E.B., Plaintiff–Respondent, v. M.N., Defendant–Appellant. (2013)

Defendant M.N. appeals the Family Part's August 14, 2012 final domestic violence restraining order (FRO) in favor of his wife, plaintiff E.B. We remand for reconsideration and articulation of reasons.

I.

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

The parties began living together in July 2005 and were married in February 2008.   They have a son, who was born in June 2008.   According to E.B., she and M.N. started a trucking company together in 2006.   M.N. asserts that he started the company.

E.B. filed for divorce in February 2012.   The complaint was served in May, but M.N. may have been aware of the filing prior to service of the complaint.   Although there had been a brief separation, the parties were living together at the time the divorce action was filed and continued to do so until the commencement of the present action.

On July 29, E.B. sought and received 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.   She alleged that M.N. had made terroristic threats against her in a text message.   See N.J.S.A. 2C:12–3(a).   Her complaint referred to a prior incident of domestic violence in 2011, which involved allegations of threats and physical assault.   The 2011 complaint had been withdrawn by E.B. prior to a hearing on the merits.

The trial took place over two days, August 7 and 14, 2012.   Both parties were represented by counsel at that time.   On the first day, prior to the start of the trial, E.B.'s attorney moved to amend the DV complaint to add a claim that M.N.'s conduct also constituted harassment.   See N.J.S.A. 2C:33–4.   The judge permitted the amendment over M.N.'s objection.

E.B. testified on the first day of trial.   She described a series of threats from M.N. delivered in person and by text message.   She also testified that M.N. limited her access to money.   M.N. testified on the second day.   He denied E.B.'s allegations that he threatened her or deprived her of financial resources.   E.B. then testified in rebuttal with respect to how she preserved the text messages.

The judge explained his factual findings and reasons for entering an FRO as follows:

And what I have picked up and perhaps sensible to lay it out in a time line, that is that the parties have been married for several years.   That recently things ․ came to a head in the sense that a divorce complaint was filed in late February of this year.   For reasons that are not clear to me, at least that I can recall it was not served ․ on the husband until sometime in May, several months, two or three months after the complaint.   But the events we're talking about take place in a situation where there were sufficient problems in the marriage to have prompted a filing of the divorce complaint.

And then during a period when the parties were trying to cohabit and work through what I will call the divorce issues, these or many of these, certainly the specific allegations of the complaint and other problems, communications, issues between the parties came up.   What I pick up from listening to the parties' testimony and what I think is an important part of ․ assessing the application is that the communications or communication claimed to be threatening or harassing are occurring, of course, in a broader context and need appropriately to be assessed in a broader context.   I believe the case of [J.D. v. M.D.F., 207 N.J. 458 (2011),] stands for that proposition.

And it appears to me that the context in which this application is made, and the context in which issue is taken with a, by its terms, a discrete statement or what the plaintiff alleges is a threatening or harassing communication on a discrete date, is taking place in a broader context that has become, in my mind fairly clear․

I believe a fair understanding of what has been occurring here is that the plaintiff has become more and more dissatisfied and unhappy with the marriage.   And has decided, and this is of course corroborated, by the filing of a divorce complaint that the marriage cannot be fixed.   What I pick up from [M.N.] is that he doesn't want that to happen.   That he is sorry that the marriage has gotten to that point and he in fact, is having trouble accepting․

It appears, though, there are more elements to the situation than just those fairly routine, I guess dynamics.   I was struck in the course of the testimony and I think the easiest way to explain it is just to lay it out on the record, [M.N.] appeared to have a strong need to control even the testimony and presentation that was made here in the court, his answers were frequently not direct at all to the question put, but would be an attempt to retake the initiative, to recast the question, or at least have the answer be in his terms, terms he wanted.   It got to the point where he would say, I object as irrelevant or words to that effect.   It certainly is the kind of thing, it occurred to me as I was listening, that it was ․ almost a compelling need to try to control what was going on here.

Now when you talk about control it is a loaded term in domestic violence [ ] juris- prudence.   And I think sometimes it is used in a sense in a cliched way, because in my experience—commonsense and experience everybody wants to be in a certain amount of control of the elements of their life.   So to want to have some control or be in some control is normal and not improper or certainly illegal or even unhealthy.

