J.A.C. VS. C.A.C. (FV-12-0317-17, 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NOT FOR PUBLICATION WITHOUT THE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-1090-16T3
J.A.C.,
Plaintiff-Respondent,
v.
C.A.C.,1
Defendant-Appellant.
____________________________
Submitted January 10, 2018 – Decided March 4, 2019
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-0317-17.
The Tormey Law Firm, LLC, attorneys for appellant
(Thomas Ercolano, III, on the brief).
J.A.C., respondent pro se.
1
We use initials to identify the parties to protect their privacy. R. 1:38-
3(d)(9).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
This appeal concerns the validity of a Final Restraining Order (FRO)
issued by the Family Part under the Prevention of Domestic Violence Act,
(PDVA), N.J.S.A. 2C:25-17 to -35, against defendant C.A.C., plaintiff J.A.C.'s
former husband. The parties resided in California while married and had two
children, a girl age fifteen years old and a boy who is now eleven years old.
They divorced in 2010. Plaintiff thereafter relocated to New Jersey with the
children. Defendant remained in California, remarried, and has a three-year-old
daughter with his current wife.
The incident that gave rise to plaintiff seeking relief under the PDVA
occurred on August 9, 2016, when the parties' then nine-year-old son was
vacationing with his father in California pursuant to the parenting time schedule
approved by the court as part of the final judgment of divorce. The parties began
exchanging text messages about their son on August 9, 2016 at approximately
10:00 p.m., Eastern Standard Time. Plaintiff testified she told defendant to stop
texting her at 11:00 p.m., which was eight o'clock in the evening in California.
Although defendant did not heed this time restriction, the judge found plaintiff
did not become aware of these text messages from defendant until eleven o'clock
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the next morning. Furthermore, without making any findings as to the content
of defendant's text messages, the judge concluded defendant harassed plaintiff
under N.J.S.A. 2C:33-4, by "continuing to [send] those messages . . . because
the only purpose that could be deemed to have occurred was with the purpose to
harass. There was no longer a[n] . . . ongoing discussion about the child, but
rather back and forth between . . . the parties."
Based on the evidence presented at the FRO hearing and mindful of our
standard of review, we reverse.
I
The PDVA complaint plaintiff filed on August 10, 2016, that formed the
basis for the issuance of a temporary restraining order against defendant,
described the predicate act of domestic violence as follows:
The plaintiff states the defendant harassed her by
sending her an excessive number of text messages[.]
The plaintiff wanted to know where her son was, as he
is currently visiting the defendant in California. The
plaintiff asked him to stop texting her at 11:17 pm and
he sent 7 more text messages after that until about 2
am EST. The defendant stated on one of the text
messages he will contact the plaintiff's place of
employment and place a complaint. The plaintiff took
that statement as a threat. The plaintiff is afraid of the
defendant.
A-1090-16T3
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Plaintiff appeared at the FRO hearing pro se. Defendant was represented
by private counsel. Before hearing her testimony, the judge addressed plaintiff
directly and explained to her that she would be the first person to testify and to
"tell me the reasons why a final restraining order should be issued. After you
finish testifying, the defendant's attorney will have an opportunity to ask you
questions regarding your testimony."
In lieu of asking plaintiff questions based on the allegations she made in
her domestic violence complaint, the judge allowed plaintiff to testify in a
narrative style. Defendant's counsel did not object. The judge thus simply asked
plaintiff: "Tell me what happened." In response, plaintiff engaged in a stream
of consciousness, uninterrupted account of her tumultuous relationship with
defendant that covered nine transcription pages. In the course of this
freewheeling testimony, plaintiff mentioned defendant's text message allegedly
threatening her job only once. She provided the following account of its content:
And . . . he continued to text [me] til like 2:00 in the
morning when I'm asleep. And then the worst part is
the whole texting was that he threatened to call my
employer to tell me that they should check into my
internet usage because I stalk him. Whichever - -
whatever that means I don't know.
I don't know what I could be stalking or what internet
usage he could be, you know, monitoring. So, it just -
- the years of the - - harassing comments [.]
