STATE OF NEW JERSEY VS. BARTHOLOMEW P. MCINERNEY(08-10-2334, MIDDLESEX COUNTY AND STATEWIDE)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0945-15T3
R.G., APPROVED FOR PUBLICATION
Plaintiff-Respondent, March 14, 2017
v. APPELLATE DIVISION
R.G.,
Defendant-Appellant.
_______________________________
Argued January 19, 2017 - Decided March 14, 2017
Before Judges Lihotz, Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Somerset
County, Docket No. FV-18-0318-16.
James A. Abate argued the cause for
appellant (James A. Abate, LLC, attorneys;
Mr. Abate, of counsel; Randi S. Greenberg,
on the brief).
Rebecca A. Berger argued the cause for
respondent (Charny, Charny & Karpousis,
attorneys; Ms. Berger, of counsel and on the
brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
Defendant R.G. appeals from the entry of a final
restraining order pursuant to the Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). On appeal,
defendant argues the Family Part lacked jurisdiction to enter a
final restraining order and maintains the altercation with
plaintiff was not domestic violence. We reject defendant's
jurisdictional challenge, noting he and plaintiff, R.G., who are
brothers, fall within the amended jurisdictional provision of
N.J.S.A. 2C:25-19(d). However, we agree the facts as presented
do not constitute conduct sufficient to support the entry of the
order. Additionally, we address evidentiary rulings warranting
reversal.
We recount the facts found in the trial testimony provided
by plaintiff and defendant, along with documents admitted into
evidence during the final hearing.
Defendant and his siblings grew up in New Jersey, but he
moved to Long Island, New York, approximately thirty-six years
ago. His younger brother, plaintiff, and his sister remained in
New Jersey and principally provided care for the parties'
elderly parents. As their parents' health began to fail, the
bulk of responsibility fell to plaintiff, who was empowered to
make decisions for each parent regarding "physical care and
treatment or to make decisions to refuse medical care and
treatment." Plaintiff also was named the attorney-in-fact to
handle his parents' affairs.
2 A-0945-15T3
In spring 2015, the parties' mother contracted pneumonia.
Unfortunately, this led to medical complications. When she was
discharged from the hospital, plaintiff commenced steps to place
her in a skilled care facility. Defendant and his sister
objected to relocating their mother from her home and away from
her husband. Soon the parties' sister was convinced their
mother and father needed a level of care neither she nor her
brothers could provide. Defendant, however, wanted to explore
possible alternatives to keep his parents in their own home.
Beginning in May 2015, defendant articulated his opposition
to plaintiff's proposal to enroll his mother in a facility and
later move his father to the same place. Using text messages
sent to his siblings, defendant expressed his repudiation of the
decisions and those who made them. Defendant testified he was
making arrangements to provide care for his parents when
plaintiff sent him an email stating he permanently moved their
mother to the proposed facility. Defendant responded with
disgust and disappointment because plaintiff failed to consider
his plan to provide care for his parents in their home. The
charged comments also contain defendant's desire that plaintiff
suffer in his old age.
Plaintiff's email sent ten days later included instructions
to defendant for visiting his parents. In part, the message was
3 A-0945-15T3
informational and, in part, condescending. It also contained
directives so the parties would avoid seeing each other,
apparently because defendant previously texted he did not want
to see plaintiff "or else." Defendant's response to plaintiff's
email was crude, defensive, and angry.
Also introduced at trial were copies of several text
messages sent by defendant to plaintiff and his sister.
However, the copies of the messages in the record do not include
any prompting texts from plaintiff or plaintiff's replies; we
are given only text messages sent by defendant.
Defendant did not deny he sent the text messages, which
were admitted into evidence. Their content, in part, contains
coarse, gutter language and name calling. Some texts include
defendant's demands for financial documents and state his
intention to engage lawyers and to inform Medicare and Medicaid
about his parents' assets, implying plaintiff and his sister had
not been forthright in making disclosures. In a prickly and
foulmouthed way, the texts convey defendant's displeasure his
mother was taken from her home, she was not encouraged to be
mobile but mostly kept in a wheelchair, and his father was not
told his wife would never return home. Further, defendant
relates his belief his father was left alone, and plaintiff was
ignoring defendant's calls and demands.
