August 13, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-338-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 22, 2012
Before Judges Payne and Simonelli.
Defendant, C.T., appeals from the entry of a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, resulting from the determination of a Family Part judge that she had committed acts of harassment against her former husband, plaintiff, A.G., as set forth in N.J.S.A. 2C:33-4(c), by engaging in alarming conduct or repeatedly committing acts with the purpose to alarm or seriously annoy him. We reverse.
The parties were married in 1992, separated in 1996, and divorced after a fourteen-day trial in New York in 2006. They have two children, ages 16 and 18. Neither has been emancipated. C.T. has residential custody of the children. A.G. is the part-owner of several successful restaurants, one of which is located in Hoboken.
On September 30, 2010, A.G. sought and obtained a temporary restraining order (TRO) based upon a complaint alleging:
PLA'S BUSINESS PARTNER CALLED PLA FROM HOBOKEN SAYING DEF CALLED HIM AND TOLD HIM SHE WOULD PICKETT OUTSIDE RESTAURANT, THAT SHE WAS GOING TO TAKE PLA DOWN, SHE WOULD TAKE ADDS OUT IN NEWSPAPER ABOUT PLA, THAT SHE WAS CALLING IRS. DEF CALLED PLA AND SAID "YOU'RE DONE." HISTORY CONT'D: SHE WAS REPORTING PLA TO THE IRS. JAN 2010: DEF SENT HARASSING EMAIL. DEF HAS SENT HARASSING EMAILS PREVIOUS TO THIS ONE, INDICATING SHE WAS GOING TO REPORT PLA TO LIQUOR AUTHORITY, TELLING PLA HE AND HIS FRIENDS AND FAMILY ARE GOING TO JAIL. DEF HAS BEEN VERBALLY ABUSIVE IN THE PAST. SHE MANIPULATED PLA'S VISITATION. DEF HAS CALLED PLA'S BUSINESS PARTNERS AND TRIED TO CAUSE PROBLEMS. DEF CALLS PLA'S FATHER'S WORK. DEF CALLS PLA'S EMPLOYMENT AND HARASSES PLA AND EMPLOYEES.
However, at a hearing held in the matter on October 19, 2010, A.G. produced little evidence in support of his allegations. In that regard, he offered competent proof only that on September 30, 2010, he received a call from C.T. on his cell phone telling him he was "done." Additionally, she had sent him an e-mail nine months earlier, on January 30, 2010, while seeking an increase in child support, stating:
[B]y the way I would seriously consider doing the right thing by your children. I realize the liquor board is only allowed to pry so deep but I can ensure the IRS abilities are limitless and move much faster. You should seriously consider doing the right thing by your children because there are a lot of peoples lives at stake.
Without specifying the underlying conduct leading to his complaint, A.G. also testified "it's escalating to the point where, until I got this restraining order, that there's escalating to serious craziness. My livelihood and my work - she is trying to take away from me." In that connection, A.G. produced an e-mail that he had sent to C.T. on July 22, 2010 that stated:
[I]f you make one more harassing phone call, leave any more threatening phone messages, physically or verbally harass any of my work locations or any of my family they're instructed to call 911 to make a report.
Evidence was not offered of what specific conduct led to the e-mail.
Although conduct by C.T. occurring in May figured in the court's decision, the only competent evidence presented in that regard by A.G. was that, in connection with her application for increased child support, C.T. had submitted an affidavit to the court stating: "His present residence is lavishly furnished, landscaped and even has a heated driveway so no snow will accumulate in the winter." A.G. claimed that the affidavit, which exhibited knowledge by C.T. of his residence, supported a claim of stalking. However, the court rejected A.G.'s claim, noting that it had not been set forth in his complaint. A.G. also stated at one point that he had been told that C.T. and a friend had gone to his place of business that month "asking questions about [him]." However, A.G. did not offer a witness with direct knowledge of what had occurred, and his own testimony constituted inadmissible hearsay.
