she did not execute the paperwork necessary to obtain passports for the children until the parenting coordinator again was asked to intervene. The forms necessary to apply for passports were not signed until nine days prior to the planned vacation after, according to plaintiff, ten phone calls from defendant and his attorney and three e-mails from defendant. The two-day e-mail exchange between defendant and plaintiff that was marked in evidence at trial as the sole representative of communications between the two parties*fn2 was as follows:

E[.], Please go tomorrow to Pat's office and sign all the proper passport paperwork as guided by the [parenting coordinator] - please confirm this has been completed tomorrow - since you are off and not working this should be a reasonable request.

R[.]

To this, plaintiff responded:

R[.], Stop harassing me with this same request! First, you TOLD me on the phone last night to read my email regarding [the parent coordinator's] recommendation. Remember you asked to speak with me on the phone after talking to the kids. Second, you sent me an email TELLING me the same and how I should handle it.

E[.]

That message was followed the next day by:

E[.], Since you were at my attorney's office last week and picked up your $491 check and cashed it that part of my request is closed below. The open area of my request is the passport applications/forms/letters and

[K.'s] passport. Your attention and action is appreciated [s]o please, as recommended by the [parenting coordinator], sign off on the passport paperwork and forms/letters today as discussed with you yesterday/last night on the phone, your attention and action to this important matter is appreciated.

R[.]

Plaintiff answered:

R[.]

This is the THIRD contact/email on the same subject in less than 13 hours!

E[.]

As a consequence of plaintiff's delay, defendant had to take time off from work to drive twice to Philadelphia to obtain the passports.

On July 21, 2011, plaintiff obtained a temporary restraining order (TRO) against defendant. In her complaint, she alleged that defendant had contacted her 700 times in the past three years, while he had been told he could only e-mail her once per week*fn3 and could not be in close proximity or make gestures toward plaintiff. Additionally, on July 20, he had parked next to her, and he had contacted her eleven times in the past two weeks. On July 8, defendant had called plaintiff three times and sent four e-mails, "even when asked not to." As prior history of domestic violence, plaintiff alleged that in 2007 defendant had closed the garage door on her car when she tried to leave. In that year, he had also thrown a comforter down the stairs, had turned off the hot water and had grabbed plaintiff's arm. In 2008, defendant had thrown mail in plaintiff's car.

Trial of the matter took place on July 28, 2011. At trial, the evidence with respect to the parties' e-mail communications that we have recounted was given. Additionally, plaintiff complained that when one of the parties' daughters had accidentally broken her foot, defendant sent a twelve-page fax of the child's medical records to plaintiff's work location. Because plaintiff did not have a home fax machine, defendant also forwarded to her work location forms that she had to fill out in order to obtain admittance for the children in their school's gifted and talented program.

Plaintiff also testified that shortly after the divorce, she dropped sports equipment for the parties' son at defendant's house, and he would not let her leave. Thereafter, defendant suggested and plaintiff agreed that they meet at the local police station. But, arriving at that location, defendant would park behind plaintiff and would sometimes throw things, such as plaintiff's alimony and child support checks and a weekly communication folder, into her car. Once, he paid alimony and child support by check for a month in advance - a step that plaintiff claimed, without stating why, had tax consequences for her. Additionally, plaintiff testified that, on May 23, 2011, she attended her child's lacrosse game and defendant stood next to her. As a result, she sent defendant an e-mail asking why he had done it. Plaintiff also testified that defendant greeted her at a game in Basking Ridge in July, and that during a conference after a motion, he sat next to her at a conference table in the presence of the parties' attorneys until he was asked to move.

Testimony was also given by defendant at trial. Defendant stated that the problems with plaintiff arose because she did not respond to his communications. Speaking of the Canadian trip, he stated:

With the passports there was no confirmation. I was very concerned since she said for . . . almost 90 days she wouldn't do it and they're not going, that she would say she didn't get the message, so I left a voice mail on her home [phone]. I left a voice mail on her cell phone. I sent her two follow-ups, I believe, e-mails regarding the passports . . . . I didn't know what else to do and I had no time and it was an emergency, and I thought I took a mature approach to it.

