June 10, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 14, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FO-13-0319-12.
Gold, Albanese & Barletti, attorneys for appellant (Michael S. Williams, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Caitlin J. Sidley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Hayden and Hoffman.
Defendant C.C.L. appeals from the May 4, 2012 order finding her guilty of two counts of contempt of a final restraining order (FRO) issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, a disorderly persons offense, N.J.S.A. 2C:29-9b. For the reasons that follow, we reverse.
Defendant and E.L. (Eli) were married in 2000 and had two daughters, one born in 2002 and the other in 2005. The final restraining order (FRO), the second one Eli had obtained against her, was entered on March 29, 2011. The FRO included a provision barring any communication between the parties except via email and text messaging, and then only concerning their two daughters. The FRO did not restrict defendant's ability to have phone contact with her daughters.
On June 16, 2011, defendant pled guilty to contempt, N.J.S.A. 2C:29-9(b), for violating a previous restraining order by calling Eli's home telephone on various dates in December 2010. In addition to financial penalties, the court required defendant to continue with psychological counseling.
The parties were divorced on July 6, 2011. Their property settlement agreement (PSA) provided that Eli "shall have sole legal and residential custody of the children born of the marriage, with the understanding that the legal designation may be modified at such time as the Wife completes her out-patient treatment program as recommended by the Division of Youth [and] Family Services." The PSA included a schedule for defendant to have supervised parenting time and provided for the children "to place a call to their mother at 7:30 p.m. daily[.]" The PSA also contained language that superseded the FRO regarding parenting time matters. Finally, the PSA provided that "Husband shall pay limited duration alimony directly to the Wife in the amount of [$1200] per month for a period of five . . . years, commencing August 1, 2011."
By August 2011, the situation between the parties appeared to improve, with Eli calling defendant to discuss amending the FRO, and other matters. He also called and asked defendant what she wanted for her birthday, and then after buying her a necklace as a birthday gift, called to see if she liked it.
The incidents giving rise to this appeal occurred as follows. The first count of contempt arose from emails the parties exchanged concerning various matters, including the children, a storage unit, and financial matters. The second count concerned telephone calls from defendant to Eli asking to speak with the children. On October 3, 2011, Eli went to the police and signed the contempt complaints.
The email exchange that lead to the first contempt charge occurred on September 1, 2011, and began with defendant sending the following email to Eli at 10:16 a.m.:
What happened to the girls yesterday did not hear from them?
I am going to the storage unit to pay for Sept and would like my keys back, please have Idonna or whomever is with my children bring them to the office of the storage facility or otherwise I will be there around 4 ish and someone can give them to me then.
Did not see my direct deposit for alimony that is due today, where is it?
Thirty-two minutes later, Eli responded:
They were to have called you last night. I am in Florida dealing with major issues with my Father, had to fly in last night. You never gave me the account information. I can mail you a check when I return next week or can try and make a deposit from here if I get the account number. I will be deducting July and August auto insurance expenses for the Jeep due to the fact that you refuse to transfer the vehicle into your name and I am forced to continue to insure it as it is still in my name/my responsibility. If this is DUI related you need to come clean as I cannot be held liable for any potential issues that may impact my eligibility in the future. I will differ [sic] any further dialogue regarding the vehicle to legal channels.
And for the record any correspondence between us is strictly to be about the children as clearly stated in numerous legal documents. Calling me a thug and all your other violations is unacceptable.
Eighteen-minutes later, defendant replied:
So you are withholding the children on both phone and visitation, are not returning my keys to the storage units containing my property that I am paying for, and are now adding to the mix another of your unilateral unlawful decisions to withhold money from my alimony? I can have you arrested for lack of payment and am inclined to do so . . . Next week is not acceptable, have money in the acct by end of day or I will move forward legally.
The following day, defendant filed a motion to enforce alimony payments, visitation rights, and daily phone calls, and to address various financial issues. On September 27, 2011, three days before the return date of defendant's enforcement motion, Eli filed a motion to terminate defendant's visitation as well as her alimony.
At trial, Eli testified that in early August 2011 (after the divorce while the FRO was in place), he telephoned defendant and had conversations that went beyond the scope of the children; this was during periods when they were "not adversarial at the moment in time. And it was easier just to talk about it."
Eli acknowledged that the FRO does not expressly prohibit defendant from calling her daughters nor does the PSA prohibit her from calling her daughter's cell phones. As of October 3, 2011, defendant had not had visitation with her daughters for almost two months. Eli further admitted that the nightly phone calls from his daughters to their mother were often made earlier or later than the appointed time of 7:30 p.m. "[a]nd there were nights maybe that we didn't get to [it]."
Eli testified that on October 3, 2011, defendant called his cell phone to speak to the children but the call ended quickly with Eli advising defendant that she was not allowed to call. Eli said that defendant called again and he let the call go to voice mail. He said defendant then called their daughter's cell phone and asked about her homework.
Defendant agreed with the testimony of Eli that they had been communicating freely about the storage unit and other matters. Defendant testified that not only her items were in the storage unit, but also her children's. Regarding the issue of alimony, she testified that, without alimony, she cannot pay her bills in order to have electricity or buy food for the children when they visit. She also testified that as of September 1, 2011, Eli had not allowed her to see her children since August 12, 2011.