On cross-examination, C.T. established that A.G. interpreted the January 2010 e-mail, in part, as suggesting that C.T. was going to report him to the IRS for concealing income during the divorce proceedings. The court would not permit her to question A.G. as to whether in fact he had done so. C.T. also established that A.G. had no documentary evidence of threats by C.T. other than the January 2010 e-mail. Additionally, she established that A.G. had no proof that C.T. had visited his place of business the preceding May. The court would not permit C.T. to cross-examine A.G. regarding the basis for including various family members and business associates as persons who required protection by a TRO and for whom A.G. also sought protection through entry of a FRO.
At the close of A.G.'s case, the court asked C.T. if she wished to testify. Her response was: "At this point I don't really think the burden is on me. I don't think he's proved a case that I've done one thing to anybody. . . . I don't think he's met his burden that I've done anything." C.T. therefore declined to testify.
Without considering what was framed - as clearly as a pro se defendant could have been expected to frame it - as a motion to dismiss A.G.'s complaint, and if the court denied the motion, giving C.T. an opportunity to testify, the court proceeded directly to rule in A.G.'s favor. In doing so, the court relied, as establishing a predicate act, on A.G.'s testimony, previously found to be inadmissible hearsay, that A.G. had learned from his business partners that C.T. had called his place of business five or six times on September 30, 2010, making allegations against A.G. and then threatening them, prior to leaving him the message stating that he was "done."
Turning to the issue of the existence of a prior history of domestic violence, the court noted the January 2010 e-mail from C.T. to A.G., and also A.G.'s hearsay evidence of conduct occurring in May 2010, upon which the court embroidered by recounting that C.T. "had been to [A.G.'s] place of business several times." The court observed: "[A]ll of this that is stated by the plaintiff is not controverted by the defendant. Other than she says that she did not ever threaten the defendant at least that he can prove." Although C.T. attempted to demonstrate otherwise, the court would not permit her to testify, saying that she had forfeited her opportunity to do so.
Again emphasizing the lack of any contrary evidence, the court summarized the "proofs" before him, stating:
Now again, the testimony which is not controverted except by the defendant's ascertains [sic] that she never threatened the plaintiff or at least he cannot prove it. There's a collection of events here, the January communication, the May communications, and the September communications, and then the inference that the defendant was surveilling the plaintiff's home based upon her sworn testimony in New York.
In determining whether to accept this evidence the court addressed the credibility of the parties, noting once more the fact that C.T. did not testify and finding the testimony of A.G. to have been credible. Although the court found all communications by C.T. - in January, May and September, 2010 - to have been motivated by her attempt to obtain additional child support, the court found C.T. to have committed a predicate act of harassment pursuant to N.J.S.A. 2C:33-4c, determining specifically that "defendant has appeared at [A.G.'s] place of business and called his place of business five to six times on the date in question[,] [a]nd then called him telling him you're done." C.T.'s purpose, the court found, was "to wear [A.G.] down to leverage him on child support." The court continued:
While the defendant may have good reasons to seek a modification of child support you don't go about it in the manner which she has done whether it is justified or not.
The court did not rely on evidence of C.T.'s knowledge of A.G.'s residence in reaching its decision.
Following a somewhat unrestrained period, during which C.T. again unsuccessfully sought an opportunity to testify and A.G. uttered further accusations against her, the court found entry of a FRO was necessary because C.T.'s "activity" could "severely jeopardize [A.G.'s] business operations." Without any supporting evidence, the protections were extended to include A.G.'s parents, his two brothers, his two sisters-in-law, his two young nephews, and his two business partners.
We are disturbed both that C.T.'s procedural rights were not scrupulously honored in this matter, and that an order with the serious consequences of a FRO was entered largely on the basis of a somewhat novelistic interpretation of A.G.'s inadmissible hearsay, and with minimal admissible evidentiary support.
Rule 4:40-1 provides in relevant part:
A motion for judgment, stating specifically the grounds therefor, may be made by a party either at the close of all the evidence or at the close of the evidence offered by an opponent. If the motion is made prior to the close of all the evidence and is denied, the moving party may then offer evidence without having reserved the right to do so.
