S.B. VS. L.M. (FV-12-0676-17, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-1975-16T2
S.B.,
Plaintiff-Respondent,
v.
L.M.,
Defendant-Appellant.
_____________________________
Argued April 30, 2018 – Decided August 15, 2018
Before Judges O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FV-12-0676-17.
Rajeh A. Saadeh argued the cause for
appellant (The Law Office of Rajeh A.
Saadeh, LLC, attorneys; Rajeh A. Saadeh and
Amanda E. Rasheed, on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant L.M. appeals from a December 2, 2016 final
domestic violence restraining order (FRO) entered in favor of
plaintiff S.B. pursuant to the Prevention of Domestic Violence
Act (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse.
I
Plaintiff filed a domestic violence complaint under the
PDVA alleging defendant committed an act of domestic violence by
harassing him in violation of N.J.S.A. 2C:33-4.1 In his
complaint, plaintiff failed to identify the subsection or
subsections of N.J.S.A. 2C:33-4 defendant allegedly violated,
but by the time of the final hearing, clarified he was alleging
defendant violated subsections (a) and (c) of this statute.
Defendant also filed a domestic violence complaint against
plaintiff, alleging he harassed her in violation of N.J.S.A.
2C:33-4. Both complaints were adjudicated during the final
hearing. Both parties prevailed on their respective complaints
and obtained an FRO against the other, and each had an FRO
entered against them. Unlike defendant, plaintiff does not
appeal from the FRO entered against him.
The evidence adduced during the final hearing relevant to
the issues on appeal is as follows. The parties, divorced in
2005, are the parents of two teenage boys. At the time of the
subject incident, plaintiff was the primary caretaker and
1
Plaintiff also contended defendant violated the PDVA by
stalking him in violation of N.J.S.A. 2C:12-10, but the court
dismissed this claim at the conclusion of the final hearing on
the ground of insufficient evidence. Plaintiff did not appeal
from the dismissal of this claim.
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defendant had parenting time every other weekend. We first
recite defendant's version of events.
At 4:30 p.m. on September 23, 2016, defendant was at home
waiting for plaintiff to drop off the boys for her parenting
time, when a caseworker from the Division of Child Protection
and Permanency (the Division) appeared at her door stating she
wanted to speak to the boys and inspect defendant's home.
Uncertain she was obligated to accede to the caseworker's
request and suspicious plaintiff made a false allegation against
her, defendant asked the caseworker to remain outside on the
porch while she telephoned her attorney for advice.
Minutes later, plaintiff pulled up in his truck and parked
outside of defendant's home. The boys and plaintiff's mother
were also in the truck. Defendant observed the caseworker
approach plaintiff and assumed the caseworker was going to start
her investigation by questioning plaintiff and do so in the
children's presence. Anxious that the caseworker not speak to
plaintiff in front of the boys because "they don't need to hear
anything negative or derogatory about their mother," defendant
went to the truck and told the boys to get out of it and go into
her house. Plaintiff told the boys to remain and they obeyed.
While plaintiff and the boys were still in the truck, the
caseworker asked plaintiff if he had any "cares or concerns."
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Plaintiff stated defendant was an alcoholic, used cocaine, had
sex in front of the boys, and was a "deadbeat." Defendant
testified she "got really upset because this [investigation] was
going on in front of my children. So I had asked him to please
let them out." She claims she did not attempt to physically
remove the boys from the truck.
Because it was not yet 5:00 p.m., when her parenting time
was to start, plaintiff refused to let the children out of the
truck. According to defendant, she was "mortified. . . . [I
was] tired of these false allegations. . . . They're defaming
and it's slander and it's wrong. I felt attacked." Plaintiff
then got out of the truck and, just "nose distance" from her,
called her a drunk and a deadbeat. Plaintiff's mother also
called plaintiff a "whore." Defendant then retreated to her
porch and called her attorney.
On cross-examination, defendant admitted she called
plaintiff a liar during the encounter, but denied calling him
other names or swearing at him. She also denied touching or
putting her hands inside of the truck.
According to plaintiff's testimony, the caseworker
approached him in his truck and advised she received a telephone
call from the staff of one of the boys' schools, and learned one
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of the boys had made an allegation.2 Because the caseworker
needed to follow-up on the allegation, plaintiff gave her
permission to speak to the boys.
Plaintiff claimed defendant then opened the door to the
back seat, where the boys were seated, and tried to pull them
out of the truck, but they slid over to the opposite side of the
vehicle. While defendant was trying to pull them out, she told
the caseworker "I'm not giving you any fucking permission to
talk to my kids," and to "get away from the fucking car."
Plaintiff claims defendant went to the other side of the
truck and tried to talk to the boys. She was also "screaming
and yelling" and, at one point, put her hand into the area of
the front passenger seat, where his mother was seated, and
attempted to "swing" at his mother. Plaintiff then got out of
the truck and ran to the other side of the vehicle, stood
between defendant and his mother, and told defendant to back
away. He claims defendant was "cursing" at and "abusive" toward
him, but he did not clarify what she said or how she was
abusive.
Plaintiff admitted he cursed one time at defendant, and
called her a "deadbeat mother" and a drunk. He conceded the
2
The nature of the allegation was not revealed during the
hearing.
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boys are physically larger than defendant and thus she was not
strong enough to pull them out of the car.
The caseworker testified defendant was very upset and angry
because the caseworker appeared at defendant's home unannounced,
and defendant indicated to the caseworker she believed plaintiff
had called the Division to send the caseworker over. After
defendant spoke to her attorney, she told the caseworker she was
not going to cooperate with the investigation.