4 A-0945-15T3
Plaintiff included one comment he sent, that informed
defendant his calls woke their father and rhetorically added,
"you need to harass dad also?" In response, defendant wrote:
I luv to harass u now since u cannot speak
like a man
It will get worse and worse
Stand up to your brother like a man and
discuss this U r making it worse
U owe better to ur parents
There are other texts, which have none of these traits. Rather,
they convey defendant's desire to provide care for his parents
or reflect bitterness because of the decisions plaintiff made.
On September 5, 2015, defendant and his wife travelled to
New Jersey to visit his parents, arriving at the facility in the
afternoon. Plaintiff took defendant's wife aside to explain his
parents' conditions and benefits provided by the facility.
Plaintiff testified: "All of a sudden [defendant] comes charging
in, getting in my face in a rage." Defendant told his wife
plaintiff was "a liar," and she should not "listen to him."
Plaintiff's testimony recounted the exchange stating, as he
spoke, defendant repeatedly held an open hand like "a slap"
right next to plaintiff's face, or held his hand in a fist, as
if he were going to hit plaintiff. The argument, where both
brothers were yelling, continued in front of the facility's
residents and nurses. A nurse instructed them to leave.
5 A-0945-15T3
Defendant went outside and plaintiff followed. As the argument
continued, plaintiff asked defendant if he would hit him in
front of their parents or whether he would "do it [hit him] in
front of a cop." Defendant "shoved" him. Plaintiff stated
defendant shoved him six times, during two of which he was
knocked over and his glasses fell off. Police were called and
according to plaintiff, defendant was charged with simple
assault.
Plaintiff responded affirmatively on direct to a series of
leading questions posed by his attorney. He stated "yes," when
asked whether he interpreted defendant's texts and conduct as
posing a threat, whether the actions made him fear for his
safety and well-being, and whether it caused him to fear for the
safety and well-being of his family. Finally, he responded
"yes" when asked if he believed a restraining order was
necessary.
Plaintiff could not relate any history of domestic violence
between himself and defendant. He admitted their relationship
was good until their mother became ill in May 2015. He then
testified, plaintiff's nephew, defendant's son, obtained an
order restraining defendant from contact with him and his
family, two years earlier. Plaintiff went on to detail this
altercation.
6 A-0945-15T3
Defendant testified. He noted plaintiff's series of text
messages and emails omitted information plaintiff sent, which
goaded his responses. He explained plaintiff decided he no
longer wanted to care for their parents and sought a resolution
to aid himself and his wife, by rejecting defendant's
alternative plan to allow their parents to stay together in
their own home. Defendant stated plaintiff "got extremely
pissed-off" because defendant wanted his mother to stay in her
home. Defendant mentioned he felt he was "kicked in the teeth,"
his thoughts were "poo-pooed," and he felt "sandbagged" by
plaintiff and his sister, as they did not even consider his
proposal for their parents' care. He also objected because
plaintiff and his sister were not honest with his parents about
what was happening. He made requests of his siblings "two or
three times" to do small things that would make his mother's
surroundings more comfortable. He believed plaintiff acted for
his own benefit, not in his parents' best interests.
Defendant admitted he resented plaintiff's decision to
send texts rather than calling to discuss these problems, which
defendant felt signaled "a total lack of respect." He admitted
he was "very angry" during the September 5, 2015 altercation,
but asserted plaintiff was also yelling, showed no fear, and
acted to provoke him. Plaintiff would not leave defendant alone
7 A-0945-15T3
with his parents and even followed him when he walked away.
Defendant admitted he shoved plaintiff more than once, but not
six times. Defendant also acknowledged a restraining order,
which was about to expire, was entered in New York because he
slapped his adult son, though he denied injuring his son or
smashing his car as plaintiff asserted.
At the conclusion of the testimony, the trial judge entered
an oral opinion. He concluded the court had jurisdiction, even
though the parties had not resided together for more than thirty
years. He also concluded
defendant engaged in an act of harassment by
telling the plaintiff on several occasions
the following:
Calling him a pompous asshole.
Calling him a pompous ass wipe.
"That's at all [sic] self-
righteous asses, you guys thin[k]
your shit doesn't stink."
