On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-131-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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.
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.
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 ...