Defendant also testified regarding the lacrosse game incident that he had been standing with friends, but left to use the rest room. When he returned to rejoin his friends, plaintiff was in the area speaking to others. He thought there was sufficient distance between them. Defendant also complained about harassing e-mails from plaintiff's boyfriend, who allegedly had attempted to run him over, and as a result, was the subject of a criminal complaint. Defendant noted as well that plaintiff had reported him to the Division of Youth and Family Services (DYFS), claiming child neglect,*fn4 but he introduced into evidence a letter from DYFS stating that the charges had been determined to be unfounded. Both parties acknowledged frequent e-mail communications to the parenting coordinator.

At the conclusion of the testimony, the trial court determined that, although plaintiff had characterized some of defendant's conduct as stalking, that charge would not be considered, since notice of it had not been provided in plaintiff's complaint. However, having found plaintiff to be credible and, to the extent that defendant's testimony was contrary to plaintiff's, having found defendant's testimony incredible, the court concluded that defendant's "bombardment" of plaintiff with e-mails had been done with the purpose to cause annoyance and alarm, thereby constituting harassment. Having found that defendant engaged in conduct constituting a predicate act under the Prevention of Domestic Violence Act, without further analysis, the court entered an FRO "to protect the plaintiff from future acts of domestic violence and future harassment."

The FRO barred defendant from plaintiff's and her boyfriend's residences and places of employment, and from stalking or harassing them. It required the parties to drop off and pick up their children at the local police department. It prohibited defendant from possessing weapons. And it limited defendant's contact with plaintiff to "1 email per week," which must be "only about the children, not harassing in nature, and . . . a reasonable length." All other matters "except emergencies about the children (such as 'we are going to the hospital')" were to be conducted through the parenting coordinator. Defendant was charged with a civil penalty of $500.

Defendant moved pro se to have the FRO "removed." His motion was heard by a different judge on September 29, 2011. The court treated the motion as a request to vacate the judgment pursuant to Rule 4:50-1 and as a request to dissolve or modify the FRO under N.J.S.A. 2C:25-29d, but found no grounds for relief. This appeal followed.

II.

On appeal, we are bound by the factual findings of the court that are supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). However, we view the court's conclusions of law anew. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). As we stated initially, defendant claims that, under these standards, there was insufficient evidence presented at trial to support the entry of an FRO against him and thus that it was legally unwarranted. We agree.

The Prevention of Domestic Violence Act of 1991 (PDVA) N.J.S.A. 2C:25-17 to -35, provides that a victim of domestic violence may file a complaint in the Family Part alleging the commission of an act of domestic violence and, when necessary to protect the life, health or well-being of the victim, obtain a temporary restraining order. N.J.S.A. 2C:25-28. "Domestic violence" is defined in N.J.S.A. 2C:25-19 by reference to enumerated criminal statutes including harassment, N.J.S.A. 2C:33-4. Harassment, in turn, can be found if, "with a purpose to harass another," a person 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[.] [Ibid.]

Within ten days of the filing of a complaint, the PDVA requires that a hearing be held at which the court "shall consider but not be limited to the following factors:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the protection of the victim's safety; and

(6) The existence of a verifiable order of protection from another jurisdiction." [N.J.S.A. 2C:25-29a.]

"[T]he standard for proving the allegations in the complaint shall be by a preponderance of the evidence." Ibid.

In Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), we articulated a two-step procedure for determining whether domestic violence sufficient to warrant issuance of an FRO had been demonstrated.