The factual support for finding defendant committed the
predicate act of harassment included this cited language from
one email sent by defendant to plaintiff:
What do you think that I am not going to
take care of him [their father] while he's
with me. Your email sounds like you are
lecturing me and telling me how to take care
of him. You righteous prick. You and your
wife always seem to have a better life chip
on your shoulders and that your shit didn't
[sic] stink. Your shit smells like mine,
you asshole. You are the last one who
should be lecturing, you drunk bastard.
8 A-0945-15T3
Stop the bullshit. And your family know
[sic] better how to take care of dad.
The judge also recited this language from defendant's texts:
I will tear our family apart.
. . . .
I will break you financially,
morally, physically and mentally.
On July 12th, "I love to harass you
since you cannot speak like a man,
stand up to your brother and
discuss this. It'll get worse and
worse."
On June 27th, "I will come down
there real soon."
On June 13th, "This is not done. I
will tear our family apart. Get
ready."
And June 12th, "I feel like coming
to you and slapping you silly."
Finally. the judge found the September 5 shoving amounted to a
simple assault.
Having concluded plaintiff proved acts of domestic violence
occurred, the judge made findings on the second Silver1 prong,
that is, whether there was immediate danger, which he stated was
not "self-evident." The judge relied on the alleged conduct
between defendant and his son, as proof of prior domestic
violence, and noted defendant's escalating threats, and the
1
Silver v. Silver, 387 N.J. Super. 112 (App Div. 2006).
9 A-0945-15T3
parties' "communications culminat[ed] in a physical dispute."
Accordingly, the judge concluded plaintiff proved an immediate
danger, warranting entry of a final restraining order.
Defendant filed this appeal challenging the final domestic
violence restraining order filed on September 17, 2015. He
argues, the Family Part lacked jurisdiction to entertain
plaintiff's complaint, evidence of the incident involving his
son was not relevant and was erroneously considered, and the
judge mistakenly found an immediate danger warranting the entry
of a final domestic violence restraining order.
Our review of a Family Part judge's findings
following a bench trial is a narrow one.
Cesare v. Cesare, 154 N.J. 394, 411 (1998).
"In our review of a trial court's order
entered following trial in a domestic
violence matter, we grant substantial
deference to the trial court's findings of
fact and the legal conclusions based upon
those findings." D.N. v. K.M., 429 N.J.
Super. 592, 596 (App. Div. 2013), certif.
denied, 216 N.J. 587 (2014). In other words,
we will neither "'engage in an independent
assessment of the evidence as if [we] were
the court of first instance,'" N.J. Div. of
Youth & Family Servs. v. Z.P.R., 351 N.J.
Super. 427, 433 (App. Div. 2002) (alteration
in original) (quoting State v. Locurto, 157
N.J. 463, 471 (1999)), nor "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.'" Cesare,
supra, 154 N.J. at 412 (quoting Rova Farms
Resort, Inc. v. Inv[r's] Ins. Co. of Am., 65
10 A-0945-15T3
N.J. 474, 484 (1974)). On the other hand,
where our review addresses questions of law,
a "trial judge's findings are not entitled
to that same degree of deference if they are
based upon a misunderstanding of the
applicable legal principles." Z.P.R.,
supra, 351 N.J. Super. at 434 (citing
Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
[N.T.B. v. D.D.B., 442 N.J. Super. 205, 215-
216 (App. Div. 2015).]
Defendant's jurisdictional challenge focuses on the
parties' relationship, arguing plaintiff does not meet the
statutory definition of a "victim of domestic violence."
Applying traditional principles of statutory construction, we
examine the statute's plain language, which is generally the
best indicator of the Legislature's intent. DiProspero v. Penn,
183 N.J. 477, 492 (2005). The words used in the Act are given
their "ordinary meaning and significance", and we must "read
them in context with related provisions so as to give sense to
the legislation as a whole." Donelson v. DuPont Chambers Works,
206 N.J. 243, 256 (2011) (quoting DiProspero, supra, 183 N.J. at
492).
Plaintiff's counsel points out the Act was recently
amended, and modifications became effective prior to the
September 5, 2015 incident. See L. 2015, c. 98 § 2, eff. Aug.
