L.B. VS. R.B. (FV-14-0096-19, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-0619-18T1
L.B.,
Plaintiff-Respondent,
v.
R.B.,
Defendant-Appellant.
___________________________
Submitted June 6, 2019 – Decided June 17, 2019
Before Judges Simonelli and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FV-14-0096-19.
The Tormey Law Firm LLC, attorneys for appellant
(Brent Di Marco, of counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant R.B. appeals from the August 7, 2018 final restraining order
(FRO) entered against him pursuant to the Prevention of Domestic Violence Act
of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A.
2C:33-4(a) and (b). We reverse and remand for the trial court to vacate the FRO.
Plaintiff is defendant's father. Defendant resided in his parents' home. 1
Several conflicts ensued between defendant and his parents' stemming from the
parents' expectation that defendant abide by the rules of the home and defendant
coming home late, sometimes intoxicated, or not coming home at all. Plaintiff
alleged defendant pushed him and defendant's mother, was verbally
inappropriate, and punched holes in the walls.
Plaintiff testified defendant made threats "constantly." When asked to
specify the threats, plaintiff testified as follows:
[PLAINTIFF]: My mother has a property in Boonton
Township . . . and my mom passed last year . . . and the
property is mine right now. And she still has a cat
living at home, and we take care of her cat by feeding
it. And [defendant], we were going around to animal
shelters, what to do about the cat [who] is [fourteen]
years old.
....
And they told us, the cat is old, we should put it
down. [Defendant] asked me and my wife what do you
mean put her down? I have a gun. I can shoot the cat.
THE COURT: Was there some discussion of that
residence being burned down in some –
1
Defendant's mother is not a plaintiff.
A-0619-18T1
2
[PLAINTIFF]: Yes, he discussed it
....
He said either knock [the house] down or burn it
down, because that house has no value. It's useless.
There is no one there.
THE COURT: Now, that was part of your complaint.
I take it you thought it was not an appropriate reference
to, to burn down the house?
[PLAINTIFF]: Yes. And then there is threatening and
everything. He make[s] threats constantly.
THE COURT: I know your complaint references that.
Can you tell me what sort of threats have been said?
[PLAINTIFF]: Well, my wife, who is from New York,
she is an M.D. by profession, an OB/GYN and our son
simply says, oh, you are not practicing medicine here.
What's the use? You're nothing.
....
And the same with me, my profession. My
profession is, I'm involved in fine fragrances and
perfumery, and I have been out of work for some time
now and I'm still looking for work, and he's asking why
are you so long out of work? What are you doing at
home?
[(Emphasis added).]
Plaintiff also testified he was concerned about the safety and well-being
of members of the household:
A-0619-18T1
3
Because we don't know when [defendant] will come
home and he not only goes to his friend's to get drunk,
but he goes over to a local bar restaurant . . . and we are
not sure if he will get pulled over for [driving while
intoxicated] or any other infraction. That's why we are
scared what could happen to him, and what could he do
to others. That's why. The health and safety is a matter
of our concerns, Your Honor.
Plaintiff also described an incident between defendant and his mother where
defendant closed a door on her right hand, causing an injury. Plaintiff provided
no testimony that any of defendant's acts were intentional.
Defendant testified that the conflict with his parents stemmed from their
berating him and disapproval of the girl defendant was dating. Defendant
claimed he rejected his parents' ultimatum to stop dating the girl if he wanted to
continue living in their home. He testified he closed the door on his mother's
hand by accident and did not intend for that to happen or to hurt her. He also
denied intentionally punching holes in the wall or saying he wanted to burn
down his grandmother's house.
In his oral opinion, the trial judge noted the complaint was brought under
the harassment statute and mentioned only the elements of N.J.S.A. 2C:33-4(a)
and (b). N.J.S.A. 2C:33-4 provides, in pertinent part, that a person is guilty of
harassment
if, with purpose to harass another, he:
A-0619-18T1
4
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]
b. Subjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so[.]
The judge said the elements of subsection (a) and (b) were satisfied based on
plaintiff's testimony, but made no specific factual findings and no finding of a
purpose to harass. The judge also made no finding that a FRO was necessary to
protect plaintiff from an immediate danger or to prevent further abuse. The
judge merely found there was a "risk of future high conflict."
Our review of a trial court's decision to enter a FRO in a domestic violence
matter is limited. Peterson v. Peterson, 374 N.J. Super. 116, 121 (App. Div.
2005). "A reviewing court is bound by the trial court's findings 'when supported
by adequate, substantial, credible evidence.'" Ibid. (quoting Cesare v. Cesare,
154 N.J. 394, 412 (1998)). "This deferential standard is even more appropriate
'when the evidence is largely testimonial and involves questions of credibility.'"
L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011) (quoting In re
Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "Reversal is warranted
only when a mistake must have been made because the trial court's factual
findings are 'so manifestly unsupported by or inconsistent with the competent,
A-0619-18T1
5
relevant and reasonably credible evidence as to offend the interests of justice[.]'"
Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Rova Farms
Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, we
review de novo "the trial judge's legal conclusions, and the application of those
conclusions to the facts[.]" Ibid. (quoting Reese v. Weis, 430 N.J. Super. 552,
568 (App. Div. 2013)).