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:25-19a has occurred. . . . In performing that function, "the Act does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.'" Cesare[ v. Cesare], 154 N.J. [394,] 402 [(1998)] (quoting Peranio[ v. Peranio], 280 N.J. Super. [47,] 54 [(App. Div. 1995))]. Stated differently, when determining whether a restraining order should be issued based on an act of assault or, for that matter, any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property. See N.J.S.A. 2C:25-29a(1) and (2).

The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim. As we noted in Kamen [v. Egan], the Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence restraining order. 322 N.J. Super. [222,] 227 [(App. Div. 1999)]. [Silver, supra, 387 N.J. Super. at 125-27 (footnote and citations omitted).]

The "guiding standard" for entering an FRO is "whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127; see also N.J.S.A. 2C:25-29b.

We first examine whether plaintiff demonstrated by a preponderance of the evidence that defendant committed a predicate act of harassment by sending repeated e-mails to her regarding the children, including their sports activities, health, school programs, and vacations. While defendant's e-mails were somewhat numerous, they were not anonymous, and there is no evidence that they used offensively coarse language or that they were sent at extremely inconvenient hours.*fn5 Thus, we are left with the problem of evaluating whether the evidence supported the claim that the e-mails were sent "with purpose to harass" plaintiff by likely causing her "annoyance or alarm." N.J.S.A. 2C:33-4a.

"A finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." State v. Hoffman, 149 N.J. 564, 577 (1997). Nonetheless, we note that purposeful conduct "is the highest form of mens rea contained in our penal code, and the most difficult to establish." State v. Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). Its establishment requires proof, in a case such as this, that it was the actor's "conscious object to cause [the intended] result," N.J.S.A. 2C:2-2b(1) - i.e. to cause annoyance or alarm. A plaintiff's assertion that the conduct is harassing is not sufficient. J.D. v. M.D.F., 207 N.J. 458, 484 (2011) (citing Chernesky v. Fedorczyk, 346 N.J. Super. 34, 40 (App. Div. 2001)). Further, a "victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose." Id. at 487 (citing State v. Washington, 319 N.J. Super. 681, 691-92 (Law Div. 1998)).

When deciding the issues of intent and effect, we are mindful of the fact that harassment is the predicate offense that presents the greatest challenges to our courts as they strive to apply the underlying criminal statute that defines the offense to the realm of domestic discord.

Drawing 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 presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application. [J.D., supra, 207 N.J. at 475.]

"[T]he decision about whether a particular series of events rises to the level of harassment or not is fact-sensitive." Id. at 484.

In this case, the evidence supports the conclusion that, with the exception of complaints by defendant regarding the receipt of harassing e-mails from plaintiff's boyfriend,*fn6 the e-mails at issue concerned the parties' children. Further, evidence establishes through plaintiff's own admission that, for a substantial period of time, she declined to answer defendant's e-mails. Additionally, evidence establishes without contradiction that, during the period from April 15, 2012 to July 6, 2012, when the parent coordinator recommended that plaintiff permit the children to participate in the Canadian trip, plaintiff had adamantly refused to do so, and that the delay in giving permission drastically shortened the window of time during which defendant could attempt to obtain passports for them. In these circumstances, we find the evidence, when viewed in a light most favorable to plaintiff, to be insufficient to support an inference, in connection with the spate of e-mails that precipitated plaintiff's request for an FRO, that defendant sent them with a purpose to harass plaintiff by causing her annoyance and alarm, rather than to impel action by her. In this regard, we find plaintiff's stated reaction to have been a subjective one, no doubt arising as a residual effect of the prior marital discord that led to divorce in the first place. We do not find evidence of an intent to harass.

