July 17, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-339-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 2, 2012 -
Before Judges Axelrad and Ostrer.
Defendant M.T. appeals from a final restraining order (FRO) entered against him and in favor of plaintiff T.Y.B.-T. based on a finding of the predicate act of criminal trespass under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. He challenges the record as insufficient to support the offense and to warrant the issuance of restraints under the Act. We agree and reverse.
The parties had been married for three years, had recently separated, and defendant was in the process of filing a divorce complaint. On August 9, 20ll, plaintiff sought and was granted a temporary restraining order (TRO) against defendant based on acts of criminal mischief,*fn1 harassment, criminal trespass, and stalking resulting from four alleged incidents over the course of six days: (l) his leaving a letter from his divorce lawyer at the marital home that complained about locks being changed; (2) her observation the following day that portions of a woodpile on her property had been knocked over by defendant; (3) her observation two days later of a steak knife in the street in front of her driveway left there as a threat by defendant; and (4) two days later, defendant's appearance on the back deck of the marital home.
This had been plaintiff's second application for restraints. Plaintiff had secured a TRO less than two months before, but on June 23, 2011, the restraints were dismissed at a final hearing by the judge who presided at this final hearing.*fn2
Both parties were represented by counsel at the final hearing on September 13, 2011. They testified, as did plaintiff's fifteen-year-old daughter from a prior relationship who was residing with plaintiff in the marital home. The testimony was fairly consistent with regard to defendant's presence at the house save for his motive in going there. Defendant returned to the marital home at around 8:30 a.m. on August 9, 2011. He claimed he went there hoping to find plaintiff so he could retrieve a suit for a job interview that he "may have left" at the house. The house had no doorbell, so he walked onto the rear deck, looked in the window, and noting everything was dark, he left. Plaintiff had already left for work.
Plaintiff's daughter testified that she saw defendant walking on the back deck when her dog began barking, phoned her mother and called the police at her direction. She estimated that defendant was on the deck for about ten minutes. She had no contact with defendant. Plaintiff testified about the conversation with her daughter, after which she returned home but defendant had already left. After the police arrived, she dialed *69 and ascertained that defendant had called the home that morning at about the same time that she had received the call from her daughter.
Plaintiff also testified about the woodpile and knife incidents, in which defendant denied being involved. Plaintiff further testified to having received a large number of emails from defendant, ten of which were identified and acknowledged by defendant as being sent the day before the incident. Plaintiff admitted the emails were not offensive and she never asked defendant to stop sending them. Defendant conceded he never asked for his suit in any of the emails.
At the conclusion of the final hearing, the trial judge found not "a shred of evidence" that defendant kicked the woodpile over nor "any strength at all as evidence" to plaintiff's claim that defendant left the knife in the street. The judge noted his belief that both counsel would agree "there's a lot of paranoia here," a fact that defendant was aware, having testified about it the last time the parties were in court. Nevertheless, the judge entered an FRO against defendant based on the predicate act of criminal trespass, specifically, N.J.S.A. 2C:18-3(a), unlicensed entry, and (c), peering. The court concluded:
Whatever the, whatever is going on, to be perfectly honest, I can't believe he came back and walked on that back deck of the house. . . . All of these things that are going on. And now the daughter catches him on the back deck of the house where he's got no business being.
He doesn't have every right to be on that back deck. He doesn't live there. He has no right to be on that back deck, especially under [the] surrounding circumstances of this case.
. . . he didn't knock on the doors or anything, he just peered into the dwelling and looked and could see that there was no one there so he left.
I don't think he left quite as quickly as he says he left. I think he left about as quickly as the daughter  said when she said she called the police back and said he's not here anymore. And they said we're sending a car anyhow.
. . . [Plaintiff's attorney] was pretty sharp in addressing the fact that [defendant] actually did send emails to the plaintiff on . . . August 9th. He didn't send one email to her saying oh, I'm coming over, I'm going to stop and pick up a suit. He didn't give her any warning that he was going there and he went there after she left for work under her usual routine.
And as it turns out, on this issue, this is a matter of credibility. I would have, I don't know what it would have been, but I would have loved to have heard some kind of explanation for him being there. He had none and for the life of me under these circumstances, how many times do you have to come to Court to figure out you can't do stuff like that?
