D.L.K., Plaintiff–Respondent, v. W.K., Defendant–Appellant.

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Superior Court of New Jersey, Appellate Division.

D.L.K., Plaintiff–Respondent, v. W.K., Defendant–Appellant.

DOCKET NO. A–1127–12T2

    Decided: March 14, 2014

Before Judges Sapp–Peterson and Maven.Chance & McCann, L.L.C., attorneys for appellant (Deana L. Walsh, on the brief). D.L.K., respondent pro se.

Defendant appeals from the September 25, 2012 Final Restraining Order (FRO), issued by the Family Part judge pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25–17 to –35.   On appeal defendant contends the trial court erred in entering the order because the conduct the court found established the predicate act of domestic violence does not amount to harassment within N.J.S.A. 2C:33–4a.   Defendant additionally contends no evidence in the record supported the issuance of the FRO to prevent immediate danger or future abuse.   We reject these contentions and therefore affirm.

The facts upon which the court reached its determination were presented during a hearing at which both parties appeared pro se and testified.   In addition, plaintiff's friend, L.G., who resided in a mother-in-law suite located in the back of the house where the parties had resided together, also testified on behalf of plaintiff.

Plaintiff and defendant were previously married.1  After the divorce, the parties resumed living together intermittently with the last time being in 2011.   According to plaintiff, before and after the divorce defendant made numerous threats to her, such as, “I can dump you over in the ocean” and “I can bury you in a hole.”   In seeking the initial temporary restraining order, plaintiff identified these prior threats in her complaint.

Plaintiff testified that on August 25, 2012, defendant came to her place of employment, a Walmart store located in Vineland, where he approached her, called her a “f'ing bitch” three times, and then told her that he would see her in court.   She believed defendant's actions that day were motivated by her refusal to allow him to pick up the family dog for a visit with him and his two daughters the previous day.   She explained that on August 24, he sent a text to L.G. expressing his desire to pick up the family dog for a visit.   Plaintiff stated that she did not allow him to do so and he responded to L.G. in another text stating, “[a]ll bets are off.   I'm going to pull all the stops now.   She is done.   Sure hope she can find another job.   Me and my friends want to play now, too.”   Plaintiff testified that he showed up at her job the very next day and uttered the obscenities and then sent a text to L.G. stating, “[y]our friend is mighty embarrassed now.”

The court asked plaintiff why she believed issuance of an FRO was necessary.   The following colloquy occurred between the court and plaintiff:

THE PLAINTIFF:  Because I know what he's capable of.

THE COURT:  What do you mean by that?

THE PLAINTIFF:  He'll flatten your tires.   He'll do damage to your property.   He'll do whatever it takes to —— he'll get me — he's going to try and get me fired from my job.   I had to go to the police station.   I had to go to security in my place of employment.   I'm just trying to work.   I don't need somebody coming in and cursing at me and threatening me.   He's always threatening me.

THE COURT:  What do you mean by always threatening you?

THE PLAINTIFF:  He says he's going to — “Want to take a ride in my boat?   He goes, “I can get rid of my problem right now.   I can dump you over in the ocean,” or “I can bury you in a hole,” or —–

THE COURT:  When did he say that?

THE PLAINTIFF:  And, he said that in front of my friend, too.   So, ——

THE COURT:  When did he say that?

THE PLAINTIFF:  A lot of times.

THE COURT:  Is that while you were together or after –—


THE COURT:  —— you stopped living together.

THE PLAINTIFF:  Both —– yeah.

L.G. testified she was present on an occasion when defendant “threatened [plaintiff] to move out.”   She also testified that three months before the hearing she heard defendant tell plaintiff, “[m]aybe I'll rent a backhoe and solve my problems ․ bury it.”   Under cross-examination by defendant she acknowledged that late one night during the 2011 holiday season she and her husband had to place defendant's belongings in the garage because plaintiff had put his personal property outside.

Defendant testified that plaintiff had been physically abusing him for twelve years and that their living together after their divorce was a business arrangement.   He stated that he “moved in to compensate [her] monetarily for watching the children for me to work.   That's all it was.   There was no sharing a bedroom, nothing.   In fact we slept in separate parts of the house.”   He explained that at the time he most recently moved out of the house, he had one and one-half hours to do so and was unable to take everything, including the dog, because he had no place for it.   When the children expressed a desire to see the dog, he sent a text to L.G., who responded, “[Plaintiff] says, ‘No!’ –— emphatically no.”   He admitted he responded to L.G.'s text stating if that's what plaintiff wanted “[a]ll stops are out.”   He testified that he also stated in the text that he wanted compensation for furniture he left behind and also wanted his dog.

