R.J.T., Plaintiff–Respondent, v. A.V.T., Defendant–Appellant.

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Superior Court of New Jersey, Appellate Division.

R.J.T., Plaintiff–Respondent, v. A.V.T., Defendant–Appellant.

DOCKET NO. A–1720–12T1

Decided: February 27, 2014

Before Judges Sapp–Peterson and Lihotz. Advokat & Rosenberg, attorneys for appellant (Jeffrey M. Advokat, on the brief). Townsend, Tomaio & Newmark, LLC, attorneys for respondent (John E. Clancy, on the brief).

Defendant A.V.T. appeals from a final restraining order (FRO) issued pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25–17 to –35.   She argues the evidence presented by plaintiff R.J.T. failed to prove a designated predicate offense, to support the FRO. We agree and reverse.

The parties are married and have twin daughters, who were seven-years-old at the time of the incident.   Further, plaintiff and defendant were enmeshed in a highly contentious divorce proceeding.

Plaintiff filed a domestic violence complaint alleging harassment.   Specifically, he alleged defendant drinks, comes “home drunk and gets violent with him and the kids.”   A temporary domestic violence restraining order was entered on November 19, 2012.

The day before the final hearing, plaintiff amended his domestic violence complaint to “expand” his recitation of the prior history of domestic violence.   He added a list of domestic violence incidents that occurred during the past five years, but did not modify the facts describing the predicate offense.

The final hearing was held on December 4, 2012.   The parties appeared, represented by counsel.   Plaintiff was the sole witness, and introduced, without objection, a combined sixteen-page report prepared by the Chatham Township Police Officers who responded to plaintiff's call on the morning of the incident.

Plaintiff testified defendant regularly traveled to New York City and would “stay out all night long.”   On November 19, 2012, she returned from a trip at approximately 7:30 a.m. and appeared “visibly intoxicated.”   As plaintiff was getting the children ready for school, he noticed defendant sitting on the theater room couch “staring blankly into space.”   Plaintiff spoke to defendant, mentioning the need to prepare the children's lunches and defendant began to scream “crazy, incoherent stuff” from the other room.

At a side-bar requested by the trial judge, defendant stipulated she was intoxicated and had issues with alcohol.   When testimony resumed, the police reports were referenced and defendant also stipulated she recorded a blood alcohol concentration of .19 percent.   The police reports also stated when the officers arrived, defendant was sitting in a parked car while the engine was running, with the couple's two children in the back seat.   Defendant was arrested and charged with driving while intoxicated, N.J.S.A. 39:4–50.

Plaintiff testified he experienced “many similar occurrences,” calling it “the new normal.”   Past instances of defendant's intoxication were accompanied by “cursing,” “accusations,” name calling, “drunken verbal abuse,” threats and attempts to drive the children to school.   At the judge's prompting, plaintiff adopted his statement recounting past history in the amended complaint, rather than offering testimony.   Some prior incidents included physically aggressive behavior, such as throwing food or dishes when intoxicated, and others related to drunken verbal rants.   When asked whether he sought a restraining order to gain an advantage over custody arrangements, plaintiff responded “no,” stating he just wanted defendant to get help because he felt “[s]he's in denial about her alcoholism” and the family has suffered enough.

On cross-examination, plaintiff acknowledged calling police the morning of the incident to report his wife as an intoxicated driver.   His comments did not include assertions he was harassed or assaulted.   He requested the temporary restraining order four hours after she was arrested.   Defendant also admitted she argued with plaintiff about her intention to drive the children to school and used foul language.   A similar statement was repeated in plaintiff's certification that accompanied his emergent application submitted to a different Family Part judge, assigned to hear the parties' matrimonial matter.   In those pleadings, plaintiff requested an order to enjoin defendant from returning to the marital home, which was denied.

Following closing arguments, the judge found defendant was “in the grips of acute alcohol dependence, that is wreaking havoc on the household.”   The judge determined, in light of the past history, defendant's use of coarse language and yelling at plaintiff in the presence of the police satisfied the statute's proscribed harassing conduct.   Further, he found defendant's statements were designed to abuse plaintiff and her decision to get intoxicated repeatedly was purposeful, thus displaying a pattern of abusive controlling behavior.   Concluding defendant had harassed plaintiff, the trial judge entered an FRO.

On appeal, defendant argues the judge erred in concluding these facts evince harassment.   She maintains plaintiff did not provide proof of a predicate act, regardless of her past conduct, making entry of an FRO error.

Our role in reviewing the trial court's decision is limited.  “We are bound by the trial court's findings ‘when supported by adequate, substantial, credible evidence.’ ”  Finamore v. Aronson, 382 N.J.Super. 514, 519 (App.Div.2006) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citations omitted)).   Reversal is warranted when a trial court's findings are “so wide of the mark that a mistake must have been made [,]” N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations and internal quotation marks omitted), including factual findings “ ‘so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice [.]’ ”  Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.Super. 154, 155 (App.Div.), certif. denied, 40 N.J. 221, (1963)).   Simply, when a reviewing court concludes there is insufficient evidentiary support for the trial court's findings, we reverse.   Our review of a trial court's legal conclusions is always de novo.  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A complaint filed under N.J.S.A. 2C:25–28, seeking an FRO in accordance with N.J.S.A. 2C:25–29, allows a court, upon a finding of domestic violence, to impose various relief determined necessary to protect the victim from future domestic violence.   The Supreme Court has emphasized the Act “sets forth the Legislature's purpose and intention in broad and unmistakable language [.]”  J.D. v. M.D.F., 207 N.J. 458, 472 (2011).

