M.G., Plaintiff–Respondent, v. M.V.W., Defendant–Appellant. (2011)

Defendant M.V.W. appeals from a November 3, 2010 final restraining order (FRO) entered against him on the grounds of harassment.   For the following reasons, we reverse.

Plaintiff M.G. and defendant began a dating relationship when plaintiff was sixteen-years-old and defendant was eighteen- or nineteen-years-old.   The relationship lasted for three to four years and ended, at the latest, in 2005.   Since then, there has been some contact throughout the years that occurred electronically, through e-mail and text message.   According to plaintiff, defendant's communications generally suggested that the parties revive their relationship, which plaintiff resisted.

In 2010, the frequency of the contact increased and included telephone calls by defendant.   Every few months, after midnight on a Saturday or Sunday, defendant would contact plaintiff through text message or telephone.   If awake, plaintiff would answer the phone and ask defendant to stop.   Usually on the following day, defendant would apologize and explain that he was drunk when he made the communication.   On either August 7 or 8, 2010, plaintiff received seventeen text messages and twenty phone calls from defendant.   At that time, plaintiff did not seek a temporary restraining order (TRO), but instead filed a report with the Howell Township police, who contacted defendant and advised him to refrain from any further contact with plaintiff.

Plaintiff did not hear from defendant again until October 24, 2010, when he sent her a text message stating, “Hi, I'm sorry.”   Defendant testified that he sent the text message “because [he] honestly felt bad about the whole thing and wanted to apologize․”  Following that text message, plaintiff filed for and obtained a TRO.

Shortly after issuance of the TRO, plaintiff received a text message from defendant's cell phone reading, “please call this all off.”   Defendant claims the text message was actually sent by a friend who had access to defendant's phone.   The message was sent because defendant was “heart broke[n]” by plaintiff's actions.   According to defendant, this text message was sent prior to being notified of the TRO, and the trial judge accepted defendant's explanation.

At the close of evidence, the court, crediting plaintiff's testimony, found that “defendant communicated with her electronically by text messages and so on repeatedly, and although not in offensive language, at hours and times that would cause annoyance or alarm in a reasonable person․”  The court concluded that

the history, therefore, even before the temporary restraining order was entered in October did constitute harassment in the form of communications;  that were at hours and in a frequency in number that were likely to cause annoyance or alarm.   I accept the plaintiff as credible where she says she is—she had fear or was alarmed, so that there was harassment under N.J.S.A. 2C:33–4.

On appeal, defendant contends that the court erred in finding that the evidence supported a finding of domestic violence.   We agree.

In reviewing a decision of a family court, we “defer to the

factual findings of the trial court,” N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the “family courts' special jurisdiction and expertise in family matters,” N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010);  Cesare v. Cesare, 154 N.J. 394, 413 (1998).   It is only “when the trial court's conclusions are so ‘clearly mistaken’ or ‘wide of the mark’ ” that we will intervene and make our own findings “to ensure that there is not a denial of justice.”  E.P., supra, 196 N.J. at 104.   Also, the “trial court's interpretation of the law 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);  see also State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed.2d 898 (2005).

Before a court can conclude that domestic violence occurred

and enter a restraining order, it must find that one of the

enumerated predicate acts under N.J.S.A. 2C:25–19 was committed.

See Silver v. Silver, 387 N.J.Super. 112, 125 (App.Div.2006).   Here, the court found that defendant's conduct constituted

harassment, an enumerated act under N.J.S.A. 2C:25–19.   A person

is guilty of harassment

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.

[N.J.S.A. 2C:33–4 (emphasis added).]

Under either section of this statute, a defendant must act with

the purpose to harass.  Bresocnik v. Gallegos, 367 N.J.Super. 178, 183 (App.Div.2004).   Subsection (a) targets specific modes of speech, including communications “at extremely inconvenient hours,” and requires that the manner of speech be “likely to cause annoyance or alarm[.]”  Subsection (c) requires a course of repeated conduct, motivated by a higher degree of purpose, “to alarm or seriously annoy[.]”  State v. Hoffman, 149 N.J. 564, 576 (1997).

