Opinion
DOCKET NO. A-4884-12T1
10-15-2015
M.D., Plaintiff-Respondent, v. G.D., Defendant-Appellant.
Scott Montgomery Kelly, attorney for appellant. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-771-13. Scott Montgomery Kelly, attorney for appellant. Respondent has not filed a brief. The opinion of the court was delivered by LEONE, J.A.D.
Defendant G.D. appeals from the grant of a final restraining order (FRO) precluding him from having contact with plaintiff M.D. Based on our standard of review, we affirm.
Where the record refers to defendant and plaintiff solely by their first names, we refer to them as "G." and "M." respectively.
I.
The evidence at the FRO hearing showed as follows. The parties married and had four children, with the youngest born in 1996. Plaintiff filed for divorce in April 2012.
Plaintiff obtained a temporary restraining order (TRO) in May 2012. Defendant then left the marital home. On June 28, 2012, plaintiff dismissed the TRO when the parties agreed to a consent order imposing civil restraints. The parties agreed that they would not harass, threaten, or annoy each other, and that there would "be no direct communication between the parties or through any third party . . . other than to discuss any issue which may arise as to the parties' children." Such communication was to be by email, or text message in an emergency.
On October 23, 2012, plaintiff filed a TRO complaint charging harassment and alleging that, on October 23,
ACCUSED SENT SEVERAL TEXT MESSAGES WHICH STATED HE STOPPED ALL PAYMENTS ON VICTIMS VEHICLE AND INSURANCE. STATED IT WOULD BEA TRO was granted that day. On December 10, 2012, plaintiff amended the TRO complaint to allege a prior history of domestic violence. The trial court heard two days of testimony, and issued its oral decision granting an FRO. Defendant appeals.
IN VICTIMS BEST INTEREST TO PUT HER ATTORNEY ASIDE AND THINK OF HER CHILDREN. STATED "CARE FREE [M.] CANNOT EXIST ANYMORE. REMEMBER YOUR ATTORNEY ARE NOT YOUR FRIENDS."
II.
Defendant claims "no reasonable trier of fact could have found plaintiff's testimony credible." However, we must hew to our deferential standard of reviewing a trial court's credibility findings.
"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Id. at 412 (citations and internal quotation marks omitted).
We must especially "defer to the trial court's credibility determinations. '[B]ecause it has the opportunity to make first-hand credibility determinations about the witnesses who appear on the stand; it has a "feel of the case" that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citations omitted).
Moreover, "[w]e accord particular deference to the judge's factfinding because of 'the family courts' special jurisdiction and expertise in family matters.'" Clark v. Clark, 429 N.J. Super. 61, 70 (App. Div. 2012) (quoting Cesare, supra, 154 N.J. at 413). We may reverse only if there is "a denial of justice because the family court's conclusions are clearly mistaken or wide of the mark." Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (citation, quotation and deletion marks omitted).
After seeing and hearing both parties testify, the trial court found plaintiff to be "very credible" and "completely credible." Defendant reiterates his counsel's closing argument attacking plaintiff's credibility, but the trial court considered and rejected those attacks. Defendant cites his own testimony, but the court did not find defendant as credible. We cannot say that the family court's credibility determinations were clearly mistaken or wide of the mark.
III.
Defendant also claims that no predicate act of harassment was alleged or proven. In fact, the TRO complaint alleged harassment. The harder issue is whether harassment was proven.
"Among the predicate offenses that may serve as the basis for domestic violence purposes, see N.J.S.A. 2C:25-19, one of the most frequently reported is harassment, N.J.S.A. 2C:33-4." J.D. v. M.D.F., 207 N.J. 458, 475 (2011). "At the same time, however, 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." Ibid. "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." Ibid. (quoting Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995)).
Plaintiff alleged only one predicate act: defendant's texts on October 23, 2012. The initial topic of the texts was the insurance policy on plaintiff's van. At 10:22 a.m., defendant texted: "Do not drive your van as the insurance policy has been canceled." When plaintiff said she had places to take the children, he said: "Rent a car or something or have your family drive them. The policy is cancel as of 12:01 this morning. Did u stop paying this policy." Plaintiff responded, "did u pay it? grow up, [G.]" Defendant replied, "I thought u were paying it." He added: "You need to grow up and accept your responsibilities. You can no longer expect everything to be paid by me." He concluded: "Care free [M.] cannot exist anymore." After five hours without a response, at 6:26 p.m. defendant texted: "The insurance policy will be back in effect 12:01 tomorrow."
