R.C., Plaintiff–Respondent, v. S.C., Defendant–Appellant.

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Superior Court of New Jersey, Appellate Division.

R.C., Plaintiff–Respondent, v. S.C., Defendant–Appellant.

DOCKET NO. A–3070–12T4

Decided: March 21, 2014

Before Judges Grall and Waugh.

Defendant S.C. (Seth) 1 appeals the final domestic violence restraining order (FRO) entered against him on January 23, 2013.   We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In December 2012, plaintiff R.C. (Ruth) and Seth were married, but living separately.   Ruth lived in the marital residence, and Seth lived in an apartment near his work.

On December 24, Ruth filed a complaint seeking a temporary restraining order (TRO) pursuant to the Prevention of Domestic Violence Act of 1991 (DV Act), N.J.S.A. 2C:25–17 to –35.2  She alleged that Seth harassed and threatened her and that he pushed her down causing injury.   The complaint alleged that the events at issue took place on December 22.3

The trial in this matter was held on January 23, 2013.   Ruth represented herself and Seth was represented by an attorney.   Ruth testified that Seth called her in the morning and wanted to come to the marital residence.   She described his language as abusive.   Although she asked him not to do so, Seth came to the house anyway, arriving at about 8:15 a.m. While at the house, Seth was changing around doors and locks.   Ruth described Seth's language at that time as demeaning and at times threatening.   She specifically testified that he made statements such as:  “I don't need anyone” or “You can fall down the steps.   Nobody would ever know.   It would look like an accident” and “You don't need me to be the one to blow out your brains.   I can have someone else do it, have an alibi, and be someplace.”   She further testified that Seth had a gun at the time, which he pointed in her direction.   According to Ruth, Seth pushed her down.   Although she did not realize the extent of her injury that day, she called an ambulance the following day and was taken to the hospital.   In response to a question by the judge, Ruth testified that she was afraid for her safety.   She also testified about prior incidents of alleged domestic violence.

Seth denied Ruth's allegations.   According to his testimony, he arrived at the house at 8:15 a.m. and let himself in with his key.   A piece of metal against the inside of the door fell and made a noise, which caused Ruth to come out of the bedroom.   He then heard a cough and a male also came out of the bedroom.   According to Seth, he politely asked the male to leave and not return.

Seth discovered that a grill was missing from the yard, so he called the police.   They arrived shortly before 9 a.m. and he showed them where the grill had been.   They did not enter the house.

After the police left, Seth started changing doors and locks to provide a secure location for his property and for him to sleep, because he wanted to move back into the marital home.   He explained that his personal property had previously been stolen from inside and outside of the house, that Ruth had people coming into the house whenever she “like[d],” and that she had probably given them keys to the house.   Seth testified that he and Ruth began to argue about the changing of the locks, and Seth insisted that he was going to do it.   At that point, Ruth called the police, who came to the scene at about 10:30 a.m. They found no basis to take action after Seth told them he would leave when he was finished with the locks.

The police came to the house a third time, apparently because a neighbor had called them.   Both Seth and Ruth told them that there was no problem.   According to Ruth's testimony on cross-examination, the physical threats and her fall took place after the police left the third time.   She testified that after the third visit she did not call the police again because the officer told her that whoever called would be arrested and because she did not know the extent of her injury.

The judge explained his reasons for issuing the FRO as follows:

[Ruth's] testimony I found somewhat disjointed.   She had difficulty tracking specific dates and times of events.   But I did find, in part, her testimony credible in that there was a consistency that I found in that testimony.   The allegations as to calling her names, a whore, a bitch, those types of statements I don't find are sufficient here to constitute harassment under the domestic violence statute, in particular[ ] based on the findings in State v. L.C., 283 N.J.Super.   441 ( [App. Div.] 1995), calling someone a whore and a slut during an encounter with the children was found not to constitute domestic violence.

The issue then becomes were there threats made and was there physical contact here.  [Ruth] testified ․, and I found credible her testimony, that there were threats that he could blow her brains out, or that he could make her fall down the stairs and make it appear to be an accident, and although it was suggested that the allegations with respect [to] waiving a gun at [Ruth] were not in the domestic violence complaint, they actually are contained in the domestic violence complaint on page six, in which it says, “Defendant had a gun with him, stating that it could be used to blow your brains to pieces.”   So although the testimony isn't identical or exact, I do find the plaintiff's recollection to be credible about that.

[Seth], in fact, indicated in his testimony that [Ruth] had somebody at the home, and I think his words were ․ “Kindly leave my house and don't come back.”   I don't find credible that quite such gentle words were used at that time, and that is consistent with․  Where she alleges [Seth] told her she can't—the word “have” is missing, but can't other people in the house, which is part of the complaint that [Ruth] makes, which, quite frankly, is confirmed by [Seth] here.

I also noted [Seth's] testimony as he was describing some of the food that he brought to the home, that he had brought some chicken—roasting chickens there, asking the plaintiff, and again his words, “to kindly have it ready for him at a certain time,” which is, quite frankly, the type of controlling behavior that the Prevention of Domestic Violence Act is intended to protect against here.

With respect to whether under Silver v. [Silver] ․ I do find that there's been a predicate act proven of domestic violence.   I find that the threat has been established.   I also find that there was a touching or shoving, which did cause injury to [Ruth]. I do find that testimony to be credible from her, and so I do find [Ruth] has satisfied that criteria.