Regarding the events of October 3, 2011, defendant testified that she did not call Eli, but rather called her daughters three times. She testified that she called her daughters the morning of October 3, 2011 because, during her telephone conversation with her daughters the night before, she told her eldest daughter to make sure her sister completed her homework assignment and advised the girls that she would call them the next morning to make sure it was done. Defendant testified that it was her understanding that the terms of the FRO and PSA did not prohibit her from contacting her daughters.
The trial judge found defendant guilty of both charges of contempt. Despite acknowledging that Eli's initiation of direct contact with defendant where matters not pertaining to the children were discussed, was "improper, [and that] he shouldn't do it[, ]" the judge explained her decision by stating that "this is a strict liability situation . . . . there is a strict bright line with regard to violation of contempts."
On appeal, defendant challenges the trial court's determination that the State satisfied its burden of proof. She argues that the State failed to prove that she knowingly violated the FRO, and that the evidence did not otherwise support the trial court's guilty findings.
Review of a judge's decision in a criminal trial is limited to "determin[ing] whether the findings made could reasonably have been reached on sufficient credible evidence present in the record[, ]" given the burden of proof, which is proof beyond a reasonable doubt. State v. Johnson, 42 N.J. 146, 161 (1964); see also N.J.S.A. 2C:1-13a. We recognize that our scope of review is limited, and that we are required to accord substantial deference to the trial judge's findings of fact in a non-jury trial. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). The judge's legal interpretation of the statute, however, and "the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "The only question before us is whether the record contains sufficient evidence to support the judge's conclusion." State v. J.T., 294 N.J.Super. 540, 544 (App. Div. 1996) (citing Johnson, supra, 42 N.J. at 161).
To be guilty of violating N.J.S.A. 2C:29-9(b), defendant must have "knowingly" violated the terms of the order. We have held that expressing some level of anger during a parenting exchange as a result of what a defendant may have perceived as an unjustified delay is insufficient to prove the requisite mental state. See State v. Finamore, 338 N.J.Super. 130, 138-39 (App. Div. 2001) (finding proofs insufficient to demonstrate a knowing violation of the FRO). As we have said in the past, the Act "was not intended to attempt to regulate and adjudicate every loss of temper, angry word, or quarrel between persons connected by a familial relationship." State v. Wilmouth, 302 N.J.Super. 20, 23 (App. Div. 1997).
We are satisfied that the record does not establish an evidential basis for concluding beyond a reasonable doubt that defendant knowingly violated a restraining order when she exchanged emails with Eli on September 1, 2011 or when she called his cell phone trying to speak with her daughters on October 3, 2011. Contrary to the understanding of the trial court, we are unaware of any authority for deciding contempt charges for alleged violations of the Act on a "strict liability" basis.
Defendant, citing Wilmouth, and State v. Krupinski, 321 N.J.Super. 34 (App. Div. 1999), further argues that the conduct here was of a trivial nature that did not warrant guilty findings. We agree. The facts of this case are comparable to the circumstances of Wilmouth. There, we overturned a contempt of a domestic violence restraining order conviction, despite the fact that defendant spoke to the mother of his child about upcoming visitation in "what she described as a hostile manner and in a gruff voice." Wilmouth, supra, 302 N.J.Super. at 22. When the incident occurred, she was picking up the parties' child after visitation, accompanied by a friend and a police officer. Ibid. The parties had previously spoken to each other about visitation despite the restraining order. Id. at 21-22. We said defendant's attempt to discuss visitation could not "be regarded as constituting quasi-criminal conduct subjecting defendant to the whole panoply of penalties imposable for such conduct." Id. at 23.
While the purpose of the Act is to provide maximum protection from abuse, defendant's conduct in this case cannot reasonably be considered as constituting criminal or quasi-criminal conduct subjecting her to the penalties for such conduct. The factual circumstances presented — including Eli initiating numerous contacts outside the bounds of the FRO and the limited nature of the alleged violations — causes us to conclude this amounted to "a trivial, non-actionable event." Krupinski, supra, 321 N.J.Super. at 45; Wilmouth, supra, 302 N.J.Super. at 23. As we stated in Wilmouth,
There are too many substantial and significant domestic violence matters requiring the urgent attention of the court system to squander judicial and prosecutorial resources on patently unmeritorious litigation which, moreover, unfairly subjects people to criminal penalties. The Domestic Violence Act affords critically needed protections in appropriate circumstances. It was not intended to attempt to regulate and adjudicate every loss of temper, angry word, or quarrel between persons connected by a familial relationship.
Although we appreciate the trial judge's endeavor to be vigilant in the enforcement of the Act what transpired here simply does not warrant a criminal conviction
We reverse defendant's convictions and remand to the Family Part to enter an order dismissing the complaints After giving notice to the parties and an opportunity to be heard the Family Part shall consider whether the FRO should be clarified to be certain that both sides understand what they can and cannot address in their emails texts and phone calls