Defendant testified that the policy went back into effect because he paid the insurance bill.
The trial court acknowledged that defendant's statement "Care free [M.] cannot exist anymore" could be viewed either as a threat to plaintiff's existence or as a reference to her allegedly carefree existence. However, plaintiff testified that the statement did not threaten her life or physical safety, and that she simply found it harassing. The court found defendant's "statement may not be life threatening in its intent, but it clearly was intended to upset, and annoy the plaintiff."
Defendant testified that during the marriage he called plaintiff "Carefree [M.]" after she quit her job and thereafter freely spent the money he earned.
The trial court concluded that defendant's texts about the insurance policy were part of a plan to harass plaintiff. Plaintiff testified that, without telling her, defendant had gone to the post office and requested that any mail addressed to him at the marital home be forwarded to his new address. The trial court found the following: defendant changed the mailing address so the auto insurance bills, apparently addressed to him, would go to him, not to plaintiff; he did not make the payments; and he did not warn her of his non-payment until the policy had been cancelled. The court found "there was absolutely no reason for this to have happened" except as defendant's "attempt to upset, alarm, [and] annoy" plaintiff, and then to act "like the hero" by paying the bill. "It was just a game. He was full on harassing the plaintiff in the Court's eyes[.]" The court found this was "[p]ure manipulation, pure harassment."
Moreover, defendant's October 23 texts went beyond auto insurance, and violated the civil restraints by addressing the divorce action. He asked why plaintiff's counsel adjourned the court case, adding: "Remember your attorney are not your friends. What is your bill at now." Defendant told plaintiff she had "made some very bold decisions" which could prevent her from receiving alimony or child support, "[s]o go get a job to support your children." He told her: "You need to put you and your attorneys dislike of me aside and think about the childrens best interest." He continued: "Whom do u trust me or [her counsel] to provide for your children. [Your counsel] will leave you broke. Smarten up."
Plaintiff testified this referred to her reporting that defendant violated the May TRO by going to their daughters' recital on June 11, 2012. Defendant was later acquitted of the resulting criminal charge in Middlesex County.
The trial court found defendant was "berating" plaintiff for hiring and spending money on lawyers. The court found the texts' tone to be "threatening." The court concluded that "the ongoing banter that he was subjecting [plaintiff] to with regard to the car insurance was sufficient to warrant the Court finding a predicate act" of harassment.
We consider whether the evidence was sufficient to satisfy the harassment statute. The pertinent subsection states that a person commits harassment "if, with purpose to harass another, he[] [m]akes, 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." N.J.S.A. 2C:33-4(a).
Subsection (a) is "'aimed, not at the content of the offending statements but rather at the manner in which they were communicated.'" State v. Hoffman, 149 N.J. 564, 583 (1997) (citation omitted). The Supreme Court in Hoffman noted that by proscribing communications that are "sent anonymously, or at an extremely inconvenient hour, or in offensively coarse language," subsection (a) precluded "three types of communication [that] properly can be classified as being invasive of the recipient's privacy." Ibid. Likewise, the court reasoned that the phrase "any other manner likely to cause annoyance or alarm," N.J.S.A. 2C:33-4(a), encompasses only those modes of communicative harassment that "are also invasive of the recipient's privacy." Hoffman, supra, 149 N.J. at 583. "Speech that does not invade one's privacy . . . does not lose constitutional protection even when it is annoying." Id. at 583-84.
Thus, "'in enforcing subsection (a) of the harassment statute, we must focus on the mode of speech employed.'" C.M.F. v. R.G.F., 418 N.J. Super. 396, 403 (App. Div. 2011) (quoting Hoffman, supra, 149 N.J. at 583). Texting is not in itself an invasion of privacy. See L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 534-36 (App. Div. 2011) (finding that sending eighteen text messages within five hours was not harassment). However, texting can constitute an invasion of privacy in some circumstances. See Pazienza v. Camarata, 381 N.J. Super. 173, 178, 184 (App. Div. 2005) (finding the defendant's evening text to a former girlfriend that "I can see you are watching Desperate Housewives now" intruded upon her "legitimate expectation of privacy" because it suggested he was watching her in her home).