10, 2015. The amendment created a significant change to the
definition of a "Victim of Domestic Violence," N.J.S.A. 2C:25-
11 A-0945-15T3
19(d), which we agree resolves the jurisdictional issue
presented.
Formerly, the statute defined a victim of domestic violence
as "a person . . . who has been subjected to domestic violence
by . . . any person who is a present or former household
member." N.G. v. G.P., 426 N.J. Super. 398, 409 (App. Div.
2012) (quoting N.J.S.A. 2C:25-19(d) (1994), amended by L. 2015,
c. 98 §2, eff. Aug. 10, 2015). Courts struggled to determine
the reach of this provision, especially when deciding what
relationships fell within the net of "former household members."
Ibid. ("In determining whether a defendant is a 'former
household member' under the Act, the inquiry should be whether
the 'perpetrator's past domestic relationship with the alleged
victim provides a special opportunity for abusive and
controlling behavior.'") (quoting Tribuzio v. Roder, 356 N.J.
Super. 590, 595 (App. Div. 2003) (citations omitted)).
The 2015 amendments clarified the statutory definition to
end debate regarding the scope of coverage of "present household
member" by redefining a "Victim of domestic violence" to mean
a person protected under this act and shall
include any person who is 18 years of age or
older or who is an emancipated minor and who
has been subjected to domestic violence by a
spouse, former spouse, or any other person
who is a present household member or was at
any time a household member.
12 A-0945-15T3
[N.J.S.A. 2C:25-19(d).]
Defendant's attack here refers to the prior version of the
statute, making his arguments and prior case law interpretations
inapposite.2 We conclude the statutory amendments express the
Legislature's intent to broaden the application of this remedial
Act. We are required to construe its provisions liberally.
Cesare, supra, 154 N.J. at 400. See also N.J.S.A. 2C:25-18
(reciting the legislature's intent to provide victims the
maximum protection from domestic abuse). Consequently, we
conclude the Family Part properly exercised jurisdiction over
this dispute.
Next, defendant argues testimony regarding the restraining
order obtained by his son was not relevant to this dispute, and
its introduction interjected inadmissible prejudicial inferences
regarding defendant's behavior. Plaintiff argues the testimony
was limited, and its admission did not represent an abuse of
discretion.
2
In particular, Jutchenko v. Jutchenko, 283 N.J. Super. 17
(App. Div. 1995), which involved adult siblings who had not
lived together since childhood. This court rejected the trial
court's finding of jurisdiction, reasoning, "we do not believe
that the Legislature could have intended the protections of the
Act to extend to conduct related to a dispute between two
persons who have not resided together in the same household for
twenty years . . . ." Id. at 20. The Act's amended
jurisdictional provisions cast doubt on the viability of this
holding.
13 A-0945-15T3
We note defendant, who represented himself before the trial
judge, did not raise this issue. "Because defendant did not
raise this argument below, this issue is reviewed under the
'plain error' standard, which provides reversal is mandated only
for errors 'of such a nature as to have been clearly capable of
producing an unjust result.'" State v. Green, 447 N.J. Super.
317, 325 (App. Div. 2016) (citing R. 2:10-2).
The Act permits consideration of "[t]he previous history of
domestic violence between the plaintiff and defendant, including
threats, harassment and physical abuse[.]" N.J.S.A. 2C:25-
29(a)(1) (emphasis added). Also admissible is "[t]he existence
of a verifiable order of protection from another jurisdiction."
N.J.S.A. 2C:25-29(a)(6). However, in this matter, the admission
of evidence of purported domestic violence between defendant and
a third party other than plaintiff and the trial judge's
reliance thereon presents several problems compelling us to
reverse.
First, "[e]vidence of a person's character or character
trait . . . is not admissible for the purpose of proving that
the person acted in conformity therewith on a particular
occasion . . . ." N.J.R.E. 404(a). The rule specifically
excludes admission of evidence regarding other wrongs or acts
"to prove the disposition of a person in order to show that such
14 A-0945-15T3
person acted in conformity therewith." N.J.R.E. 404(b). The
rule allows, however, admission of evidence of other wrongs
provided the evidence shows "proof of motive, opportunity,
intent, preparation, plan, knowledge, identity or absence of
mistake or accident when such matters are relevant to a material
issue in dispute." Ibid.