I mean I find that the plaintiff has proven by a preponderance of the evidence that the defendant committed the act of criminal trespass, which is a predicate offense. I find that he not only peered in the windows as set forth under subsection (c), but he was an unlicensed entry of the structure and I find that the deck was a structure.
This appeal ensued.
On appeal, defendant contends the evidence was insufficient to support a finding of domestic violence on the basis of an act of criminal trespass and, alternatively, the single act of trespass was not an egregious act of domestic violence warranting a restraining order. His first challenge -- that a "structure" as required by N.J.S.A. 2C:l8-3(a), is not defined under N.J.S.A. 2C:18-1 to include a back porch or deck -- is conceded by plaintiff and need not be addressed.
In a non-jury case, we generally defer to findings of fact by the trial court, which "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We will not disturb these findings on appeal unless the trial judge's findings are "so wholly insupportable as to result in a denial of justice." Rova Farms, supra, 65 N.J. at 483-84 (internal quotation marks and citation omitted).
In Silver v. Silver, we held that a judge considering a complaint for a domestic violence restraining order has a "twofold" task: "[f]irst, 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"; and second, "whether a domestic violence restraining order is necessary to protect [a] plaintiff from immediate danger or further acts of domestic violence." 387 N.J. Super. 112, 125-26, 128 (App. Div. 2006). Whether a restraining order should be issued depends on the seriousness of the predicate offense, see Cesare, supra, 154 N.J. at 402, on "the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse," and on "whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. l995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. l995); see also N.J.S.A. 2C:25-29(a).
Here, the judge found defendant guilty of criminal trespass as defined by N.J.S.A. 2C:18-3(c), conduct constituting domestic violence pursuant to the Act, N.J.S.A. 2C:25-19a(12). In relevant part, N.J.S.A. 2C:18-3(c) states:
A person commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, he peers into a window or other opening of a dwelling or other structure adapted for overnight accommodation for the purpose of invading the privacy of another person and under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed.
This subsection has been referred to as the "peeping Tom" provision of the trespassing statute. State v. Burke, 362 N.J. Super. 55, 57 (App. Div.), certif. denied, 178 N.J. 374 (2003). Under this paragraph, the State must prove beyond a reasonable doubt that defendant: (1) "peered into" the window of plaintiff's home; (2) had the purpose to invade the privacy of plaintiff or her daughter; (3) the circumstances were such that a reasonable person in the home would not expect to be observed; and (4) defendant knew he was not licensed or privileged to peer into the window of the home. See id. at 59.
The judge did not expressly find the essential elements of the offense, including that defendant knew he was unlicensed to peer into the window and he did it for the purpose of invading the privacy of another. Even if we accept the judge's implicit credibility finding that defendant did not go to the house to retrieve his suit, we cannot find from the record that defendant's conduct of walking on the deck of the marital home (from which he was no longer restrained by the first TRO) for about ten minutes at 8:30 a.m. and looking into the window to see if anyone was home fell within the provisions of N.J.S.A. 2C:18-3(c).
Although plaintiff alleged prior acts of domestic violence by defendant in the complaint, she did not testify about them other than to reference the emails sent by defendant following dismissal of the prior TRO discussing potential reconciliation. The judge classified the emails in evidence as generally "normal" with paragraphs intended to "woo" plaintiff, such as "it's lonely without you, I wonder how your garden is growing, how we need to put that screen door up in the back, we never got to stack all that wood for the stove." The judge never reached the alleged predicate offenses of harassment and stalking, presumably finding the evidence insufficient to support those claims.
Nor did the judge make any finding of a history of abuse or an immediate threat to plaintiff's safety, thus failing to make the requisite determination under the second prong of Silver that plaintiff was in need of protective restraints. Supra, 387 N.J. Super. at 126-27. Although it was not wise for defendant to have returned to the marital home unannounced under the guise of retrieving a suit in view of his attorney's letter and the imminent divorce litigation, such conduct is not of sufficient magnitude to constitute an act of domestic violence but, rather, can be labeled more in the nature of "domestic contretemps" that does not warrant the issuance of restraints. See Corrente, supra, 181 N.J. Super. at 250.