Here, defendant sent twelve texts within eight hours, in his own name, in a non-coarse language, between 10:22 a.m. and 6:26 p.m. Normally, that alone would not constitute an invasion of plaintiff's reasonable expectation of privacy. As plaintiff herself admitted, defendant's remark that "Care free [M.] cannot exist anymore," read in context, cannot be regarded as a threat. See Peranio v. Peranio, 280 N.J. Super. 47, 55-56 (App. Div. 1995) (noting that a defendant's comment, "I'll bury you," must be evaluated in context). Defendant's commentary on the divorce is not threatening, and even if annoying, is not itself an invasion of privacy. See, e.g., Hoffman, supra, 149 N.J. at 570, 585 (holding "the act of mailing a torn-up support order on two occasions by one former spouse to the other" did not "constitute[] a violation of the harassment statute"); Bresocnik v. Gallegos, 367 N.J. Super. 178, 183 (App. Div. 2004) (holding "a single hand-delivered letter to a work place does not illegally invade privacy").
Even defendant's short-lived "game" was not itself sufficient to make the October 23 texts violative of subsection (a). We have held that a defendant's "childish" actions in turning off the plaintiff's phone service without giving her notice, "which plaintiff remedied immediately by having the phone service restored in her own name, were [not] acts which can be characterized as alarming or seriously annoying." Corrente, supra, 281 N.J. Super. at 249. We have similarly held that a defendant's phone call to the plaintiff informing her he had moved her desk out of the shared office and into the living room was not violative of subsection (a) as it was not "done in a manner likely to cause annoyance or alarm." L.D. v. W.D., Jr., 327 N.J. Super. 1, 5 (App. Div. 1999).
Unlike those cases, however, defendant and plaintiff had agreed to civil restraints barring communication directly between them, or indirectly through a third party, except for issues relating to the children. Moreover, plaintiff proved that defendant had repeatedly violated those civil restraints. In her amended TRO complaint, plaintiff alleged that, before he sent the October 23 texts, defendant violated the civil restraints when: he copied her on a July 30, 2012 email attaching a letter to her counsel "to make sure you and your client gets the documentation;" sent her an August 2012 email about the divorce; sent her a September 30, 2012 email precluding her from contacting a business associate; and sent her an October 4, 2012 email demanding the return of business equipment. The trial court found that defendant frequently sent plaintiff emails violating the civil restraints, that his intention was to harass plaintiff, and that his October 23 texts were part of "an ongoing pattern of harassment."
Several of defendant's emails were clear violations of the spirit as well as the letter of the civil restraints. He emailed plaintiff that her divorce "lawyers are not your friends," that she should not let them tell her what to do like "a sheep," and that one of her lawyers "is a lying scumbag." He made similar statements in his emails that he directed to plaintiff's counsel and that he copied to plaintiff. He demanded to know how much plaintiff was paying in counsel fees. The trial court found the emails were harassing in nature. Indeed, plaintiff testified she found defendant's contacting her was itself harassing given the civil restraints.
Defendant's October 23 texts were further violations of the letter and the spirit of the civil restraints. They again criticized plaintiff for spending money on lawyers and trusting her counsel, and raised various issues about the divorce clearly beyond the scope of the children-only communications permitted by the civil restraints. Moreover, the trial court found that defendant's texts regarding the auto insurance, which plaintiff was initially glad to get because cancellation of the auto insurance would "affect the children," were really a "game" intended to harass and annoy plaintiff, a violation of at least the spirit of the civil restraints.
We have held that a plaintiff may present evidence of the defendant's "past and present violations of the matrimonial restraints" to show a violation of subsection (a). N.B. v. S.K., 435 N.J. Super. 298, 300, 307 (App. Div. 2014).
Plaintiff was entitled to submit evidence of the past violations of the matrimonial restraints, not because the violations of those orders are per se "acts of domestic violence" — they are not — but because those past violations support the claim that defendant engaged in acts of harassment by making communications "with purpose to alarm or seriously annoy." That evidence explains why the recipient would be alarmed or seriously annoyed by the communications.
[Id. at 307-08.]
Thus, in N.B., we found defendant's conduct in leaving five voice messages in violation of the matrimonial restraints could be harassing under subsection (a) "even though they were not anonymous, or made at inconvenient hours, or expressed in coarse language." Id. at 307. "Whether the five voice messages in question were meant to or did in fact alarm or seriously annoy plaintiff, thereby warranting entry of the FRO plaintiff sought, can only be fairly understood in light of th[e] history" of the defendant's violation of the matrimonial restraints. Ibid.
Similarly, evidence of the violation of civil restraints can be used to show that a defendant is using "modes of communicative harassment that 'also are invasive of the recipient's privacy.'" See Cesare, supra, 154 N.J. at 404 (quoting Hoffman, supra, 149 N.J. at 583-84). Civil restraints are intended to create a legitimate expectation of privacy. A defendant's history of frequent, unprovoked, and egregious violations of those restraints can show that the predicate acts are as invasive of the plaintiff's reasonable expectation of privacy, and are reasonably considered as alarming and annoying, as communicating "anonymously or at extremely inconvenient hours, or in offensively coarse language." N.J.S.A. 2C:33-4(a).