When considering the admissibility of evidence of other
crimes or wrongs under N.J.R.E. 404(b), courts are instructed to
apply the standard adopted by the Supreme Court in State v.
Cofield, 127 N.J. 328 (1992), which requires careful analysis of
four factors:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and
reasonably close in time to the offense
charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence
must not be outweighed by its apparent
prejudice.
[Cofield, supra, 127 N.J. at 338 (citing
Abraham P. Ordover, Balancing the
Presumptions of Guilt and Innocence: Rules
404(b), 608(b), And 609(a), 38 Emory L.J.,
135, 160 (1989)).]
If the trial judge conducts an appropriate analysis under
Cofield, this court will not disturb the judge's ruling on the
15 A-0945-15T3
admissibility of 404(b) evidence, absent a "clear error of
judgment."3 State v. Marrero, 148 N.J. 469, 483 (1997).
Although N.J.S.A. 2C:25-29(a)(1) permits the introduction
of evidence of the "previous history of domestic violence," it
does not authorize introduction of evidence regarding a
defendant's past altercations with others. Rather, N.J.S.A.
2C:25-29(a)(1) and (6), limits the trial court's consideration
of evidence to "the previous history of domestic violence
between plaintiff and defendant," and the introduction of a
"verifiable order of protection from another jurisdiction,"
respectively. This is "[b]ecause a particular history can
greatly affect the context of a domestic violence dispute,"
thus, "trial courts must weigh the entire relationship between
the parties and must specifically set forth their findings of
fact in that regard." Cesare, supra, 154 N.J. at 405. Any
other evidence presented must meet the test for admission as
provided by our Rules of Evidence. See N.J.R.E. 101 to 1103.
Plaintiff's testimony describing an incident between
defendant and defendant's son was not permitted by N.J.S.A.
3
Subsequent to issuing its opinion in Cofield, the Court has
instructed the second factor of the Cofield analysis, regarding
considerations of whether the conduct is "similar in kind and
reasonably close in time," is not required in every case
implicating a Rule 404(b) dispute. See State v. Williams, 190
N.J. 114, 131-132 (2007).
16 A-0945-15T3
2C:25-29(a)(1). Nor was it offered to be used for something
other than proof of defendant's bad character. Indeed, no
Cofield analysis was made by the judge prior to the introduction
of the evidence. In fact, the judge made no specific review of
the relevance or admissibility of the proffered bad acts
evidence.
Second, our careful review of the record reveals no
foundation established plaintiff testified based upon his
personal knowledge. See N.J.R.E. 602 ("[A] witness may not
testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the
matter."). Plaintiff never stated he was present and witnessed
the events between defendant and his son. In fact, he was never
asked to provide a foundation for the testimony. In our view,
plaintiff was repeating what others told him. Such testimony
represents inadmissible hearsay. N.J.R.E. 802 ("Hearsay is not
admissible except as provided by these rules or by other law.").
Contrary to plaintiff's assertion, the facts at hand are
unlike the statements offered by the plaintiff in Rosiak v.
Melvin, 351 N.J. Super. 322 (Ch. Div. 2002). In Rosiak, the
defendant told the plaintiff he had assaulted his first wife.
This admission provided context for the plaintiff's fear of
statements the defendant later made to her, when they ended
17 A-0945-15T3
their relationship. Id. at 324-25. In this matter, plaintiff's
statements amounted to nothing more than what he was told by
others, not what he was told by defendant.
We also reject the notion defendant's responsive statements
to plaintiff's testimony, admitting he slapped his son and a
restraining order was about to expire, are curative. For these
reasons, we find no basis for the admission of plaintiff's
testimony regarding defendant's alleged history of domestic
violence.
Further, when determining the need for a final restraining
order, a matter the judge characterized as "not self-evident,"
the judge specifically relied upon "the prior history."
However, there was no prior history between these parties, who,
according to plaintiff, enjoyed a "good" relationship prior to
their mother's latest illness. The judge did not identify what
he meant by "given the prior history." Certainly, the reference
encompassed plaintiff's irrelevant and inadmissible hearsay
testimony. Although we are aware of the challenges posed when
one party in a trial is self-represented, the judge, as
gatekeeper, must assure a fair process. See D.N., supra, 429
N.J. Super. at 602.