With respect to the third prong under Silver v. Silver, whether there's a need for a restraining order to prevent future acts of domestic violence, there is testimony as to prior threats over a period of, I think [Ruth] testified to I believe 25 different occasions.   There have been prior applications for [TROs] by both [Ruth] and [Seth] here against each other.

The—given the nature of this relationship and what has been ongoing, I do find there is a need to prevent future acts of domestic violence here by issuing a restraining order.

The judge gave Ruth exclusive possession of the marital home and barred Seth from entering it.   The FRO also prohibited Seth from possessing weapons.4  This appeal followed.

II.

On appeal, Seth argues that Ruth failed to prove the elements required for issuance of an FRO and that the entry of the order in this case “trivializes” the DV Act.

We ordinarily accord great deference to the discretionary decisions of Family Part judges.  Donnelly v. Donnelly, 405 N.J.Super. 117, 127 (App.Div.2009) (quoting 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).   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).

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. “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.

The complaint alleged harassment as the predicate act of domestic violence.5  N.J.S.A. 2C:33–4 defines harassment, in relevant part, as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a.  Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;  [or]

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

To prove harassment, Ruth was required to show that Seth (1) acted with a purpose to harass;  and (2) committed an act prohibited by subsection (a) or (c) of N.J.S.A. 2C:33–4.   Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:33–4 (2013).   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)) (internal quotation marks omitted).   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)) (internal quotation marks omitted), 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.   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;  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 ․ specifically set forth their findings of fact in that regard.”  Ibid. (quoting Cesare, supra, 154 N.J. at 405) (internal quotation marks omitted).   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).]

Although the trial judge held that Seth's demeaning language did not amount to harassment for the purposes of the DV Act, he found as fact that Seth had threated Ruth and that he had pushed her, causing her to fall and sustain an injury.   Pointing to the disjointed nature of Ruth's testimony, Seth argues that the judge should have credited his testimony rather than Ruth's.

There is no doubt that the transcript of Ruth's testimony reflects disjointedness and that her answers were sometimes unresponsive.   However, “in reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the [ ] court's credibility determination[s] and the judge's ‘feel of the case’ based upon his or her opportunity to see and hear the witnesses.”  N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App.Div.2006), certif. denied, 190 N.J. 257 (2007);  see also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (stating deference is afforded to a trial court's findings of fact as the trial court “has the opportunity to make first-hand credibility judgments about the witnesses” who testify).   The trial court's “feel of the case [ ] can never be realized by a review of the cold record.”  E.P., supra, 196 N.J. at 104 (internal quotation marks omitted).

Having reviewed the trial transcript, we are satisfied that the trial judge's factual and credibility findings are supported in the record.   He cogently explained his reasons for crediting Ruth's testimony, despite its disjointed nature, as well as his reasons for not crediting Seth's denials of Ruth's allegations.   We will not second-guess the judge's factfinding under those circumstances.

We further conclude that the record supports the judge's determination that Ruth satisfied her burden to prove a predicate act of domestic violence.   Seth's threats against Ruth, as found by the judge, constituted harassment within the meaning of N.J.S.A. 2C:33–4(c).  In addition, the physical pushing constituted assault within the meaning of N.J.S.A. 2C:12–1(a)(1).   The record supports a finding of the requisite intent for both.

The judge's second determination, that Ruth required a restraining order for protection, is similarly supported by the record.   In addition to the danger of further assaultive conduct, the judge articulated a concern that Seth's conduct was controlling in a way the DV Act is intended to prevent.   The record reflects that, while the parties were living separately, Seth sought to control Ruth's conduct through frequent visits to the marital home in order to see what was going on and who was there.   In addition, Seth wanted to return to the residence despite Ruth's contrary wishes.   Indeed, on the day of the events underlying Ruth's DV complaint, he visited the house at an early hour, against Ruth's wishes, ordered the male who was there with Ruth's consent to leave immediately and not return, and was rearranging doors and locks to facilitate his return to the residence.6

For all of the foregoing reasons, the order on appeal is affirmed.

Affirmed.

FOOTNOTES

1.  FN1. We refer to defendant and plaintiff by pseudonyms for the sake of convenience and confidentiality.

2.  FN2. Ruth had filed two DV complaints in the past, both of which were dismissed following trial.   The record on appeal does not include the complaints or transcripts from the earlier cases.   Consequently, it is not clear whether the dismissal of those cases turned on a finding that Ruth's claims were not credible or that a restraining order was not warranted.

3.  FN3. Ruth's testimony was not entirely clear as to whether the events at issue took place on December 22 or 23, but police reports in the record reflect the events took place on December 22.

4.  FN4. In the trial transcript, Seth's attorney asserted that his weapons had been seized as the result of one of the earlier complaints and not returned.

5.  FN5. The copy of the complaint in the record does not show the far left side of the document, so it is not clear whether the complaint also alleged assault, N.J.S.A. 2C:12–1, or terroristic threats, N.J.S.A. 2C:12–3(a), as predicate acts.   Nevertheless, the descriptive portion of the complaint clearly alleged that Seth threatened Ruth with a gun and pushed her down, causing an injury.

6.  FN6. We note that there is a distinction between ownership of a residence and the practicality of who is living there at a given time.   Those issues can be resolved in a separate matrimonial action.

PER CURIAM

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