September 28, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-2646-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 12, 2012
Before Judges Axelrad and Haas.
Defendant appeals from a final restraining order (FRO) entered against him in favor of his girlfriend based on a finding of the predicate offense of harassment under the Prevention of Domestic Violence Act of l99l (Act), N.J.S.A. 2C:25-17 to -35. He asserts a due process violation by the court in entering the FRO based on acts that were not alleged in the complaint, and challenges the record as insufficient to support the offense and to warrant issuance of restraints under the Act. We agree and reverse.
The parties were dating at the time. Plaintiff obtained a temporary restraining order (TRO) against defendant on May 2, 2011, based on the predicate offense of assault and allegation that on April 29, "defendant pushed her, pulled her hair, and squeezed her legs while engaged in a dispute."
At the final hearing on May 13, both parties were self-represented. They both testified, and defendant presented the testimony of a female acquaintance who was with him on May 2, 2011. Plaintiff testified that she first went to a therapy session on April 29, 2011, after which the parties went to a restaurant. While there, she told defendant that if he did not take his medication, she would have to "take a break" from him. He became upset and verbally aggressive but, nevertheless, the parties then went to a movie. During discussions, defendant became upset and expressed concern that she was "betraying him." When the movie ended, plaintiff tried to calm him down, touching his hand and giving him a kiss. She related that defendant told her to leave him alone and pushed her hands away with both of his hands.
The couple then got into defendant's car. Plaintiff alleged that while defendant was driving, he squeezed her left knee "very hard" for two minutes, causing a bruise. She also claimed he pulled her hair for about ten minutes, and pulled out some if it. Plaintiff did not provide any photographs of these alleged injuries. Defendant then dropped plaintiff off at her parked car.
Plaintiff related that right before she exited the car, defendant asked her to write a letter "stating that the Kearny police were very violent" to him when they picked him up as a result of a domestic violence complaint plaintiff had made against him in February. As stated on the complaint filed here, plaintiff had received a TRO as a result of that incident. She dismissed the TRO prior to trial. The court read into the record the allegations of the earlier complaint. Plaintiff elaborated that defendant had posted statements on Facebook asserting that "she had multiple personalities" and "has the ability to create problems." He also parked outside her home around dinnertime and followed her for three stop lights, during which time she called the police, and defendant was stopped.
Plaintiff further testified that defendant called her between fifteen to twenty times on Monday, May 2, requesting the letter. She could only produce evidence of four telephone calls to her cell phone on that date, none of which were from defendant's phone number. Rather, they were from a "private" number that plaintiff alleged was used by defendant. During these calls, defendant allegedly told plaintiff she didn't "have any education," was "a stupid person," and "a person who eats shit." Plaintiff then decided to seek a restraining order.
Defendant admitted the prior Facebook posting, but denied having made the comments testified to by plaintiff. He explained he had followed plaintiff on the prior occasion because she had his house keys and told him to pick them up. Defendant testified they went to the movies and to plaintiff's car on April 29 without incident, and he specifically denied the alleged assaults. Defendant did admit to asking plaintiff to write a letter describing what had occurred during her therapy session so he could address it with his therapist at the same clinic because he was concerned the therapist had revealed his medical information to plaintiff. Defendant did not recall phoning plaintiff over the weekend, but admitted it was possible.
Defendant denied having made numerous phone calls to plaintiff the following Monday. He provided a text plaintiff had sent him at 6:46 p.m., advising that she did not feel well but he could still come over. Defendant testified he later stopped there with a female acquaintance, but plaintiff was not home.
The acquaintance corroborated defendant's testimony that she and defendant were at Walmart when he received plaintiff's text and, at his request, she accompanied him to plaintiff's house where he expected to pick up some papers. She testified that plaintiff was not home, and when defendant phoned plaintiff, she asked him to wait for her to arrive. Defendant and the witness, however, had other appointments so they left without seeing plaintiff.