We conclude the trial judge abused his discretion in
permitting the introduction of inadmissible evidence of
18 A-0945-15T3
defendant's prior bad acts in the form of hearsay. N.J. Div. of
Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 571 (App.
Div. 2015). Further, the necessary finding of a need for a
final restraining order was not based on admissible,
substantial, and credible evidence, Cesare, supra, 154 N.J. at
411-12, but rather upon inadmissible testimony as suggesting a
pattern of abuse. We conclude this rises to plain error and are
constrained to reverse the order.
Defendant next argues the trial evidence does not support
the necessary findings required by Silver to support entry of a
final restraining order. Silver, supra, 387 N.J. Super. at 126-
27. This court made clear "the commission of any one of the
predicate acts enumerated in N.J.S.A. 2C:25-19(a) does not
automatically warrant issuance of a domestic violence
restraining order." Id. at 124 (citing Corrente v. Corrente,
281 N.J. Super. 243, 248 (App. Div. 1995)). Thus, the trial
court must find a predicate offense and also find a basis, upon
the history of the parties' relationship, to conclude the safety
of the victim is threatened and a restraining order is necessary
to prevent further danger to person or property. Id. at 125-26.
Here, the trial judge concluded defendant committed two
predicate acts, harassment and simple assault. We consider the
evidence supporting these offenses.
19 A-0945-15T3
"Harassment is the most frequently reported predicate
offense among those statutorily recognized in N.J.S.A. 2C:25-19
as a basis for a finding of domestic violence." L.M.F. v.
J.A.F., Jr., 421 N.J. Super. 523, 533-34 (App. Div. 2011)
(citing J.D. v. M.D.F., 207 N.J. 458, 476 (2011)). The petty
disorderly persons offense of harassment requires a person,
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.
[N.J.S.A. 2C:33-4.]
In this matter, we infer the trial judge found defendant
violated subsection (c) of N.J.S.A. 2C:33-4, as subsection (a)
is generally focused on the mode of speech employed, and not a
statement's content. State v. Hoffman, 149 N.J. 564, 583-84
(1997). Examining subsection (c), there is no dispute defendant
authored and sent the text messages at issue and almost all
content is offensively coarse. The question for determination,
however, is whether defendant sent the message with the intent
20 A-0945-15T3
to harass. N.J.S.A. 2C:33-4. Our review of the record reveals
no evidence to support this necessary element, which leads us to
reverse. Cesare, supra, 154 N.J. at 412.
The Supreme Court has emphasized the care a trial court
must exercise to distinguish between ordinary disputes and
disagreements between family members and those acts that cross
the line into domestic violence. J.D., supra, 207 N.J. at 475-
76. A plaintiff's assertion he or she felt harassed is
insufficient to satisfy the statutory element. Id. 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.
When stating his findings, the trial judge listed some of
defendant's text messages and recited excerpts from one of
defendant's emails. Relying on these excised statements, he
concluded defendant committed harassment. We disagree.
Importantly, defendant did not initiate the email
conversations, yet the factual findings fail to mention the
content of the precipitating emails from plaintiff. As to the
text messages, again the judge's findings do not mention
plaintiff's transmissions, leaving us unsure whether the judge
reviewed plaintiff's side of the conversation. The record
provided on appeal includes only select portions of the
21 A-0945-15T3
defendant's transmission and almost all of plaintiff's comments
are blurred or illegible, except for one or two, which
apparently suggest support for his complaint. Thus, we are
unable to analyze the entire text conversations to determine
whether the context shows defendant was sending harassing
communications.
We have no doubt the divergent views regarding placing
their parents in a facility was emotional and highly stressful
for both parties. We also do not discount defendant's
inappropriate expressions of anger and disgust for plaintiff's
decision.
Vulgar name-calling alone is not domestic violence. E.M.B.
v. R.F.B., 419 N.J. Super. 177, 182-83 (App. Div. 2011). A
fundamental element making a communication criminal harassment
is the purpose to harass. "'[P]urpose to harass' is critical to
the constitutionality of the harassment offense." State v.
