C.R.C. VS. F.J.C. (FV-08-0274-21, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0248-20
C.R.C., 1
Plaintiff-Respondent,
v.
F.J.C.,
Defendant-Appellant.
_______________________
Submitted May 12, 2021 – Decided June 28, 2021
Before Judges Alvarez and Sumners.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FV-08-0274-21.
John C. Iannelli, attorney for appellant.
C.R.C., respondent pro se.
PER CURIAM
1
We use initials to protect the confidentiality of the participants in these
proceedings. R. 1:38-3(d).
Defendant appeals from a final restraining order (FRO) entered in favor
of plaintiff, his estranged wife, pursuant to the Prevention of Domestic Violence
Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant argues plaintiff failed to
present sufficient proof to warrant a finding that his conduct constituted
harassment within the meaning of N.J.S.A. 2C:33-4. We agree and reverse.
In a domestic violence case, we accord substantial deference to the family
court's findings, which "are binding on appeal when supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)
(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). We
accord that deference especially when much of the evidence is testimonial and
implicates credibility determinations. Id. at 412. We do not disturb the court's
factual findings and legal conclusions, 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. (quoting
Rova Farms, 65 N.J. at 484).
When determining whether to grant an FRO pursuant to the PDVA, the
trial court must make two determinations. Silver v. Silver, 387 N.J. Super. 112,
125-27 (App. Div. 2006). Initially, we address whether the first Silver prong
was satisfied, which is "whether the plaintiff has proven, by a preponderance of
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the credible evidence, that one or more of the predicate acts set forth in N.J.S.A.
2C:25-19(a) has occurred." Id. at 125.
At trial, conducted via Zoom due to COVID-19, plaintiff alleged that the
predicate act of harassment occurred. Harassment is defined in N.J.S.A. 2C:33-
4, which provides in relevant part, that
[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;
....
c. Engages in any other course of alarming conduct
or of repeatedly committed acts with purpose to alarm
or seriously annoy such other person.
Plaintiff testified that amid the separation from defendant she found a
letter from him on her car windshield. She felt the letter "alarming," because it
stated that: (1) when she attempted to get additional custody time with her
daughter from her divorced husband, a different court acknowledged that she
and defendant had a two-year stable marriage; (2) if they did not divorce, they
could save legal fees and have money for her daughter's college expenses; and
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(3) "neither one of us [will] win – I swear [] I would give my life just to have
you, and the opposite to lose you."
Plaintiff maintained defendant violated the court's verbal order four days
prior to receipt of the letter, directing defendant to have "no contact" with her
or go to the marital property where only she and her daughter were living. The
court, however, acknowledged that no written domestic violence restraining
order was entered, stating that defendant was not to contact plaintiff although it
"made . . . clear to [defendant] that he shouldn't have any . . . contact with
plaintiff."
Plaintiff testified that on another day, she came home to find the cable
television and internet service to her home, which was in defendant's name,
terminated by him without notification. In addition, she claimed a vehicle that
her mother bought from defendant but remained titled in his name was removed
from her home by defendant because he was the only person who had a key to
the vehicle.
After plaintiff testified and defendant choose not to testify, the court
issued an FRO. In its oral decision, the court stated:
[Plaintiff's] testimony sounds like harassment.
I note for the record that . . . this [c]ourt extended
itself the last time this matter was heard in an attempt
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to try to resolve the situation without the necessity of
going to the extreme of a [d]omestic [v]iolence
[r]estraining [o]rder.
I . . . thought I had made it clear to [defendant]
that he was not to go back. . . . And I thought I had
made it clear to him that he was to have no contact with
[plaintiff].
Now, her testimony obviously does not relate
back to the original TRO and I . . . thought I had made
it clear to [defendant] that he shouldn't have any . . .
contact.
....
[W]ith respect to harassment[,] I'm . . . satisfied taking
. . . in total, the . . . contact and the effect of the letter,
the removal of the vehicle[,] [t]he turning off of the
. . . [i]nternet without any notice.
....
The . . . bottom line is [plaintiff] doesn't want to
have any contact. She didn't want to be bothered by
him anymore. She was nervous out in the matrimonial
arena.
....
Now, when we talk in terms of . . . characterizing
the relationship, I'm more than satisfied that if you
characterize the relationship, well, there was only
[d]omestic [v]iolence [r]estraining [o]rder filed early.