It is rather when it becomes an unhealthy controlling situation that it is problematic.   And our jurisprudence and domestic violence refer to that kind of situation.

Now I believe the plaintiff's testimony establishes what I would call an unhealthy environment of control.   And it is the case that it appears that rather than being given money so she could buy a bra or two bras, an item of intimate apparel, the determination was made that [M.N.] would be in charge of or be a part of that process.   And it is the fact that when asked about whether she was given funds or money to deal with things, the answer was I provide the things needed and that's that.   I think this is evidence of a type of financial control, and people's styles and financial styles are different, but certainly it fits into that.   And it is amplified and echoed by the experience I had in the courtroom where it was difficult to, as I said before resist [M.N.'s] attempt to control the process, control the question and answer.   I find it to be more than just an element of personal style, but kind of echoing what the plaintiff has been dealing with.   If that can happen in a courtroom, imagine what can happen in a marital situation.

And then I repeat the notion that it appears that it is awkward for her to even get, or buy personal items of apparel without the supervision, in a sense of [M.N.]. So I don't find her complaints about that tone of the relationship to be off the mark.   I do find them to be credible.

So getting back to the ultimate analysis, and citing some of the principles of [J.D. v. M.D.F.], where they talk about difficulties of assessing harassing behavior, communications, et cetera, and how a single fact in context can change all the circumstances.   The relevant statute of harassment indicates that a person with a purpose to harass another makes a communication in a manner likely to cause annoyance or alarm.   I think that section is relevant here.   I also think there's a sense in which there was a course of alarming conduct and now referring to the controlling elements of the situation.   I do find that the purpose was to harass, certainly a sense in other words, of controlling an[d] subordinating someone else's will to another.

So I think particularly in the context of domestic violence jurisprudence, that is satisfied.   Regarding the second prong of the [Silver v. Silver, 387 N.J.Super. 112, 126 (App.Div.2006),] analysis, I wish that it were so that the parties could go on and sort out their difficulties without court supervision or much court intervention.   But I don't think that is possible here.   I think that the issues of control that I've referenced would immediately reassert themselves if there were not a restraining order.

So I find that there is a need for the restraining order.   Now I go back to one item here the initial complaint, as I say is very bare bones.   And my decision has fl[e]shed out those bones and given context to it.   I think that is fine.   But I think, let me formulate what I want to say here.   It would've been better if the complaint were more comprehensive.   Nevertheless, I think that given the time that we've spent on the case there has been a fl[e]shing out of the dynamics.   Everybody has had a chance to tell their view of the circumstances.   And that is what I've been presented with.

So I will be issuing a restraining order.   I wish that I did not have to do it.   I don't think it is always a great thing to intervene in people's lives in this fashion.   I wish that things could've been sorted out in a healthy way for everybody earlier than now.   But it appears that it is not going to be healthy and it's not going to be healthy in a way that does require intervention.

M.N.'s attorney then asked the judge about his disposition of E.B's allegation that there had been a terroristic threat.   The following exchange took place:

[Defense Counsel]:  Point of clarifica-tion, Your Honor, you're finding this domestic violence based upon financial control, unhealthy financial control which constitutes harassment.   Correct?

THE COURT:  I wouldn't put it exactly that way, but certainly those are both elements of my thinking.

[Defense Counsel]:  The reason I'm asking is because we're facing a third degree indictment for terroristic threats, and I want to make sure that you've made no findings that terroristic threats in fact happened, but merely that the financial control situation, is what formulates the harassment.

THE COURT:  Let me resolve that more clearly.   On balance, I find the plaintiff's testimony to be more credible than the defendant[']s, and I do accept her contention that there was a threatening and harassing communication.   I am making my finding under harassment because as the plaintiff said, she hopes that he's not serious about it.   I think it is better to understand the dynamic of this relationship as harassment rather than a commitment to threaten and to kill.   I didn't pick that up.