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Plaintiff did not produce a printed copy of this text message or any of the other
text messages defendant allegedly sent her in the early morning hours of August
10, 2016. Plaintiff acknowledged, however, that the text messages did not wake
her up because she had her cellphone on "vibrate."
On cross-examination by defense counsel, plaintiff testified that earlier on
August 9, 2016, she called defendant in California to talk to her son, who was
then on vacation with his father. Plaintiff conceded that defendant told her the
boy was asleep because he was tired from swimming. However, when counsel
asked her if defendant told her that the boy would call her back when he woke
up, plaintiff stated: "I don't know if that was the case. So I can't say yes or no."
After a brief contentious exchange with defense counsel about whether the child
awoke by himself or was awoken by defendant, plaintiff conceded the boy was
able to speak to her on the phone. This prompted the following testimony:
Q. And you spoke with him?
A. Correct.
....
Q. He has just woke up, correct?
A. Yeah.
Q. But, then you believed that perhaps he was drugged
and you called the police?
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A. That is not why, no.
Q. You called the police - -
A. That was way - -
Q. - - after you spoke with him?
A. - - prior to that. That was when he refused to tell
me where my son was. And I'm 2,500 miles away.
And any mother should be concerned when their
exhusband who has their child. Their ten year old,
refuses to share such vital information.
....
. . . [H]e finally told me after the police had been
called.
Q. But, he did tell you eventually where he had been.
A. At 10:47 p.m., correct. 2
Plaintiff also conceded that "about a week later" the child sent her a photograph
showing defendant had taken him to "Medieval Times" as a belated birthday
celebration because defendant did not have parenting-time during his son's
actual birthdate. Plaintiff also called her mother as a witness. However, her
testimony was not relevant to the allegations plaintiff identified as predicate acts
of harassment by defendant in the PDVA complaint.
2
This was Eastern Standard Time. Thus, it was 7:47 p.m. in California.
A-1090-16T3
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Defendant testified in his own defense. Directing his client's attention to
plaintiff's testimony alleging that he told her he was going to contact her
employer, Rutgers University, defense counsel asked defendant: "Why did you
say that?" Defendant explained that as a real estate agent, he had set up a website
to advertise his services. One of the features of the website allows him to
monitor his internet traffic or "visitor stats." This also allows him to determine
what pages of the website generate more visitors and how much time each visitor
spends on each page. This information enables him to adjust the webpages to
target the visitors' interests and "gain more business."
Defendant also explained that this feature also allowed him to see the
visitors' "server name or IP address." Through this process, defendant testified
he noticed a particular server name or IP address "repeatedly checking" his
website. Defendant testified that an IP address from Rutgers checked his
website ninety-four times. When defense counsel completed defendant's direct
testimony, the judge asked plaintiff if she had any questions of the witness.
Plaintiff asked the following question:
[W]hy is [defendant bringing up] . . . an incident that
happened in May of 2011? What pertinence does that
have on the current situation that he should threaten to
call my employer and potentially get me fired from
my job? I have the proof. I can actually show you.
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THE COURT: What's your question?
PLAINTIFF: Why - - is he bringing in something from
2011 and making it pertin - -
THE COURT: What's - - what's 2011?
PLAINTIFF: That's when this - - this apparent
situation happened.
....
THE COURT: [Addressing defendant] Okay. The
month that you're talking about was that recently or
was that in 2011?
DEFENDANT: It was in 2011, Your Honor.
THE COURT: Okay. Next question.
PLAINTIFF: That's all I have to say.
In his summation, defense counsel argued plaintiff did not prove, by a
preponderance of the evidence, that defendant sent the seven text messages with
an intent to harass. Counsel claimed the record reflects "[t]here was a back and
forth conversation via text message." The seven text messages that formed the
basis for the harassment charge "were sent as part of that whole conversation."