Castagna, 387 N.J. Super. 598, 606 (App. Div.), certif. denied,
188 N.J. 577 (2006). See also State v. L.C., 283 N.J. Super.
441, 450 (App. Div. 1995) (holding the harassment statute was
not enacted to "proscribe mere speech, use of language, or other
forms of expression"), certif. denied, 143 N.J. 325 (1996).
Because direct proof of intent is often absent, "purpose
may and often must be inferred from what is said and done and
22 A-0945-15T3
the surrounding circumstances[,]" and "[p]rior conduct and
statements may be relevant to and support an inference of
purpose." Castagna, supra, 387 N.J. Super. at 606 (citations
omitted). See also H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003)
(the purpose to harass may be inferred from "common sense and
experience."). However, "mere awareness that someone might be
alarmed or annoyed is insufficient." J.D., supra, 207 N.J. at
487 (citing State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div.
1989)). That is, a plaintiff's subjective reaction to the
conduct, standing alone, is insufficient to establish a
defendant acted with improper purpose. Ibid.
The text messages introduced into evidence convey
defendant's concern for his parents' needs and feelings about
permanently leaving their home. They also express frustration
because defendant believed plaintiff was ignoring his phone
calls and possibly isolating him from his father. Moreover,
they are crude, rude, and vulgar. However, isolating the latter
expressions as establishing harassment, without reviewing the
surrounding context, including plaintiff's preceding
communications, is problematic. See L.M.F., supra, 421 N.J.
Super. at 534 ("Our ability to instantaneously and effortlessly
send electronic messages has created a gateway unfettered by
reflection and open to rash, emotionally driven decisions.").
23 A-0945-15T3
Even the comments listed in the judge's findings as apparently
representing threats (i.e., "I will tear our family apart" and
"I will break you financially, morally, physically and
mentally") are preceded by defendant's assertion of his intended
legal action based on purported misfeasance by plaintiff.
In this matter, the judge made no findings to support a
purpose to harass. Other indicia that might circumstantially
prove such a purpose, such as plaintiff telling defendant to
stop his texts, is also absent. Overall, we conclude the record
fails to establish the emails and texts were designed to harass
plaintiff.
The Act "is not designed to interdict all forms of
unpleasant exchanges between parties." Bresocnik v. Gallegos,
367 N.J. Super. 178, 181 (App. Div. 2004). Further, it "is not
a primer for social etiquette and should not be used as a sword
to wield against every unpleasant encounter or annoying
interaction that occurs between household members . . . ."
Ibid. A mere expression of anger between persons in a requisite
relationship is not an act of harassment. The 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
24 A-0945-15T3
contretemps.'" See J.D., supra, 207 N.J. at 475 (quoting
Corrente, supra, 281 N.J. Super. at 249-50).
The context of defendant's statements matters. Excising
portions of his statements without weighing the entirety of the
comments, as well as whether they are responsive to something
sent by plaintiff, leads to an unsupportable result. We
conclude the evidence in the record is insufficient to show
defendant acted with a purpose to harass plaintiff. N.J.S.A.
2C:33-4(c). The finding of harassment is reversed.
Our conclusion about the legal insufficiency of the record
to support harassment must not be misunderstood as sanctioning
or excusing defendant's manner of expressing himself. His anger
about being "sandbagged" on issues where he was previously
included is palpable. We cannot overemphasize the impropriety
of his expressions on the subject, which we find were juvenile,
uncouth, foulmouthed, insulting, and belligerent. None of these
statements have a place in civil discourse, despite the
heightened emotionality of the disagreement.
Plaintiff also alleged defendant committed a simple
assault. A simple assault requires the intent to cause bodily
injury. N.J.S.A. 2C:12-1(a)(1). Here, plaintiff testified
defendant repeatedly "shoved" him during the course of their
mutual, heated exchange. Although defendant disagreed on the
25 A-0945-15T3
extent of the physical contact, he admitted he repeatedly shoved
plaintiff and does not deny plaintiff was knocked to the ground.
From this evidence, we can infer defendant's conduct was
purposeful. Accordingly, the judge's finding defendant
committed simple assault, a predicate act under N.J.S.A. 2C:25-
19(a), is supported.