Nevertheless, ․ I'll leave it as simple as I find the plaintiff's account of what happened to be credible.

The FRO entered by the judge gave E.B. exclusive possession of the marital residence and temporary custody of the parties' son, with a provision for parenting time for M.N. The judge also provided for temporary support for E.B. and the child.   All of those provisions were deferred and made subject to the pending matrimonial action.   This appeal followed.

II.

On appeal, M.N. argues that there was a due process violation with respect to the amendment of the complaint because the judge's finding was based on “financial harassment” and he was not given sufficient notice to meet that contention.   He also argues that there was insufficient evidence to warrant a finding of financial harassment.

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) (citing 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, supra, 387 N.J.Super. at 125.  “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. (citing N.J.S.A. 2C:25–29(a)).   “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 (footnote omitted).

In her complaint, E.B. alleged that M.N. made terroristic threats, as defined by N.J.S.A. 2C:12–3(a).   The statute provides that “[a] person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another ․, or in reckless disregard of the risk of causing such terror․”  It is clear from the judge's findings of fact that he did not believe that M.N. made terroristic threats.

As noted, E.B. successfully moved to include harassment as a second predicate act on the first day of trial.  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.

We understand the amendment to have alleged that the same statements and course of conduct that were characterized as terroristic threats in the original complaint were, alternatively, harassing statements and conduct.

We note that the amendment took place on August 7, 2012, on which E.B. gave the bulk of her testimony on direct and cross-examination.   There were six full days between that testimony and M.N.'s testimony on the second trial day.   That hiatus gave him more than sufficient time to prepare to meet the facts to which E.B. testified, including those related to the parties' financial relationship.   We find no merit in M.N.'s contention that there was a due process violation, and no need to discuss it at length in a written opinion.   R. 2:11–3(e)(1)(E).

Under the facts of this case, E.B. was required to show that M.N. (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, Current N.J. Criminal Code Annotated, comment 3 on N.J.S.A. 2C:33–4 (2012).   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 mark 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).]

The trial judge found E.B.'s testimony that M.N. made the statements she attributed to him, including threats to kill her or to kill both her and himself, to be credible.   We will not second guess the judge's credibility determinations or factual findings in that regard.   They are amply supported by the evidence, as is the judge's implicit determination that the statements were made with the requisite intent, primarily in an effort to control E.B.

We are, however, concerned about the judge's finding that an FRO, as opposed to an order in the matrimonial action, was necessary in this case.   In determining Silver 's second prong, “the guiding standard 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.”  387 N.J.Super. at 127;  see also J.D., supra, 207 N.J. at 475–76, 488.   There was only a brief discussion of that issue in the judge's oral opinion.

There is no doubt that the parties were having marital difficulties, which included disputes over money, and that M.N. desired to control E.B. through her access to money.   Both parties apparently used some amount of abusive language, although M.N.'s rose to the level of harassment, as found by the trial judge.   What is not clear to us from the judge's opinion is (1) whether the problems could have been resolved through an order in the matrimonial action giving E.B. exclusive possession of the marital residence and temporary custody of the parties' son with a parenting time schedule, as well as provisions for support pendente lite or (2) whether an FRO was necessary to protect E.B. “from ․ immediate danger or to prevent further abuse.”   See Silver, supra, 387 N.J.Super. at 127.   As the Supreme Court noted in J.D., supra, 207 N.J. at 474, an FRO is generally enforced through the criminal justice system, while a matrimonial order is not.

Unlike the trial judge, of course, we have not had the benefit of seeing and hearing the witnesses in person.   In addition, as we have observed, the judge's explanation concerning the second prong was relatively brief.   Because we cannot make an assessment on the present record, we remand the matter to the trial judge for further consideration of whether an FRO is required and a more extensive articulation of his reasons for the conclusion he reaches.   We do not suggest a preferred result, but only that the alternative outlined be considered and the judge's decision, one way or another, be more fully articulated in the event of a further appeal.   Pending resolution of the remand, the FRO shall remain in place.   The remand should be completed within thirty-five days from the date of this opinion.   We do not retain jurisdiction.

Remanded.

PER CURIAM