In Hoffman, supra, our Supreme Court set forth the elements of N.J.S.A. 2C:33–4(a):

(1) defendant made or caused to be made a communication;

(2) defendant's purpose in making or causing the communication to be made 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.

[149 N.J. at 576.]

The Prevention of Domestic Violence Act, N.J.S.A. 2C:25–17 to –35, “is not designed to interdict all forms of unpleasant exchanges between parties.”   Bresocnik, supra, 367 N.J.Super. at 181.   Consequently, we do not measure the effect of the speech upon the victim;  we look to the purpose of the actor in making the communication.  State v. L.C., 283 N.J.Super. 441, 450 (App.Div.1995), certif. denied, 143 N.J. 325 (1996).   The harassment statute was not enacted to “proscribe mere speech, use of language, or other forms of expression.”  Ibid.;  see also State v. Fin. Am. Corp., 182 N.J.Super. 33, 36–38 (App.Div.1981).   Rather, since the First Amendment to the United States Constitution “permits regulation of conduct, not mere expression,” the speech punished by the harassment statute “must be uttered with the specific intention of harassing the listener.”  L.C., supra, 283 N.J.Super. at 450.

In Hoffman, supra, the Court found that two mailings of an envelope each containing a torn support order, a financial statement, and a motion to modify support, that were not sent anonymously and did not contain coarse language, did not constitute harassment.  149 N.J. at 583.

In Bresocnik, supra, we found the evidence did not show that a former husband's attempt to communicate with the complainant by sending letters and emails was meant to harass.  367 N.J.Super. at 182–83.   Specifically, we found that a letter delivered by an investigator to complainant's school where she was a teacher, in which he expressed love and regret for loss of their relationship, was innocuous and was neither threatening nor irrational.  Id. at 182.

As noted, a specific finding of a purpose to harass is integral to a finding of harassment.  E.K. v. G.K., 241 N.J.Super. 567, 570 (App.Div.1990).   Here, the trial judge made no specific finding of a purpose to harass and the facts provide no support for such a conclusion.   Plaintiff's reaction to defendant's efforts at communication does not supply a basis to infer that his purpose was to harass her.

Nor, contrary to the trial court's express conclusion, does the lateness and frequency of defendant's August 8, 2010 communications, standing alone, suffice to establish domestic violence.   Indeed, there is no evidence that any previous communication contained offensively coarse, violent, abusive or threatening language.   On the contrary, defendant's apparent purpose in his repeated contacts on August 8, 2010 was to attempt to revive a romantic relationship that had left him “heart broke[n].”  In fact, plaintiff never filed for a TRO following that isolated incident.   When she did eventually file for a TRO three months later, in October 2010, it was in response to a singular message in which defendant simply apologized for the earlier incident.   We are hard-pressed to find a rational basis for the court's finding that such an expression would cause annoyance or alarm in a reasonable person.   While defendant's continued attention was obviously unwelcome, it did not constitute harassment, the gravamen of which requires a purpose to achieve that result, or a course of alarming conduct.   And although in making this determination, we “must consider the totality of the circumstances,” Cesare, supra, 154 N.J. at 404, given the parties' history, Silver, supra, 387 N.J.Super. at 125, nothing in defendant's past conduct towards plaintiff reasonably suggests, in light of “[c]ommon sense and experience,” Hoffman, supra, 149 N.J. at 577, that he acted with a “conscious object” to cause plaintiff annoyance or alarm.   See N.J.S.A. 2C:2–2b(1).

We are satisfied there was no credible evidence sufficient to sustain a finding of harassment.   Accordingly, the FRO issued against defendant on November 3, 2010 is reversed.

Reversed.

PER CURIAM