Commission of a predicate act is necessary, but alone
insufficient, to trigger relief provided by the Act. Silver,
supra, 387 N.J. Super. at 126-27 (stating once a plaintiff
establishes a predicate act, the court must determine "whether a
restraining order is necessary, upon an evaluation of the facts
. . . to protect the victim from an immediate danger or to
prevent further abuse"). See also J.D., supra, 207 N.J. at 476
("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." (quoting Corrente, supra, 281
N.J. Super. at 250)). Application of the Act is not automatic
or rote. The second prong set forth in Silver requires the
conduct must imbued by a desire to abuse or control the victim.
Silver, supra, 387 N.J. Super. at 126-27.
[I]t is clear that the drafters of the law
did not intend that the commission of any
26 A-0945-15T3
one of these acts automatically would
warrant the issuance of a domestic violence
order. The law mandates that acts claimed
by a plaintiff to be domestic violence must
be evaluated in light of the previous
history of domestic violence between the
plaintiff and defendant including previous
threats, harassment and physical abuse and
in light of whether immediate danger to the
person or property is present. N.J.S.A.
2C:25-29(a)(1) and (2). This requirement
reflects the reality that domestic violence
is ordinarily more than an isolated aberrant
act and incorporates the legislative intent
to provide a vehicle to protect victims
whose safety is threatened. This is the
backdrop on which defendant's acts must be
evaluated.
[Corrente, supra, 281 N.J. Super. at 248.]
Testimonial evidence showing plaintiff feared his brother
consists of his one-word responses to counsel's series of
leading questions. His testimony lacks a basis for the
response. The record also contains evidence directly refuting
this response. For example, during the September 5 incident,
the argument was mutual and plaintiff followed defendant outside
to continue the argument despite the fact defendant walked away.
Finally, the trial judge noted the tension and stress of both
parties during this difficult time.
In considering whether "immediate danger" was present, the
trial judge found:
In some cases that is self-evident. It's
not so the case here. But I do find that,
given the prior history, given the
27 A-0945-15T3
escalating threats, the nature of the
communications culminating in a physical
dispute, that the second prong of Silver is
satisfied and there is an immediate danger
to this plaintiff warranting the exercise of
a final restraining order.
We have identified the erroneous evidentiary rulings of a
"prior history" and we have rejected defendant's text messages
evince criminal harassment. After tearing away such factual
support, the conclusion a final restraining order was necessary
to protect plaintiff crumbles.
While we find defendant's manner of expressing himself
unacceptable and repugnant, after considering the entire record,
we cannot conclude the parties' interaction on September 5
implicates the public policy concerns identified by the
Legislature, underpinning the need for a domestic violence
restraining order.
The ultimate issue is whether, in light of
these factors, the victim was, at the time
of the precipitating event, subjected to
potential abusive and controlling behavior
related to and arising out of the past
domestic relationship. If so, the victim is
in need of and entitled to the special
protection provided by the Act.
[Tribuzio, supra, 356 N.J. Super. at 597.]
The critical fact absent from the required analysis is a
sufficient nexus between the predicate conduct, in this case the
September 5, 2015 shoving, and the domestic relationship between
28 A-0945-15T3
the parties. The offense must be tainted by a desire to abuse
or control the victim because of their domestic relationship.
Here, defendant's actions during this incident do not show a
"pattern of abusive and controlling behavior" of the kind
intended to be prevented by the Act. Peranio v. Peranio, 280
N.J. Super. 47, 52 (App. Div. 1995); see also Cesare, supra, 154
N.J. at 397; N.G., supra, 426 N.J. Super. at 409. Accordingly,
we conclude the evidence is inadequate to support a finding
defendant's conduct constituted domestic abuse. See N.T.B.,
supra, 442 N.J. Super. at 215-16 (holding not every dispute or
disturbance between family members is sufficient to warrant the
Act's application).
In summary, defendant, by virtue of his familial
relationship with plaintiff, falls within the newly modified
jurisdictional scope of the Act. However, for the reasons
stated, the conflict set forth in this record is not tantamount
to domestic violence for which a final restraining order should
be entered. Finally, our review does not lead to the conclusion
the evidence supported a separate finding a final restraining
order was necessary for plaintiff's immediate protection or to
prevent further abuse. See J.D., supra, 207 N.J. at 488.
Reversed.
29 A-0945-15T3