Defendant testified he received no response to that text, but stayed away.   About two weeks later, however, when he attempted to transfer his children to the new school district, he was unable to do so because plaintiff was the only name school officials had on emergency contact paperwork.   He stated he was “a little upset” and went to plaintiff's house to straighten things out and plaintiff came out screaming, “[t]hat's it.   You're done.   I've got a restraining order.   The cops are on their way.”

Defendant told the court that his children missed the dog, he didn't want to see plaintiff anymore and pleaded with the court to:  “Please, please give me the restraining order.   I don't want to see her no more.   I just want the family dog, and I want our belongings so that we can move on.”

Defendant did not, in his direct testimony, address plaintiff's allegations related to the Walmart incident.   In response to the court's inquiry whether he wanted to say anything about it, defendant admitted that he went to the Walmart.   He testified he was en route to a friend's home down the shore and stopped by the Walmart to “stock up on provisions, juices, snacks for the kids, whatever,” because it was on the way.   He saw plaintiff and asked whether he could see the dog.   When she said, “[n]o,” he told her “flat out, ‘[y]ou B, I'll see you in court.’ ”   He explained that in making the remark he was expressing his intention to institute a small claims action against plaintiff.

At the conclusion of the hearing, the court placed its decision on the record finding that harassment, as the predicate act of domestic violence, had been proved by plaintiff:

While this is somewhat of a close call on the facts presented to the Court, the Court does find that [W.K.]'s purpose in speaking to [D.L.K.] at the Walmart was to harass her, to cause her annoyance or alarm, done out of anger.   The Court finds from his testimony that he was upset about having to leave so quickly, about his things being left behind, about the dog being left behind;  and finds that as a result of that, he took it upon himself to speak to [D.L.K.] in such a manner that she would be caused to be annoyed or alarmed, which her testimony is that she was, in fact, annoyed or alarmed.

The court next considered whether issuance of an FRO was necessary to protect plaintiff from future acts of domestic violence:

The Court has heard testimony about one incident that took place at the Walmart store.   And, the Court has heard testimony about things that occurred during the time that the parties were living together, specifically, “I can bury you.   I can get a backhoe and take care of my problem,” things of that nature.

[D.L.K.] has testified that she needs a final restraining order she doesn't have to keep looking over her shoulder because she knows what [W.K.] is capable of.  [W.K.], on the other hand, indicates that he'll be happy to stay away from [D.L.K.]. He wants no further contact with her.   He's simply concerned about items of personal property and the dog.

The Court finds again that this is somewhat a close call.   The concern that the Court has is the level of animosity and anger that still appears to exist between these two individual.   And, based upon that in conjunction with the history between these parties and the words that have been exchanged by these parties, specifically [W.K.] toward [D.L.K.], the Court does find that a final restraining order is appropriate and will grant [D.L.K.]'s request for a final restraining order.

The present appeal ensued.

Under the Act, domestic violence occurs when an individual commits one or more predicate acts, enumerated in the Act, upon a person protected under the Act. N.J.S.A. 2C:25–19a.   Harassment, pursuant to N.J.S.A. 2C:33–4 is a predicate act under the Act. At issue in this appeal is N.J.S.A. 2C:33–4a that provides that a person commits harassment if, with the purpose to harass “[m]akes, or causes to be made, a communication or communications ․ in offensively coarse language, or any other manner likely to cause annoyance or alarm.”

Proof of a purpose to harass is an essential element of the offense.  L.D. v. W.D. 327 N.J.Super. 1, 5 (App.Div.1999).   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.’ ”  State v. Hoffman, 149 N.J. 564, 577 (1997) (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 objective 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).

Since the parties here were previously married, plaintiff is a person for whom protection against domestic violence is intended as long as she establishes the other elements of domestic violence.   See N.J.S.A. 2C:25–19 (stating that a protected person is one who has been subjected to domestic violence by a former spouse).   Our court in J.D. v. W.D.F., 207 N.J. 458, 473 (2011), reiterated that “[w]e have echoed the breadth of the Legislature's expressed intent by observing that ‘[o]ur law is particularly solicitous of victims of domestic violence.,’ State v. Hoffman, 149 N.J. 564, 584 (1997).   As we have noted, ‘there is no such thing as an act of domestic violence that is not serious.’ ” (quoting Brennan v. Orban, 145 N.J. 282, 298 (1996)).