The judge acknowledged that plaintiff's complaint alleged an assault occurred on April 29. Nevertheless, the judge found the predicate offense occurred on May 2, which she concluded was harassment based on defendant's numerous phone calls to plaintiff. The judge perfunctorily found plaintiff's account was the more credible, stating, "I am crediting the testimony of [plaintiff] regarding [defendant's] actions towards her" and her "testimony regarding harassment," although she found defendant's presentation was "quite organized." She expressly considered "a prior history of the assault on [plaintiff] in the car," crediting plaintiff's testimony, although she did "understand that [defendant] denies that he ever touched her in that way." The judge therefore concluded that "[defendant] has harassed [plaintiff]." The judge additionally found defendant's undisputed prior Facebook posting was a "reason . . . for [plaintiff] to be alarmed" and his following of plaintiff in his car was not stalking but was "additional harassment," warranting the grant of a restraining order under the second prong of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). Accordingly, the judge issued an FRO against defendant. This appeal ensued.
On appeal, defendant claims his "fundamental due process rights" were violated by the court entering an FRO based on acts not alleged in the complaint. He further argues: (1) the trial court made no findings of fact concerning the alleged harassment on May 2; (2) plaintiff's testimony concerning the events of May 2 failed to establish harassment as defined by N.J.S.A. 2C:33-4; (3) plaintiff's testimony concerning a history of domestic violence also failed to establish harassment under the statute; and (4) the FRO should be vacated because events described by plaintiff fit into a category of "domestic contretemps," not domestic violence.
In a non-jury case, we generally defer to the trial judge's findings of fact, which "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (l998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974). 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, supra, 387 N.J. Super. at 125, 128, we held that a judge considering a complaint for a domestic violence restraining order has a "two-fold" 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." 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). See also Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. l995); N.J.S.A. 2C:25-29(a)(1)(2).
Our courts have consistently held that a defendant's due process rights are violated when a trial court finds he or she committed an act of domestic violence not based on an act alleged in the complaint or where the issues litigated at the hearing differ substantially from those outlined in the complaint. H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003); Franklin v. Sloskey, 385 N.J. Super. 534, 540 (App. Div. 2005). At the trial here, defendant expected to defend against an allegation of assault occurring on April 29 and, possibly, about the circumstances of a prior TRO dismissed by plaintiff. Instead, the court not only permitted plaintiff to testify about events allegedly occurring on May 2, of which defendant had no notice, but based the FRO on a finding that this later conduct constituted the predicate act of harassment. This clearly was erroneous and a violation of defendant's due process rights.
Furthermore, we are convinced the record does not substantively support the grant of the restraining order against defendant. The judge made no findings of fact concerning the alleged harassment on May 2 or the assault on April 29. She did not explain why she found plaintiff more credible in both instances, did not address the inconsistencies in plaintiff's accounts, and appeared to ignore defendant's factual allegations and the corroborating testimony of his witness. For example, the judge did not address plaintiff's lack of proof of the alleged fifteen to twenty phone calls from defendant, testimony and evidence presented by defendant and his witness that plaintiff texted him the evening of May 2 to invite him over to pick up the letter he had requested, the fact that plaintiff did not appear to be upset at the conclusion of the movie on April 29, or defendant's explanation for following plaintiff's car in February.
Nor did the judge articulate what exactly she found harassing about defendant's conduct on May 2. A violation of N.J.S.A. 2C:33-4(a) "requires the following elements: (1) [the] defendant made or caused to be made a communication; (2) [the] defendant's purpose in making . . . the communication . . . was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient." State v. Hoffman, 149 N.J. 564, 576 (1997).
Plaintiff's testimony concerning the phone calls from defendant did not establish the required purposeful intent to harass. The testimony established the calls were for the purpose of obtaining a letter from plaintiff. Plaintiff did not testify that she told defendant to stop calling her. To the contrary, she responded by inviting him over to her house to pick up the letter and, when she was not home when he arrived, requested he wait for her there.
As to the second Silver prong, the judge never explained why the numerous phone calls, if they occurred, were not merely a conflict over the status of the letter defendant had requested plaintiff write. Nor did the judge address why, if plaintiff were truly concerned for her safety on April 29 as she claimed, she remained at the restaurant with defendant, sat through the entire movie, made an amorous advance to him, joined him in his car, and phoned and texted him three days later. Moreover, though defendant's Facebook posting was nothing to be proud of, the judge never explained how it objectively arose to the level of "alarming" or "seriously annoying" comments so as to be "extremely harassing" and not just the ramblings of a disgruntled, potentially ex-boyfriend. We are satisfied the type of conduct testified to at trial is not of sufficient magnitude to constitute acts of domestic violence but, rather, falls more into the category of "domestic contretemps," which does not warrant issuance of a restraining order under the Act. See Corrente, supra, 281 N.J. Super. at 250.
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