The Criminal Code defines offenses which constitute domestic violence.   N.J.S.A. 2C:25–19(a).   See also E.M.B. v. R.F.B., 419 N.J.Super. 177, 181 (App.Div.2011) (holding the commission of a designated criminal offense is a predicate to the entry of an FRO).   However, “the Act does not concern itself with substantive criminal law and commission of a criminal offense may be found not to be domestic violence.”  D.N. v. K.M., 429 N.J.Super. 592, 606 (App.Div.2013).

When determining whether to grant an FRO pursuant to the Act, the trial judge must make two determinations.  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. Second, the judge must also find that “ ‘relief is necessary to prevent further abuse.’ ”  J.D., supra, 207 N.J. at 476 (quoting N.J.S.A. 2C:25–29b).   In this regard, it is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25–19 does not, by itself, “automatically ․ warrant the issuance of a domestic violence [restraining] order.”  Corrente v. Corrente, 281 N.J.Super. 243, 248 (App.Div.1995).   See also Peranio v. Peranio, 280 N.J.Super. 47, 54 (App.Div.1995).

Here, plaintiff alleged defendant committed harassment, pursuant to N.J.S.A. 2C:33–4, which is one of the predicate offenses under the Act. N.J.S.A. 2C:25–19(a)(13).   Although he did not say so, the trial judge appeared to rely on N.J.S.A. 2C:33–4(c), which provides “a person commits a petty disorderly persons offense if, with purpose to harass another, he [or she] ․ [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.”   A plaintiff must show the defendant (1) acted with a purpose to harass, (2) when committing a series of acts, (3) designed to purposely alarm or seriously annoy another.  L.D. v. W.D., 327 N.J.Super. 1, 5 (App.Div.1999) (quoting State v. Hoffman, 149 N.J. 564, 576 (1997)).

Proof of a purpose to harass is an essential element to support a finding under N.J.S.A. 2C:33–4 and the entry of an FRO. Ibid. The determination of whether there was a “purpose to harass” must be decided based on “common sense and experience.”  H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) (citations and internal quotation marks omitted).  “ ‘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.’ ”  Hoffman, supra, 149 N.J. at 577 (quoting N.J.S.A. 2C:2–2(b)(1)).   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).   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)), certif. denied, 188 N.J. 577 (2006).   In our review of this issue, we examine the inferences drawn by the trial judge from the facts presented to discern whether such “inferences were rationally based on evidence in the record.”  State v. Avena, 281 N.J.Super. 327, 340 (App.Div.1995).

Here, defendant's conduct, as described by plaintiff, included:  habitually staying out all night, drinking excessively to the point of intoxication, and arguing and exchanging verbal insults.   We conclude individually and collectively, these acts do not satisfy the statutory requirements to support a finding of harassment, as there is no evidence to suggest defendant acted with the conscious objective to harass plaintiff.   See J.N.S. v. D.B.S., 302 N.J.Super. 525, 527–28 (App.Div.1997) (holding vulgarity and anger inappropriately expressed by kicking a garbage can in the presence of the parties' young children was not harassment);  see also State v. Duncan, 376 N.J.Super. 253, 262–64 (App.Div.2005) (noting purposeful is the most difficult of all mental states to prove).

The judge correctly observed defendant was “in the grips of acute alcohol dependence.”   However, his conclusion that “the purposeful activity of going out and getting drunk and returning to the home, ․” satisfies the type of conduct required by the statute ignores that plaintiff suffered from alcohol addiction.   See State v. Freysinger, 311 N.J.Super. 536, 540 (Ch. Div.1997) (“[A]lcoholism is an illness or condition recognized by the medical profession as affecting its victims regardless of present consumption of alcoholic beverages.” (citing N.J.S.A. 26:2B–8)).   See also American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders, “Substance Abuse Disorders” (2014).   Plaintiff himself stated defendant had a problem.   He did not, however, aver defendant purposely drank to annoy him.   Therefore, the court's finding cannot be supported.

Next, the judge concluded defendant's drinking portrayed a course of alarming conduct or represented repeated acts “with a purpose to alarm or seriously annoy.”   While concern for a family member suffering from substance abuse is alarming, and behaviors accompanying intoxication may be characterized as annoying, we cannot agree that such conduct represents criminal harassment as defined by the statute.   Although defendant did not offer expert testimony, the nature and duration of her alcohol abuse, as described by plaintiff, reflected she drank because she was addicted, not because she sought to harass her estranged husband.   The trial judge incorrectly concluded the statutory elements were proved by these facts.