Because restraints imposed under the Act are civil in nature, the traditional standard of proof in criminal proceedings, proof beyond a reasonable doubt, does not apply.  Id. 474.   Rather, the requisite standard of proof is the lowered standard of proof, preponderance of the evidence.  Ibid. The term, preponderance of the evidence, “means the greater weight of credible evidence in a case.”   Biunno, Weissbard & Zegas Current N.J. Rules of Evidence, comment 5(a) on N.J.R.E. 101(b) (2013).   The evidence must be such as to lead a reasonably cautious mind to a given conclusion.  Borenstein v. Metropolitan Bottling Co., 26 N.J. 263, 274–75 (1958).

Significantly, however, the commission of a predicate act does not automatically “warrant the issuance of a domestic violence order.”  Corrente v. Corrente, 281 N.J.Super. 243, 248 (App.Div.1995).   Rather, determining whether an act of domestic violence has occurred necessitating the issuance of an FRO involves 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:25–19a has occurred.”  Ibid. Second, upon a finding that a defendant has committed a predicate act of domestic violence, the court next determines whether it should “enter a restraining order that provides protection for the victim.”  Id. at 126.

Satisfying the first prong requires proof of all of the elements of one or more of the predicate offenses, which is then “evaluated in light of the previous history of violence between the parties.”  Id. at 125 (citations and internal quotation marks omitted).   However, for the 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.”   Id. at 127.   The factors which the court should consider include, but are not limited to:

(1) The previous history of domestic violence between a plaintiff and a defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the protection of the victim's safety;  and

(6) The existence of a verifiable order of protection from another jurisdiction.

[N.J.S.A. 2C:25–29a.]

Ordinarily, domestic violence is “ ‘more than an isolated aberrant non-violent act․  While a single sufficiently egregious action may constitute domestic violence even if there is no history of abuse between the parties, a court may also determine that an ambiguous incident qualifies as domestic violence based on finding previous acts of violence.’ ”  Silver, supra, 387 N.J.Super. at 123.   However, the Act is not intended to encompass “ordinary domestic contretemps.”  Corrente, supra, 281 N.J.Super. at 250.   Rather, “[t]he Act is intended to assist those who are truly the victims of domestic violence.”   Silver, supra, 387 N.J.Super. at 124.

In Silver, the defendant had committed both criminal trespass and assault –— an act of violence –— and there was “an acrimonious relationship, manifested by volatility and rage.”  Id. at 128.   Thus, we held that “the trial court should determine whether a domestic violence restraining order [was] necessary to protect [the victim] from immediate danger or further acts of domestic violence.”  Ibid. We further noted that in Silver, “the act of trespass was accompanied by an act of violence in the form of an assault.”   Id. at 127.

In the present matter defendant essentially takes issue with the factual findings of the court by contending the court failed to recognize defendant's testimony concerning plaintiff's history of violence towards him, failed to make any finding of fact regarding the credibility of the testimony concerning prior history or whether the court considered it a threat to say “maybe I will rent a backhoe and bury my problem,” or whether it was relevant that the comment was alleged to have been made three months earlier.   Defendant also contends the court totally relied upon plaintiff's testimony that there was “nothing that caused her ex-husband to come to the store,” although it was clear from the testimony from both parties that there was an ongoing dispute concerning the dog.   Additionally, defendant contends there was no testimony that plaintiff was afraid of defendant.

Silver does not make violence or a threat of violence an indispensable requirement for the issuance of a restraining order.   Notably, the predicate act of harassment does not require proof of violence on a threat of violence.   Proof is established with facts from which it may reasonably be concluded that the communication was conveyed in such a manner that it was likely to cause annoyance or alarm.   See N.J.S.A. 2C:33–4a.   Consequently, the Silver analysis requires evaluation of the previous history of abuse as to the parties, in addition to the predicate act which forms the basis of the current action.  Silver, supra, 387 N.J.Super. at 125.

In our review, we must determine whether there is satisfactory evidentiary support for the trial court's findings underpinning its legal conclusions.   N.J. Div. of Youth & family Servs. v. L.J.D., 428 N.J.Super. 451, 477 (App.Div.2012).   We defer to a trial court's factual findings “unless they are so wholly unsupportable as to result in a denial of justice.”  In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citations omitted).   Further, if “the focus of the dispute is ․ alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded.”  N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 270 (2007) (internal quotations marks and citation omitted).  “In such instances, deference is appropriately accorded to factfinding;  however, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review.”   L.J.D., supra, 428 N.J.Super. at 477 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).   Here, the Family Part judge engaged in such an analysis and found that defendant uttered obscenities to plaintiff at her place of employment with the purpose “to harass her, to cause annoyance or alarm, done out of anger,” and that he “took it upon himself to speak to [plaintiff] in such a manner that she would be caused to be annoyed or alarmed, which her testimony is that she was, in fact annoyed or alarmed.”   In addressing the second prong, the judge expressed her concern at the “level of animosity and anger that still appears to exist between these two individuals” and that in conjunction with the history of words exchanged between the parties, “specifically [defendant] toward [plaintiff], she was persuaded an FRO was necessary to protect her from future acts of domestic violence.

