July 2, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-1464-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 6, 2012
Before Judges Lihotz and Waugh.
Defendant J.S., to whom we refer by the pseudonym James, appeals from the final domestic violence restraining order entered against him on June 15, 2011. We affirm.
We discern the following facts and procedural history from the record on appeal.
James and plaintiff D.F., to whom we refer by the pseudonym Dawn, had a dating relationship and one child together. Dawn has legal custody of the child and is the parent of primary residence. James is entitled to parenting time. The record reflects that the parties had a history of problems with respect to parenting time and the exchanges of custody related to it. Several orders concerning the parameters of parenting time and exchanges of custody were entered in the parties' nondissolution action. In addition, there was an earlier domestic violence matter, which Dawn voluntarily dismissed.
Late on the night of April 29, 2011, James came to Dawn's residence to pick up their child for his parenting time. He became involved in an argument with Dawn's mother. According to Dawn, when she came out of the house, she witnessed James push her mother. Dawn then approached James and told him to leave. She threatened to call the police. Because he did not leave, but continued to argue with her mother, Dawn called the police.
During their confrontation, according to Dawn, James pushed her in the stomach. She was pregnant at the time and required medical attention due to the resulting bleeding. According to James, Dawn hit and scratched him. The judge viewed a video showing the incident. In addition, there were pictures showing scratches on James's arm.
Both parties sought and received temporary restraining orders pursuant to the Prevention of Domestic Violence Act of 1991 (DV Act), N.J.S.A. 2C:25-17 to -35. Both parties, who were represented by counsel, appeared in the Family Part on June 15, 2011, for the trial of their respective complaints. After hearing the testimony of each party, the trial judge delivered an oral decision, concluding that each party had committed an act of harassment and that there was a need to enter a final restraining order (FRO) against each. This appeal followed.
On appeal, James argues that the facts adduced at trial did not support the trial judge's finding that he engaged in an act of domestic violence and that, in any event, there was no showing that an FRO was necessary to protect Dawn from further domestic violence.
We accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citations omitted). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
The DV Act provides protection for "victims of domestic violence," including "any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship." N.J.S.A. 2C:25-19(d). Because the parties had such a relationship, the Family Part had jurisdiction under the DV Act.
In adjudicating a domestic violence case, the trial judge has a two-fold task. Silver v. Silver, 387 N.J. Super. 112, 125 (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." Ibid. (citing N.J.S.A. 2C:25-29(a)). "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." Id. at 126 (footnote omitted).
In her complaint, Dawn alleged that James assaulted her, as defined in N.J.S.A. 2C:12-1, and engaged in harassment, as defined in N.J.S.A. 2C:33-4. That latter statute, which was the one relied upon by the trial judge, defines harassment, in relevant part, as follows: "[A] person commits a petty disorderly persons offense if, with purpose to harass another, he: . . . b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so." Harassment is one of the predicate offenses listed in the DV Act. N.J.S.A. 2C:25-19(a)(13).
Under the facts of this case, Dawn was required to show that James (1) acted with a purpose to harass; and (2) committed an act prohibited by subsection (b) of N.J.S.A. 2C:33-4. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:33-4 (2012). Proof of a purpose to harass is an essential element of N.J.S.A. 2C:33-4. See L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). "'A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result.'" State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)). There must be proof that a defendant's conscious object was to "harass," that is, "'annoy,'" "'torment,'" "'wear out,'" or "'exhaust.'" State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (quoting Webster's II New College Dictionary 504 (1995)), certif. denied, 188 N.J. 577 (2006). Merely knowing that someone would be annoyed, as opposed to having a conscious objective to annoy, is insufficient to prove a purpose to harass. See State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).
"A finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577 (citations omitted). Because direct proof of intent is often absent, "purpose may and often must be inferred from what is said and done and the surrounding circumstances," and "[p]rior conduct and statements may be relevant to and support an inference of purpose." Castagna, supra, 387 N.J. Super. at 606 (citations omitted); see also State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995) ("While [the appellate court] might or might not have made the same inferences, [its] role is one of determining whether the trial judge's inferences were rationally based on evidence in the record.").
In considering whether a party's conduct rises to the level of harassment, the trial courts must consider any prior history of domestic violence, Pazienza v. Camarata, 381 N.J. Super. 173, 183 (App. Div. 2005) (citing N.J.S.A. 2C:25-29(a)(1)), and must "'weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard.'" Ibid. (quoting Cesare, supra, 154 N.J. at 405). Further, consideration of prior communications and conduct is not only permitted but required in the domestic violence context. "In determining whether a defendant's conduct is likely to cause the required annoyance or alarm to the victim, that defendant's past conduct toward the victim and the relationship's history must be taken into account. The incidents under scrutiny must be examined in light of the totality of the circumstances." [Id. at 183-84 (quoting Hoffman, supra, 149 N.J. at 585).]
Based upon our review of the record in light of the applicable law, we conclude that the judge's finding that James engaged in an act of harassment is fully supported by the record. There was testimony that James pushed Dawn, who was pregnant at the time, in the stomach. Although the judge may have mischaracterized the action as a "punch," he was nevertheless entitled to find from the evidence, including the parties' prior history of disputes related to parenting time, that the conduct was an "offensive touching" intended to harass under N.J.S.A. 2C:33-4(b).
We also conclude that there was sufficient credible evidence to support the judge's finding that an FRO was necessary to protect Dawn from further acts of domestic violence. Silver, supra, 387 N.J. Super. at 126-27. The judge explained his reasons as follows:
I'm satisfied based upon my review of the evidence that there is a progression of the deterioration of the relationship between these parties and I'm satisfied that if I do not issue an order under the . . . Act in both cases that there is going to be future domestic violence . . . .
Given the deference owed to the discretionary decisions of Family Part judges who have heard the evidence and observed the witnesses, we will not second-guess the judge's determination that an FRO was necessary.
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