The remaining conduct identified by plaintiff – yelling, name calling, and arguing – also fail to satisfy the requisites of the statute.   Plaintiff's complaint did not describe or identify what defendant said.   At trial, he stated defendant was yelling “crazy, incoherent stuff” and called him vulgar names.   At the same time, he admitted he was yelling and hurling vulgar insults at plaintiff, as the two engaged in a mutual disagreement.   He called the police to prevent defendant from driving drunk, not because he was being harassed.   Similarly, the police report describes plaintiff as “incoherent.”   It reflects she was yelling at plaintiff, but does not record any statements she made.   The judge's assumption that defendant was “repeatedly commit[ing] acts with purpose to alarm or seriously annoy” plaintiff or was yelling coarse and abusive comments was conjecture, unsupported by the evidence.

We also note many opinions have considered the use of coarse language while venting frustration or arguing, and found such conduct does not amount to domestic violence.   See J.D., supra, 207 N.J. at 483 (“Not all offensive or bothersome behavior, however, constitutes harassment.”);  E.M.B., supra, 419 N.J.Super. at 182 (finding offensive speech alone does not does not constitute domestic violence, holding “we do not measure the effect of the speech upon the victim;  we look to the purpose of the actor in making the communication”);  Duncan, supra, 376 N.J.Super. at 263–64 (concluding the “venting of frustration or irritation” and use of obscenities does not demonstrate a purpose to harass);  J.N.S., supra, 302 N.J.Super. at 531–32 (distinguishing bickering from prohibited acts of domestic violence);  State v. L.C., 283 N.J.Super. 441, 450–51 (App.Div.1995) (finding defendant's reference to her husband's girlfriend using vulgar names in the presence of the parties' children is not harassment).

The judge's reliance on past history to transform defendant's drunken incoherent rant on November 19, to an act of domestic violence cannot stand.   Plaintiff offered no evidence to support the complaint's allegation of physical or violent behavior by defendant on the morning of the incident.   Although he stated she had previously engaged in physical conduct, he never linked these episodes to the events of November 19, by, for example, stating defendant's verbal assaults repeatedly and routinely escalated to violence.   Also, we do not find defendant's current conduct was ambiguous and understandable only in light of prior acts of domestic violence.  Silver, supra, 387 N.J.Super. at 123 (citations omitted).   See also Hoffman, supra, 149 N.J. at 577.   Rather, the record shows defendant was drunk, yelled incoherent statements, and directed vulgarities toward plaintiff.   However, the judge's mistaken reliance on defendant's past volatile conduct while intoxicated, as amounting to a current act of domestic violence, cannot be upheld.   A history of prior conduct will not substitute for proof of a predicate act.1

“We recognize the sincere concern of this trial judge for the parties' future safety and security, and the difficult task facing each judge who must rule on domestic violence complaints, never knowing with certainty which persons, among the many each day who swear out complaints seeking protection from alleged domestic violence, are actually at risk.”  J.N.S., supra, 302 N.J.Super. at 531.   Without question, defendant needs professional counseling and, possibly, medical attention to control her substance abuse.   However, a finding of domestic violence has broad and significant implications upon a defendant.   Courts must properly apply the Act's protections to instances of domestic violence, not engage in salutary objectives while ignoring the Act's purpose and the need to establish requisite proofs.2

Sufficient matrimonial jurisprudence provides Family Part judges with effective tools to protect children from harmful, offensive conduct by their parents and, as necessary, to exclude one spouse from the marital home, whether or not there has been domestic violence.  N.B. v. T.B., 297 N.J.Super. 35, 42 (App.Div.1997).  “Disputes which do not rise to the level of domestic violence can and should be addressed and resolved by the Chancery Division, Family Part, of the Superior Court without necessarily relying on the ․ [Act].” Ibid.



FN1. The judge mistakenly relies on Tribuizio v. Roder, 356 N.J.Super.   590 (App.Div.2003), to suggest past history can inform the predicate offense.   However, in Tribuizio, past history was used to determine the nature of the parties' relationship to establish jurisdiction, not a predicate offense.  Id. at 597 (stating “the nature of the precipitating event was clearly related to the former dating relationship”)..  FN1. The judge mistakenly relies on Tribuizio v. Roder, 356 N.J.Super.   590 (App.Div.2003), to suggest past history can inform the predicate offense.   However, in Tribuizio, past history was used to determine the nature of the parties' relationship to establish jurisdiction, not a predicate offense.  Id. at 597 (stating “the nature of the precipitating event was clearly related to the former dating relationship”).

FN2. The judge also relied on Roberts v. Roberts, 106 N.J.Super.   108 (Ch. Div.1969), as support for entry of the FRO. Roberts invoked the Family Part's general equity powers to grant a request to enjoin one spouse from the marital home.  Id. at 110.   Such equitable powers may not substitute for the specific provisions clearly defined by the Legislature under the Act, for a finding of domestic violence..  FN2. The judge also relied on Roberts v. Roberts, 106 N.J.Super.   108 (Ch. Div.1969), as support for entry of the FRO. Roberts invoked the Family Part's general equity powers to grant a request to enjoin one spouse from the marital home.  Id. at 110.   Such equitable powers may not substitute for the specific provisions clearly defined by the Legislature under the Act, for a finding of domestic violence.


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