Mindful of our limited scope of review, we are satisfied the trial court's determination is sound.   The court's findings are supported by substantial credible evidence and the reasonable inferences that may be drawn from such evidence.  Avena, supra, 281 N.J. at 340.

At the outset, we observe that L.G., to whom the text messages were sent on August 24, testified and was subject to cross-examination.   Defendant did not, however, challenge or dispute plaintiff's testimony that L.G. told him plaintiff would not allow him to visit the dog.   Defendant in fact testified that L.G.'s response to defendant's text request to visit the dogs, told him that plaintiff said, “[n]o!  –— emphatically no.”   Thus, it was clear to defendant on August 24, plaintiff did not intend to allow him to pick up the dog for a visit.   Yet, he approached her at her job and called her a bitch three times, prompting plaintiff her to seek security.   Defendant's conduct at that time and the text he sent to L.G. immediately thereafter inferentially evinced a purpose to cause alarm and annoyance to plaintiff at her job with the hope that her job would be placed in jeopardy.   Contrary to defendant's contention otherwise, the evidence supported the court's conclusion that defendant's purpose in being at the Walmart store on August 25, was to harass plaintiff.   Likewise, the trial court's finding that there was a need to protect plaintiff from future acts of harassment is also supported by substantial credible evidence in the record.   Defendant's harassing conduct toward plaintiff, as the trial court found, was not an isolated incident.   Plaintiff testified there had been a history of prior harassing conduct on the part of defendant and at least two instances of threatening remarks had been witnessed by L.G. Although the parties had divorced, had not been living together for a number of months, defendant's harassing remarks continued.   That defendant had not followed through with his threats or that plaintiff had not lost her job does not diminish the importance of her need for protection from future conduct by defendant designed to cause her annoyance or alarm.   See Cesare v. Cesare, 154 N.J. 394, 403 (1998) (“[W]hether [the defendant] intended to carry out the threat or whether the fear of the victim was actually induced are immaterial considerations.”) (quoting State v. Butterfoss, 234 N.J.Super. 606, 612 (Law Div.1988)).   Defendant's conduct reflected more than domestic contretemps.   Rather, defendant's harassing conduct, which, apparently had heretofore been confined to the home and text messages, had now escalated to her place of employment by August 25, not only causing her annoyance and alarm but placing her in fear of losing her employment.   Thus, the record supports the trial judge's conclusion that the second prong of the Silver analysis had been established.   We are convinced the judge's findings reflect her consideration of the predicate act in light of the previous history of threats uttered by defendant to plaintiff.  Silver, supra, 387 N.J.Super. at 125.

We “should give deference to those findings of the trial judge which are substantially influenced by [her] opportunity to hear and see the witnesses and to have the ‘feel’ of the case which a reviewing court cannot enjoy.”  State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964));  Cesare, supra, 154 N.J. at 411–12.   Our review of a lower court's factual findings is limited and is guided by well-established standards.  Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.Super. 154, 155 (App.Div.1963)).  “ ‘[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.’ ”   Ibid. Deference is particularly important where, as in the present case, “ ‘the evidence is largely testimonial and involves questions of credibility.’ ”  Cesare, supra, 154 N.J. at 412, (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).   Additionally, family courts have special expertise and grave responsibilities given by the Legislature, “to ensure the safety and well-being of women and children.”  Id. at 413 (quoting Brennan v. Orban, 145 N.J. 282, 304–05, (1996)).   Finally, we are loathe to second-guess the factual findings of judges, particularly judges in the Family Part, given the Family Part's expertise in matters that involve domestic relations and the welfare of children.  Cesare, supra 154 N.J. at 411–12.



FN1. Beyond plaintiff's testimony that she and defendant were married for seven or eight years, the record is silent as to when they married or when they divorced..  FN1. Beyond plaintiff's testimony that she and defendant were married for seven or eight years, the record is silent as to when they married or when they divorced.


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