In this case, at the conclusion of A.G.'s proofs, C.T. argued that he had not met his burden of proof, and for that reason she declined to testify. Certainly, as C.T.'s subsequent behavior demonstrated, if she had been informed at that time that the court found sufficient evidence to exist to support a finding in A.G.'s favor, she would have testified on her own behalf. However, the court never conducted the necessary evaluation under the proper legal standard, but instead took the absence of testimony from C.T. as proof that the acts occurred as A.G. had reported, declaring his evidence to be uncontroverted. The court's error in this regard was "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). Reversal is thus required.
We additionally find errors in the court's factfinding with respect to A.G.'s substantive claim of harassment, in its legal conclusion that harassment had been proven and in the court's determination that a FRO was required.
"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). We intervene only, as here, when convinced that the trial court'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.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
To obtain a FRO in his domestic violence action, A.G. was required to prove that C.T. 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. Silver v. Silver, 387 N.J. Super. 112, 124-25 (App. Div. 2006). The court in the present matter found conduct that violated N.J.S.A. 2C:33-4c, which provides that harassment occurs when "a person . . . with purpose to harass another . . . [e]ngages in [a] course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." "[T]he standard for proving the allegations in the complaint shall be by a preponderance of the evidence." Ibid.
In Silver, we articulated a two-step procedure for determining whether domestic violence sufficient to warrant issuance of a 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, supra, 154 N.J. at 402 (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 additional citations omitted).]
The "guiding standard" for entering a 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 A.G. demonstrated by a preponderance of the evidence that C.T. acted "with purpose to harass" A.G. by likely causing him "annoyance or alarm" when she sent an e-mail to him in January 2010 suggesting that he do right by his children or she would report his hidden income to the IRS, engaged in undescribed conduct leading to his e-mail in July 2010, and called him on September 30, 2010 and told him he was "done." We disregard allegations that C.T. may have called A.G.'s business in September 2010 and that she may have gone to one of his restaurants in May 2010, since the occurrence of neither event was proven by admissible evidence.
"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 (internal quotation 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.
In this case, the court itself determined that C.T.'s purpose in sending the January e-mail and in making the September telephone call was to obtain additional child support. While C.T. may have engaged in improper methods in doing so, we cannot conclude that the two acts had, at their core, an improper purpose to alarm or seriously annoy A.G. C.T.'s conscious object was simply to obtain more money from one whom she regarded as wrongfully withholding from her the necessary funds. In this regard, we emphasize that evidence of A.G.'s subjective reaction to what C.T. communicated is not sufficient to meet the statutory standard. Peranio, supra, 280 N.J. Super. at 55.
Further, we do not regard evidence of such isolated acts as were proven here to constitute a "course of alarming conduct" or "repeatedly committed acts" as the statute requires. As Judge Long stated in Peranio, a case that is similar to this one, in that it involved an isolated threat to "bury" the complaining party:
The law mandates that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of violence between the parties including previous threats, harassment and physical abuse, and in light of whether immediate danger to person or property is present.
N.J.S.A. 2C:25-29a(1) and (2). This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened. [Id. at 54.]
See also Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995) (finding that the defendant's conduct at issue, consisting of disconnecting the plaintiff's telephone and calling her at work twice a day when defendant was aware she was not permitted to talk, was "plainly never contemplated by the Legislature when it addressed the serious social problem of domestic violence.")
Additionally, even if we found that the predicate offense of harassment had been demonstrated, there was no competent evidence that a FRO was necessary to prevent future abuse. As Justice Hoens stated in J.D., supra:
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. [J.D. supra, 207 N.J. at 476 (quoting Corrente, supra, 281 N.J. Super. at 250).]
We find the same conclusion to be appropriate in the present matter, noting that there was no competent evidence that conduct by C.T. had jeopardized A.G.'s business operations, and no competent evidence supporting an expansion on the FRO to encompass A.G.'s relatives and business partners.
Finding the proceedings to have been procedurally, evidentially, and legally flawed, we reverse.
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