June 14, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0378-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 22, 2012
Before Judges Payne and Simonelli.
Defendant M.E.W. appeals from the October 20, 2011 final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A. 2C:33-4c. We reverse.*fn1
We derive the following facts from the evidence presented during the hearing for the FRO. Defendant and plaintiff C.M.S. are not married. They have four children together: a daughter born in 2006, a son born in 2007, and twin daughters born in 2009. Plaintiff also has two sons, born in 1995 and 1996 respectively, who live with her and defendant. The parties had contemplated marriage; however, defendant broke off wedding plans, allegedly because he believed that plaintiff was cheating on him.
The incident leading plaintiff to seek a temporary restraining order against defendant occurred on October 14, 2011. Defendant planned to clean and fumigate the parties' home due to a bedbug infestation. When he tried to use their steam cleaner, he found that it did not work. He accused plaintiff of breaking the machine and began hollering at and belittling her in front of three of the children. At the time, plaintiff was talking on the phone to her sister, and continued to do so after she resisted defendant asked her to stop talking and call the exterminator. Defendant disconnected the phone when plaintiff did not immediately comply. Plaintiff then used her cell phone to call her sister back. Both plaintiff and her sister testified at the FRO hearing that defendant mocked and belittled plaintiff as the call continued.
With respect to alleged prior domestic violence incidents, the parties testified that on September 12, 2011, plaintiff awoke defendant in the middle of the night when she turned on a hallway light to check on the twins, who were in his bedroom. Plaintiff sustained two sprained fingers when defendant attempted to shut the bedroom door. Plaintiff testified that defendant also constantly hollered at and belittled her, he threatened suicide if their relationship ended, his behavior had changed recently, and she was afraid of him.
The trial judge entered an FRO based on harassment, N.J.S.A. 2C:33-4c, finding as follows:
[T]his course of conduct that I have just described fits the definition of harassment. There's a constant overtone or undertone of accusations in the household of --accusations of cheating, making -- of demeaning, belittling, directing that she leave in front of the children, and, again, while I'm not focusing on the children's reaction, I'm focusing on the result to the plaintiff.
She says she's in fear of talking to people. You know, her personality has changed as a result of what she had endured from the defendant. So I do find that he has engaged in harassment.
I find that the focus of the defendant was to make the plaintiff feel less than, you know, a normal, upstanding member of society by belittling her, by mocking her while she's on the telephone, by accusing her of cheating all the time. It's clearly not a good situation for these people to remain in together.
Plaintiff indicates that she's scared of him, with his banging [his] head against the wall, with him saying he's going to blow-up, with him pulling the phone out with, you know, him stopping her from using the phone. She doesn't know what would happen if she really did need to use the phone, and the course of his behavior over the last several weeks, I find, does put her in fear of the defendant.
So I do find the predicate act is this course of conduct, and I do find that a restraining order is necessary to protect plaintiff from future acts of domestic violence and to protect her life, safety or health. So I will enter that order.
This appeal followed. On appeal, defendant contends that the judge erred in granting the FRO because the record does not support a finding of harassment pursuant to N.J.S.A. 2C:33-4c, there was no finding of a purpose to harass, and the entry of an FRO was not necessary to protect plaintiff from future acts of domestic violence.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). The question is not whether this court would come to a different conclusion were it the trial tribunal. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). We intervene only when convinced that the trial judge's factual findings and legal conclusions "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, "the trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)).
To obtain an FRO pursuant to the PDVA, a plaintiff must prove by a preponderance of the evidence that the defendant committed one of the predicate acts referred to in N.J.S.A. 2C:25-19a, which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. See J.D. v. M.D.F., 207 N.J. 458, 475 (2011); Silver v. Silver, 387 N.J. Super. 112, 124-25 (App. Div. 2006). Here, the judge viewed plaintiff's allegations as falling under N.J.S.A. 2C:33-4c, which provides that harassment occurs when "a person . . . with purpose to harass another . . . [e]ngages 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:33-4c.
A finding of harassment requires proof that the defendant acted "with purpose to harass." See Silver, supra, 387 N.J. Super. at 124. "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 engage in conduct of that nature or to cause [the intended] result," N.J.S.A. 2C:2-2b(1) - i.e. to alarm or seriously annoy another person. A plaintiff's assertion that the conduct is harassing is not sufficient. J.D., supra, 207 N.J. at 484 (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. [Id. at 475 (internal citation omitted).]
"[T]he decision about whether a particular series of events rises to the level of harassment or not is fact-sensitive." Id. at 484.
Here, the judge made no specific finding that defendant acted with this requisite purpose, nor may defendant's words and conduct be viewed as implicitly embodying a purpose to harass. Accordingly, in the absence of this "integral" finding, the judge's determination that defendant committed a predicate act cannot stand and the FRO must be reversed. Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995).
Even when viewed expansively, we cannot conclude from the judge's findings that defendant engaged in any conduct or acts that rose to the level of what the Legislature intended as "domestic violence." For example, in Corrente, during an argument with his wife, the defendant threatened "drastic measure[s]" and later disconnected the plaintiff's telephone service. Id. at 245-46. We held that this communication and conduct could not be "characterized as alarming or seriously annoying." Id. at 249. We drew the same conclusion in another case where the defendant repeatedly told his wife he had no sexual feelings for her, did not love her, and planned to divorce her. Murray v. Murray, 267 N.J. Super. 406, 408, 410 (App. Div. 1993). We likewise found no alarming or seriously annoying conduct where, during an argument, the defendant said to the plaintiff, "I'll bury you." Peranio v. Peranio, 280 N.J. Super. 47, 55-56 (App. Div. 1995).
Assessing the judge's opinion in this case in the light most favorable to plaintiff, the evidence suggested only that on October 14, 2011, the parties engaged in a dispute over a broken steam cleaner. Even had the judge found that defendant spoke and acted with the purpose to harass, these circumstances still failed to meet the standard necessary for the entry of an FRO.
As stated in Corrente, supra, 281 N.J. Super. at 250, the type of conduct that occurred here "was plainly never contemplated by the Legislature when it addressed the serious social problem of domestic violence." Instead, "the invocation of the domestic violence law" in this case, like in Corrente, "trivialize[s] the plight of true victims of domestic violence and misuse[s] the legislative vehicle which was developed to protect them." Ibid.; see also Peranio, supra, 280 N.J. Super. at 56-57. In short, "[t]he domestic violence law was intended to address matters of consequence, not ordinary domestic contretemps such as this." Corrente, supra, 281 N.J. Super. at 250. We find those statements equally applicable here.