R.L. VS. M.H. (FV-05-000142-16, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-1242-15T3
R.L.,
Plaintiff-Respondent,
v.
M.H.,
Defendant-Appellant.
______________________________
Argued January 19, 2017 – Decided March 20, 2017
Before Judges Lihotz and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cape May
County, Docket No. FV-05-000142-16.
Robert D. Herman argued the cause for
appellant.
Respondent has not filed a brief.
PER CURIAM
Defendant, M.H., appeals from an October 8, 2015 order
entering a final restraining order (FRO) barring defendant from
having any contact with his wife, plaintiff R.L. We reverse and
vacate the FRO.
We discern the following facts from the record. Plaintiff
and defendant were married on October 23, 2011. Plaintiff and
defendant were in the middle of a divorce when, on September 16,
2015, plaintiff went to the marital home to pick up some of her
personal belongings. The parties had arranged for plaintiff to
go to the house on September 16. Defendant attempted to cancel
the day before, but plaintiff went to the home anyway because she
had arranged for family members, as well as the police, to assist
her in moving. Plaintiff testified defendant did not know she
would be coming that day. Plaintiff was escorted to the marital
home by two North Wildwood police officers, as well as her
stepfather and a friend who both stayed outside the home while
plaintiff and the officers went inside. Defendant attempted to
refuse plaintiff entry, but one of the officers told defendant
plaintiff had a right to enter.
Plaintiff and defendant's accounts differ about what happened
inside. Plaintiff testified once inside she began packing items
into containers, but defendant grabbed her clothing, threw items
on the floor, and argued all of the items were his. She testified
defendant grabbed her arm and began yelling at her stepfather and
friend, telling them he would file a complaint against them.
Plaintiff described defendant as verbally aggressive and testified
she was holding a wicker basket that was her grandmother's and
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contained bed linens, and defendant attempted to grab it from her.
Plaintiff stated defendant stood in doorways and blocked her from
entering rooms. Later that day, plaintiff noticed a small cut on
her leg and filed for a Temporary Restraining Order. She testified
the restraining order is necessary due to defendant's
unpredictability. Additionally, she stated defendant previously
coerced her to keep her name on the marital home lease because he
was in the process of obtaining a green card; however, plaintiff
testified her name is no longer on the lease.
Defendant offered a different version. He testified he called
the North Wildwood police station to ask an officer to contact his
wife to see if she could come on a different date to pick up her
belongings. He was told plaintiff was fine with the arrangement;
however, plaintiff arrived on the previously scheduled day.
Defendant testified plaintiff's stepfather and friend began taking
his possessions from the walls and front porch. Defendant conceded
the wicker basket was plaintiff's but testified it contained his
towels and underwear. Defendant denied ever grabbing or harming
plaintiff and testified a mover subsequently removed all of
plaintiff's items from the house.
The trial judge granted plaintiff's application for an FRO,
finding defendant harassed plaintiff by impeding her access to the
marital home, as well as taking items from plaintiff's hands and
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throwing them. The judge made no credibility findings despite the
parties' differing accounts. Additionally, the trial judge found
defendant committed an assault when he grabbed her arm. The trial
judge stated on the record, "I find that there's ongoing
immigration proceedings which are a cause of some stress to the
defendant . . . which warrant the entry of an order in the favor
of the plaintiff." The trial judge also commented on his past
experiences with the parties, noting this was either the second
or third time he had seen them. The judge stated "defendant's
stubbornness and inability and unwillingness to let go" was an
additional reason to grant plaintiff's application for an FRO. At
the same hearing, the trial judge also granted a final judgment
of divorce.
On appeal, defendant argues the evidence adduced at trial is
insufficient to establish he violated one of the predicate offenses
as set forth in N.J.S.A. 2C:25-19(a). We agree.
We exercise a limited scope of review over a trial judge's
findings of fact. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of
Am., 65 N.J. 474, 484 (1974). We give due regard to the trial
judge's credibility determinations based upon the opportunity of
the trial judge to see and hear the witnesses. Cesare v. Cesare,
154 N.J. 394, 411-12 (1998).
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The New Jersey Prevention of Domestic Violence Act, N.J.S.A.