In adjudicating a domestic violence case, the trial judge has a "two-fold"
task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). The judge
must first determine whether the plaintiff has proven, by a preponderance of the
evidence, that the defendant committed one of the predicate acts referenced in
N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A. 2C:33-4, as
conduct constituting domestic violence. Id. at 125-26. The judge must construe
any such acts in light of the parties' history to better "understand the totality of
the circumstances of the relationship and to fully evaluate the reasonableness of
the victim's continued fear of the perpetrator." Kanaszka v. Kunen, 313 N.J.
Super. 600, 607 (App. Div. 1998); see N.J.S.A. 2C:25-29(a)(1).
A finding of harassment requires proof that the defendant acted "with
purpose to harass." N.J.S.A. 2C:33-4; see Silver, 387 N.J. Super. at 124.
Although a purpose to harass may, in some cases, be "inferred from the
A-0619-18T1
6
evidence," and may be informed by "[c]ommon sense and experience[,]" a
finding by the court that the defendant acted with a purpose or intent to harass
another is integral to a determination of harassment. State v. Hoffman, 149 N.J.
564, 577 (1997). We note that purposeful conduct "is the highest form of mens
rea contained in our penal code, and the most difficult to establish." State v.
Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). Its establishment requires
proof, in a case such as this, that it was the actor's "conscious object to engage
in conduct of that nature or to cause [the intended] result." N.J.S.A. 2C:2-
2(b)(1). A plaintiff's assertion that the conduct is harassing is not sufficient.
J.D. v. M.D.F., 207 N.J. 458, 484 (2011). Further, a "victim's subjective reaction
alone will not suffice; there must be evidence of the improper purpose." Id. at
487.
When deciding the issues of intent and effect, we are mindful of the fact
that
harassment is the predicate offense that presents the
greatest challenges to our courts as they strive to apply
the underlying criminal statute that defines the offense
to the realm of domestic discord. Drawing 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" presents our courts with a weighty
responsibility and confounds our ability to fix clear
rules of application.
A-0619-18T1
7
[Id. at 475 (citation omitted).]
"[T]he decision about whether a particular series of events rises to the level of
harassment or not is fact-sensitive." Id. at 484.
If a predicate offense is proven, the judge must then assess "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 (6)], to protect the victim from an immediate danger
or to prevent further abuse." Id. at 475-76 (quoting Silver, 387 N.J. Super. at
126-27). The factors which the court should consider include, but are not limited
to:
(1) The previous history of domestic violence
between the plaintiff and 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:25-29(a).]
A-0619-18T1
8
Although the court is not required to incorporate all of these factors in its
findings, "the [PDVA] does require that 'acts claimed by a plaintiff to be
domestic violence . . . be evaluated in light of the previous history of violence
between the parties.'" Cesare, 154 N.J. at 401-02 (quoting Peranio v. Peranio,
280 N.J. Super. 47, 54 (App. Div. 1995)). Whether a restraining order should
be issued depends on the seriousness of the predicate offense, on "the previous
history of domestic violence between the plaintiff and defendant including
previous threats, harassment[,] and physical abuse[,]" and on "whether
immediate danger to the person or property is present." Corrente v. Corrente,
281 N.J. Super. 243, 248 (App. Div. 1995).
The court must exercise care "to distinguish between ordinary disputes
and disagreements between family members and those acts that cross the line
into domestic violence." R.G. v. R.G., 449 N.J. Super. 208, 225 (App. Div.
2017). The PDVA is not intended to encompass "ordinary domestic
contretemps[.]" Corrente, 281 N.J. Super. at 250. Rather, "[t]he [PDVA] is
intended to assist those who are truly the victims of domestic violence." Silver,
387 N.J. Super. at 124 (quoting Kamen v. Egan, 322 N.J. Super. 222, 229 (App.
Div. 1999)).
A-0619-18T1
9
Here, the judge made no finding that defendant acted with the requisite
purpose to harass, and such a finding cannot be inferred from the evidence.
Plaintiff presented no evidence that defendant acted with a purpose to harass.
Accordingly, in the absence of this "integral" finding of a purpose to harass,
Corrente, 281 N.J. Super. at 249, the judge's determination that defendant
committed the predicate act of harassment cannot stand and the FRO must be
reversed and vacated. See Pressler & Verniero, Current N.J. Court Rules, cmt.
5.2 on R. 5:7A (2019) ("A final restraining order cannot be sustained when a
court fails to articulate the applicable subsection of the harassment statute and
to provide the legal and factual basis for finding a purpose to harass.").
The FRO must also be reversed because the judge did not find that
restraints were necessary "to protect the victim from an immediate danger or to
prevent further abuse." Silver, 387 N.J. Super. at 127. As the court explained
in Silver, the finding of a predicate act satisfies only the first step in a two-step
process. Id. at 126-27. Because "the Legislature did not intend that the
commission of one of the enumerated predicate acts of domestic violence
automatically mandates the entry of a domestic violence restraining order,"
plaintiff was obligated to prove and the judge was required to find that restraints
A-0619-18T1
10
were necessary to "protect the victim from an immediate danger or to prevent
further abuse." Id. at 126-27.
Plaintiff provided no such proof and the judge made no such finding.
Although the judge noted there was "a risk of high conflict," he engaged in no
principled analysis of why he found that to be the case and made no evaluation
of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to (6). Absent an expressed
holding, or other findings from which we might discern such an implicit
determination, we must conclude that plaintiff failed to prove the need for an
FRO even if the proofs permitted a finding that defendant committed the
predicate act of harassment.
Reversed and remanded to the trial court to vacate the FRO.
A-0619-18T1
11