He's simply not going to give it up. In my mind that's
. . . harassment.
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On this record, we conclude that there was insufficient evidence that
plaintiff was harassed because defendant acted with a purpose to harass that
included "a communication . . . likely to cause annoyance or alarm" or " alarming
conduct . . . with purpose to alarm or seriously annoy." N.J.S.A. 2C:33-4(a),
(c). 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. 2006) (quoting Webster's II New College
Dictionary 504 (1995)). Our Supreme Court has emphasized the care that a trial
court must exercise to distinguish between the ordinary disputes and
disagreements between persons in a past or current domestic relationship, and
those acts that cross the line into domestic violence. J.D. v. M.D.F., 207 N.J.
458, 475-76 (2011). A plaintiff's assertion of feeling harassed is not sufficient
to prove purpose to harass. Id. at 484. As the Court held, a "victim's subjective
reaction alone will not suffice; there must be evidence of the improper purpose."
Id. at 487.
In J.D., the Court reversed entry of a restraining order where the trial court
had failed to find a purpose to harass. Id. at 488. The defendant passed by
plaintiff's home in the early morning hours to document her cohabitation with
another man, which the defendant intended to use to secure custody of the
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parties' children. Id. at 467-69. Similarly, in L.M.F. v. J.A.F, Jr., 421 N.J.
Super. 523, 525, 530-31, 533 (App. Div. 2011), we reversed a finding of
harassment where the trial court failed to find that a defendant had the purpose
to harass, although he repeatedly sent text messages to his former wife to obtain
information about their daughter's academic performance.
In its oral decision, the court stated plaintiff's testimony "sounds like
harassment," but failed to make a finding of a purpose to harass. Reviewing
defendant's letter, we are persuaded that his sole attempt was to seek
reconciliation by stressing his stable relationship with and commitment to
plaintiff. Defendant did not threaten plaintiff or her daughter. His termination
of the cable and internet service and his apparent taking of the vehicle falls
within the scope of "ordinary domestic contretemps." See J.D., 207 N.J. at 475(quoting Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995)
(stating that a court must "[d]raw[] the line between acts that constitute
harassment for purposes of issuing a domestic violence restraining order and
those that fall instead into the category of 'ordinary domestic contretemps[]'"));
see also Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995) (finding
that regardless of defendant's purpose, the statement "I'll bury you ," standing
alone, "would not have satisfied the definition of harassment . . . unless it was
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manifested by a course or repeated acts of alarming conduct"). Cancellation of
the cable and internet service cancellation is similar to the situation in Corrente,
where the defendant first called the plaintiff's job and threatened "drastic
measures" if she did not send him money for bills, and then disconnected her
home phone line. 281 N.J. Super. at 246-47, 250. We concluded that although
plaintiff felt "alarmed" by defendant's behavior, there was not an intent to harass
nor could his behavior "be characterized as alarming or seriously annoying." Id.
at 249.
With respect to the court's verbal order made at a proceeding prior to the
issuance of a temporary restraining order that defendant was to have no contact
with plaintiff, there is nothing in the record indicating what the court meant.
Therefore, we cannot conclude it was proven that defendant's his conduct
violated a court order and was evidence of harassment.
Because we are convinced that there was insufficient credible evidence to
support a finding of a predicate act of domestic violence, we need not address
the second Silver prong, which requires the court to engage in the separate
inquiry regarding the need for restraints to prevent further abuse. See Silver,
387 N.J. Super. at 126-27. Yet, assuming the court's findings were sufficient to
establish the harassment, its findings as to the need for restraints is insufficient.
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It is well established that the commission of one of the predicate acts of
domestic violence does not, on its own, "automatically . . . warrant the issuance
of a domestic violence [restraining] order." Corrente, 281 N.J. Super. at 248.
Although that determination "is most often perfunctory and self-evident, the
guiding standard is whether a restraining order is necessary, upon an evaluation
of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the
victim from an immediate danger or to prevent further abuse." Silver, 387 N.J.
Super. at 127.
Plaintiff did not testify that she feared defendant, felt in danger of
immediate harm, or anything to that effect. The court's mere statement that
defendant's "not going to give it up," which could refer to defendant's desire to
reconcile with plaintiff, fails to establish plaintiff needed a restraining order to
curtail harassing behavior.
Reversed and remanded. We do not retain jurisdiction.
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