Nor do we find sufficient evidence of the requisite intent when we consider the history of communications between the parties by e-mail, particularly in light of plaintiff's admitted long-term failure to respond to defendant's queries. E-mails have, in recent years, become a standard method of communication between individuals. That method has the advantage, in circumstances such as this, of avoiding direct interpersonal communication, while permitting, among cooperative participants, an efficient exchange of necessary information regarding subjects of concern to the parties - their children. Their frequency in this case does not appear to us to have been remarkable, and certainly not to have constituted the "bombardment" that the trial court determined to have occurred. The evidence suggests, at most, that defendant sent three e-mails in two days, and eleven e-mails in two weeks. That frequency is simply insufficient, without more, to constitute a bombardment from which an intent to harass can be inferred. The record does not disclose the frequency of the other e-mails, which, after all, were received over a three-year period.

In this regard, we find the conduct in the present matter to be similar to that at issue in L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523 (App. Div. 2011), a case in which we found evidence of texting by a father to his former wife regarding his estranged children to be insufficient to establish harassment. There, the trial court had found that the defendant had harassed the plaintiff because of a series of text messages on three occasions between March and June 2010: eight messages sent in less than an hour by the defendant's new wife; eighteen messages sent in less than five hours by the defendant; and five messages sent in less than an hour by the defendant. Id. at 527-29. On one occasion, defendant "manifested his frustration by resending the same message, over and over again, in a misguided attempt to provoke some kind of response from plaintiff." Id. at 536. Following the final spate of e-mails, the plaintiff called the defendant, who became angry and called her a "fucking scorned woman." Id. at 529.

Viewing this evidence, we found that the trial court had erred in relying on text messages from defendant's current wife as evidence of harassing conduct by defendant. Id. at 535. However, we also held that the trial court did not find and, significantly, the remaining evidence did not support a finding "that defendant sent these text messages for the purpose of harassing plaintiff." Ibid. (citing Hoffman, supra, 149 N.J. at 581). We stated in connection with messages regarding the parties' daughter:

Plaintiff did not dispute before the trial court that defendant's only purpose in sending his text messages was to inquire about his daughter because the child had grown estranged from him. The texts became annoying to plaintiff only after she decided to ignore them. When his electronic messages were not answered, it was not unreasonable for defendant to assume he was being snubbed or ignored. . . . Had the communications involved subjects other than legitimate concerns about the children's lives, defendant's persistence might have eventually been viewed as infused with a purpose to harass plaintiff. [But d]ivorced parents must necessarily communicate from time to time about their children.

[Id. at 535-36.]

Additionally, we found that, even if the predicate offense of harassment had been demonstrated, there was no evidence that an FRO was necessary to prevent future abuse. Id. at 537. In this regard, we noted Justice Hoens's admonishment in J.D.:

Although evidence offered by a putative victim may therefore suffice to meet the definition of harassment, courts must be careful not to overlook the statutory requirement that there be a finding that "relief is necessary to prevent further abuse." N.J.S.A. 2C:35-29(b). Merely concluding that plaintiff has described acts that qualify as harassment and omitting this added inquiry opens the door to potential abuse of the important purposes that the Act is designed to serve and threatens to trivialize the plight of true victims, in the process.

[L.M.F., supra, 421 N.J. Super. at 536 (quoting J.D., supra, 207 N.J. at 476 (internal quotation marks and citation omitted)).]

We find the same conclusion to be appropriate in the present matter, noting in that regard that the trial court provided no analysis of the need for an FRO. While plaintiff testified at trial that she was in fear of defendant, that "fear" was traced solely to evidence that defendant stood or sat in relatively close proximity to her, without any threatening gestures or words - conduct that the court characterized as "stalking" and did not consider as a basis for its decision.

Plaintiff's "fear" was unrelated to the receipt of e-mails, which as we have found, she subjectively regarded as merely annoying.

Accordingly, we reverse the restraining order issued by the trial court and require that defendant's name be removed from the Central Registry. See N.J.S.A. 2C:25-34 (establishing Registry). By reaching this result, we do not wish our opinion to be construed as condoning the conduct of either party to this litigation. As the parenting coordinator suggested, each would benefit from fewer, more substantive, contacts that were not used as a vehicle to perpetuate the disharmony that led to the marital breakup.

Reversed.


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