The caseworker walked over to the truck and told plaintiff
she needed to talk to the children, but it became too difficult
to continue speaking with plaintiff because defendant was
yelling and cursing at plaintiff. The caseworker did not
identify the words defendant used. Defendant did state she did
not want the children interviewed during her parenting time, and
told the children not to communicate with the caseworker and to
go into the house. Plaintiff pointed out to the caseworker that
defendant's parenting time did not start for another ten
minutes, and authorized her to speak to the boys.
The caseworker also testified that, at one point, plaintiff
got out of the truck and approached defendant. The parties then
yelled and cursed at each other; the caseworker did not specify
the words the parties used during this exchange.
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At the conclusion of the hearing, the court found each
party harassed the other during the subject incident in
violation of the PDVA, and entered a FRO against both. As
noted, defendant challenges the FRO against her but plaintiff
did not appeal from the FRO entered against him.
The court did not find credible plaintiff's claim defendant
tried to remove the boys from the truck. As for her other
conduct, the court found defendant violated N.J.S.A. 2C:33-4(a)
because she "flew into rage" and
what ended up happening was a confrontation
occurred where each side harassed the other
by yelling at each other, screaming at each
other. . . .
So, I find by defendant yelling at
[plaintiff], yelling at [plaintiff's]
mother, yelling at the kids, . . . it
escalated the harassment. . . . I make that
finding that it did and that [defendant],
ironically, became a harasser herself . . .
by not being calm and not – just riding out
the situation, letting the police handle the
situation. She escalated the situation
. . . .
She escalated the situation and, as a
result, harassed [plaintiff]. How did she
harass him? By making communications, using
offensive language, by trying – by causing
annoyance and alarm, by screaming at him and
his mother. . . .
The court further found defendant harassed plaintiff by
violating N.J.S.A. 2C:33-4(c), but merely stated:
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Section C, engages in a course of alarming
conduct with the purpose to seriously annoy.
Absolutely. I find – I make a finding that
she did that. She did that to annoy
[plaintiff] knowing full well that her
actions were going to annoy him. . . .
The court determined that not only did plaintiff prove defendant
violated subsections (a) and (c) of N.J.S.A. 2C:33-4, but also
required a restraining order to protect him from further
harassment from defendant.
II
On appeal, defendant's principal argument is the court
erred when it found defendant engaged in an act of harassment
during the subject incident, in violation of N.J.S.A. 2C:33-4(a)
and (c). In relevant part, this statute states:
[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 . . .
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.
[N.J.S.A. 2C:33-4.]
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We are bound by the trial court's findings "when supported
by adequate, substantial, credible evidence." Cesare v. Cesare,
154 N.J. 394, 412 (1998). However, 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,
LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
When determining whether to grant an FRO pursuant to the
PDVA, 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. v. M.D.F., 207 N.J.
458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)).
N.J.S.A. 2C:33-4 is one of the predicate offenses under the
PDVA. N.J.S.A. 2C:25-19(a)(13). Proof of a purpose to harass
is an essential element to support a finding under N.J.S.A.
2C:33-4(a) and (c) and the entry of an FRO. See L.D. v. W.D.,
327 N.J. Super. 1, 5 (App. Div. 1999) (quoting State v. Hoffman,
149 N.J. 564, 576 (1997)). A court must find the defendant had
a "conscious objective" to harass the plaintiff. State v.
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Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989). Unless stated
with a purpose to alarm or seriously annoy, offensive speech
alone is not domestic violence. E.M.B. v. R.F.B., 419 N.J.
Super. 177, 182-83 (App. Div. 2011). The effect of the speech
upon the victim is irrelevant. 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) (quoting Hoffman, 149 N.J. at 577).
Applying these principles, we are satisfied the court erred
when it determined the predicate act of harassment was found
under either subsection (a) or (c). According to plaintiff,
defendant screamed, yelled, and cursed at him, but he did not
testify to what defendant actually stated. He also claimed
defendant was abusive, but did not clarify what she did.
Plaintiff did testify that defendant told the caseworker
she was not going to give her "any fucking permission" to talk
to the boys and to "get away from the fucking car," but such
comment was not made to plaintiff. Plaintiff noted defendant
reached into his truck and took a "swing" at his mother, but
such conduct was not directed at him, and his claim defendant
tried to pull the children out of his truck was not found to be
credible and, in any event, was not an act made against him.
The caseworker testified both parties yelled and cursed at each
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other, but she did not specify the words defendant used or
provide any other details about their argument.
In our view, there is no evidence defendant engaged in
conduct with a purpose to harass plaintiff. At worst, defendant
yelled, screamed, and cursed at plaintiff – while plaintiff did
the same to defendant. It is impossible to evaluate defendant's
speech and conduct by words neither detailed nor described.
Without knowing the specific words defendant used and the
context in which she used those words when yelling and
cursing, it cannot be ascertained if those words were uttered
with the purpose to harass plaintiff.
It is uncontroverted defendant was angry because she
believed plaintiff had instigated the Division's investigation
and was distraught over the prospect the children would be
interviewed by the caseworker. But the fact she was angry is
beside the point. Feeling anger or being angry is not
harassment. Expressing anger is also not harassment, unless the
manner in which a defendant expresses anger is done with a
purpose to harass the plaintiff. There is no evidence defendant
did that here. Absent evidence defendant acted with a purpose
to harass, plaintiff failed to show defendant violated N.J.S.A.
2C:33-4(a) and (c).
Reversed.
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