Counsel also argued plaintiff did not prove defendant sent these seven texts
"deliberately to wake the plaintiff up." According to defense counsel, the record
merely reflected the parties were "unfortunately . . . part of [a] contentious
A-1090-16T3
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divorce, engaged . . . [in] not . . . the most admirable conduct . . . [.] But it
certainly does not rise to a level of harassment under the criminal code." Fin ally,
even assuming defendant's seven text messages constituted harassment, defense
counsel argued there was no basis to find a restraining order is warranted to
protect plaintiff from further abuse by defendant under the second prong in
Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006).
Against this backdrop, the judge made the following findings in support
of his decision to issue an FRO against defendant:
The defendant continued to send another series of text
messages totaling seven between 11:00 o'clock in the
evening on August 9 th, until approximately 2:00
o'clock in the morning on August 10 th.
The plaintiff testified candidly that - - that she did not
want to carry on the conversation via text. She also
indicated that she was annoyed and alarmed by those
continuing text messages being received by the - - by
the defendant.
So, I do find that the - - his continuing to make those
messages was in fact an act of harassment because the
only purpose that could be deemed to have occurred
was with the purpose to harass. There was no longer a
- - a discussion - - ongoing discussion about the child,
but rather, back and forth between - - between the
parties.
II
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We grant substantial deference to the factual findings made by a Family
Part judge following a trial in a domestic violence matter, especially findings
that are based on the judge's assessment of the credibility of a witness's
testimony. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). This deference is
rooted in the common sense notion that the trial judge "hears the case, sees and
observes the witnesses, [and] hears them testify, [affording the judge] a better
perspective than a reviewing court in evaluating the veracity of witnesses."
Cesare, 154 N.J. at 412 (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)).
We will 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 . . . ." 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. 1963)).
The PDVA complaint plaintiff filed against defendant on August 10, 2016
listed eighteen 3 different offenses that constitute a predicate act of domestic
3
Effective January 17, 2014, the Legislature created the crime of cyber -
harassment, N.J.S.A. 2C:33-4.1. The Legislature also amended N.J.S.A.
2C:25-19 to include cyber-harassment as the nineteenth predicate act of
domesticate violence. Defendant was not charged with this offense.
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violence under N.J.S.A. 2C:25-19. Based on plaintiff's description of
defendant's conduct, the Family Part staff who prepared the complaint checked
"harassment" as the relevant predicate act here. N.J.S.A. 2C:33-4 defines the
petty disorderly offense of harassment as follows:
[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;
b. Subjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so; 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.
Our Supreme Court has noted 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.
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[J.D. v. M.D.F., 207 N.J. 458, 475 (2011) (citation
omitted).]
Here, the facts show that since their divorce, the parties have been unable
to communicate in an amicable fashion about matters related to their children.
Both parties have adopted a highly combative, emotionally charged position
when they interact as parents, presuming the other has acted or will act in bad
faith. This hostility has affected their judgement to such an extent that facially
innocuous events are transformed into plots to undermine the other parent 's
relationship with their children.
The trial judge's findings did not properly account for the parties'
acrimony. The judge found defendant committed the predicate act of harassment
when he "continued to send another series of text messages totaling seven
between 11:00 o'clock in the evening on August 9, [2016] until approximately
2:00 o'clock in the morning on August 10, [2016]." However, plaintiff did not
become aware of the existence of these text messages until she woke up on the
morning of August 10, 2016. Despite this, the judge concluded that defendant's
decision to continue to text plaintiff constituted harassment "because the only
purpose that could be deemed to have occurred was with the purpose to harass."
N.J.S.A. 2C:33-4(a) defines harassment as "a communication or
communications anonymously or at extremely inconvenient hours, or in
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offensively coarse language, or any other manner likely to cause annoyance or
alarm." (Emphasis added). The facts here do not support the judge's inference
that defendant sent these text messages with the purpose to harass plaintiff. The
record does not disclose, and the judge did not make any findings about the
content of these seven text messages. In L.M.F. v. J.A.F., Jr., 421 N.J. Super.