2C:25-17 to -35, defines domestic violence by a list of predicate
offenses found within the New Jersey Criminal Code. J.D. v.
M.D.F., 207 N.J. 458, 473 (2011). We have found the commission
of any one of the predicate offenses does not automatically mandate
entry of a domestic violence restraining order. Kamen v. Egan,
322 N.J. Super. 222, 227 (App. Div. 1999) (citing Corrente v.
Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995)).
A judge's review of a domestic violence complaint is two-
fold. Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006).
The first step is to "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. The acts claimed by "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." Corrente, supra,
281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29(a)(1) and (2)).
The second step asks whether, after finding the commission of a
predicate offense for domestic violence, "the court should enter
a restraining order that provides protection for the victim."
Silver, supra, 387 N.J. Super. at 126. Therefore, "the guiding
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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
-(6), to protect the victim from an immediate danger or to prevent
further abuse." Id. at 127. Those factors include:
(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).]
The predicate offenses found by the trial judge here are
harassment, N.J.S.A. 2C:25-19(a)(13), and assault, N.J.S.A. 2C:25-
19(a)(2). Harassment is defined, pursuant to N.J.S.A. 2C:33-4,
as
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
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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.
For a finding of harassment under N.J.S.A. 2C:33-4, the actor must
have the purpose to harass. Corrente, supra, 281 N.J. Super. at
249 (citing D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div.
1994)). Finding a party had the purpose to harass must be
supported by evidence the party's "conscious object was to alarm
or annoy; 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)). Additionally,
our courts must be mindful of cases involving "the interactions
of a couple in the midst of a breakup of a relationship." Ibid.
The evidence in the record does not establish defendant
harassed plaintiff pursuant to N.J.S.A. 2C:33-4. The relationship
between the parties was volatile but defendant's action on the day
plaintiff went to the martial home to pick up her belongings did
not constitute harassment. The trial judge found defendant
harassed plaintiff by impeding her access to the marital home and
taking items from plaintiff's hands and throwing them. However,
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without more, the record does not support a finding of harassment
pursuant to N.J.S.A. 2C:33-4. Plaintiff arrived at the marital
home a day before defendant believed she would be coming.
Defendant testified he called the North Wildwood police station
to move plaintiff's scheduled visit back a day in order for him
to clean up the house. Plaintiff knew defendant was not aware she
would be coming on September 16. The trial judge made an opaque
reference to prior applications for relief and made a conclusory
determination of harassment not anchored in detailed findings or
credibility determinations.
The trial judge also found assault. Assault is defined where
the actor
(1) Attempts to cause or purposely, knowingly
or recklessly causes bodily injury to another;
or
(2) Negligently causes bodily injury to
another with a deadly weapon; or
(3) Attempts by physical menace to put another
in fear of imminent serious bodily injury.
[N.J.S.A. 2C:12-1(a).]
Bodily injury is defined as "physical pain, illness or any
impairment of physical condition." N.J.S.A. 2C:11-1(a). "Not
much is required to show bodily injury. For example, the stinging
sensation caused by a slap is adequate to support an assault."
N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997).
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The trial judge found defendant assaulted plaintiff when he
grabbed her arm. While the facts may support defendant committed
assault by grabbing plaintiff's arm, causing her discomfort, which
could satisfy the first step in the Silver analysis, we do not
find a restraining order to be necessary to protect plaintiff from
further abuse. The second step in the Silver analysis asks whether
a restraining order "is necessary . . . to protect the victim from
an immediate danger or to prevent further abuse." Silver, supra,
387 N.J. Super. at 127. Plaintiff and defendant were granted a
final judgment of divorce, all plaintiff's belongings were removed
from the marital home, and plaintiff testified her name is no
longer on the lease. Additionally, the parties do not have
children. There is nothing in the record to demonstrate an ongoing
potential for contact and the record does not support the entry
of a FRO to protect plaintiff from further abuse.
Reversed, and the final order is vacated.
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