523, 535 (App. Div. 2011), this court addressed a case in which the defendant
sent the plaintiff, his former wife, "eighteen text messages inquiring about their
daughter's SAT scores." The judge granted the plaintiff's application for an FRO
because the defendant sent "text messages to [the plaintiff] about something that
did not need to be addressed at 6:50 a.m., but [the defendant] felt that need to
do so . . . most importantly, that [the defendant] committed an act of harassment
because he communicated with her in a manner that was likely to cause
annoyance." Id. at 532.
In reversing the Family Part's decision and vacating the FRO in L.M.F. v.
J.A.F., Jr., we noted the inherent risk of mischaracterizing post-marital
contretemps as predicate acts of domestic violence in our technological age:
The facts presented here exemplify the complexity of
human interactions and the strain they place on Family
Part judges as they struggle to distinguish between the
cases that merit judicial intervention and those that do
not. We conclude the evidence presented here shows
only the convergence of modern technology and the
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foibles of human judgment. Our ability to
instantaneously and effortlessly send electronic
messages has created a gateway unfettered by
reflection and open to rash, emotionally driven
decisions. The ease and speed by which we transmit
electronic messages has also created a commensurate
expectation of an equally instantaneous response from
the recipient.
Despite their decision to terminate their marriage, and
in defendant's case to remarry, the parties' relationship
as parents will never end. In an implicit recognition of
this reality, the parties used texting as the primary
means of communicating with each other concerning
the welfare of their children. Both sides agreed that
over the four years preceding this litigation, the
subject matter of their text messages was always the
children.
Given the emotional tension that seems to have
remained following the divorce, texting provided an
efficient means of exchanging information as parents,
while avoiding the personal contact associated with a
telephone call or a face-to-face encounter. The limited
number of words that can be sent at any one time in a
text message also minimized the risk for extraneous
matters to interfere with the primary dialogue of
parenting. Despite these qualities, texting is merely a
tool, a means to an end. Without reasonable
cooperation, texting can lead to the frustration and
misuse we witness here.
[Id. at 534-35.]
The facts here are nearly identical to the salient facts that drove our
analysis in L.M.F. v. J.A.F., Jr.. Here, however, there is far less evidence to
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support a finding of harassment under N.J.S.A. 2C:33-4(a). The record here
does not disclose the content of the seven text messages defendant sent plaintiff.
Furthermore, since defendant resides in California, it is highly unlikely he will
have any direct physical contact with plaintiff. Plaintiff's nebulous testimony
about defendant's alleged threat to report her unauthorized use of her work
computer to her employer does not implicate the public policy concerns
identified by the Legislature in the PDVA, N.J.S.A. 2C:25-18. Defendant did
not introduce into evidence the actual text message nor read its content verbatim
into the record. The constitutionality of the offense of harassment in a written
message is predicated on the intent of the sender. As our Supreme Court recently
reaffirmed:
In cases based on pure expressive activity, the
amorphous terms "alarming conduct" and "acts with
purpose to alarm or seriously annoy" must be defined
in more concrete terms consonant with the dictates of
the free-speech clauses of our Federal and State
Constitutions. Narrowly reading the terms alarm and
annoy—as we have done in past cases involving
subsection (a) of N.J.S.A. 2C:33-4—will save the
statute from constitutional infirmity.
[State v. Burkert, 231 N.J. 257, 284 (2017) (citation
omitted).]
Without knowing the actual words defendant wrote, there is insufficien t
evidence to infer an intent to harass. Finally, even if plaintiff had proven the
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predicate offense of harassment, there is no evidence that a final restraining
order is necessary to prevent future abuse. Silver, 387 N.J. Super. at 126-27.
As the Court noted in J.D.:
Although evidence offered by a putative victim may
therefore suffice to meet the definition of harassment,
courts must be careful not to overlook the statutory
requirement that there be a finding that "relief is
necessary to prevent further abuse." Merely
concluding that plaintiff has described acts that
qualify as harassment and omitting this added inquiry
opens the door to potential abuse of the important
purposes that the Act is designed to serve and
threatens to "trivialize the plight of true victims, in the
process."
[J.D., 207 N.J. at 476 (citations omitted).]
Reversed.
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