The history of violations of civil restraints here was much less sustained or severe than in N.B. There, throughout a decade, the "defendant violated the matrimonial restraints at various times by placing numerous telephone calls to plaintiff and by sending emails to every known email address for plaintiff." N.B., supra, 435 N.J. Super. at 301. The "defendant repeatedly was ordered not to communicate with plaintiff in that fashion and repeatedly violated those orders." Id. at 307. We noted that the defendant's voice messages "might not have been more than 'ordinary domestic contretemps' if occurring during the dissolution of the parties' marriage." Ibid. Here, defendant's texts occurred in the midst of the divorce proceedings, when the civil restraints had been in place for only four months, and no court orders enforcing the restraints had been issued. Thus, defendant's history of violation of civil restraints is not in itself sufficient to show that his October 23 texts violate subsection (a).
However, a "history of domestic violence may serve to give content to otherwise ambiguous behavior and support entry of a restraining order." J.D., supra, 207 N.J. at 483. The trial court found that the October 23, 2012 texts were "just the latest in the [ongoing] pattern of harassment." Relying on plaintiff's testimony about the prior acts alleged in the amended TRO complaint, the court found the following:
Defendant slapped plaintiff's face in February 2012, and kicked her in the arm in March 2012. Also in March, defendant sent an email to the Matawan Police Department, stating that plaintiff was unable to perform even simple tasks, and indirectly but intentionally copied plaintiff.
In May 2012, in the evening after he "caused a scene" at the office of plaintiff's attorney, defendant "tucked [plaintiff] in" by putting the blanket on her, which the trial court found was "absolutely unwelcome." When plaintiff asked defendant to leave her alone, he said "I will never leave you alone." She testified his comment was scary and made her afraid of what he could do. The court stated this comment was "critical in the Court's decision making in that he tells her that he's not going to stop, and nor does he."
Also in May 2012, defendant took both sets of plaintiff's keys and hid them. Defendant only returned the keys after the police arrived. The trial court found defendant's conduct was "just another way for the defendant to control the plaintiff."
Defendant testified that plaintiff had told him that she was molested as a child. The trial court found defendant repeatedly "told the plaintiff he would tell her family about her prior history . . . just to annoy her." In June 2012, defendant told one of the children that plaintiff had been molested as a child by her grandfather. The trial court found "the only reason to do that was . . . to harass the plaintiff, [] through a third party knowing it would get back to the plaintiff, and cause her great upset." In the letter he sent to plaintiff with his July 30 email, defendant told plaintiff's counsel that plaintiff "was severely abused as a child from her grandfather." The court found that defendant sent the letter "for no reason except but to upset the plaintiff."
Plaintiff also testified about alleged harassment that occurred after the October 23 texts. Such "subsequent history" can be "offered for similar purposes" as prior history, so long as sufficient notice is given to the opposing party. H.E.S. v. J.C.S., 349 N.J. Super. 332, 341 (App. Div. 2002), rev'd on other grounds, 175 N.J. 309, 319 (2003). Here, plaintiff listed in the amended TRO complaint that after the TRO was issued, plaintiff saw defendant driving by her house slowly. The trial court found defendant did so "with no purpose other than to make his presence known to the plaintiff as a means of harassment."
Also, defendant admitted that around Christmas 2012, he contacted the Division of Child Protection and Permanency, and revealed that plaintiff had been molested as a child. This caused a Division representative to come to plaintiff's house on the day before Christmas to check on the children's safety, and to ask plaintiff about her being molested as a child. The trial court found defendant's report to the Division "was not a legitimate complaint" and that he "reported the plaintiff for no other reason other than to harass her."
Based on the history of these incidents, the trial court found defendant intentionally engaged in "an ongoing pattern of harassment" over "an extended period of time." The court also found that the October 23 texts were part of this ongoing campaign of harassment.
Considering together defendant's history of domestic violence, his history of violating the civil restraints, and the October 23 texts and the "game" they advanced, we conclude that together they are sufficient to show his October 23 texts violated plaintiff's reasonable expectation of privacy and were "likely to cause annoyance or alarm."
In reaching our conclusion, we do not consider some of the factors advanced by the trial court. For example, that court cited that "Carefree [M.]" was "not the way you talk about your wife," and that it and other remarks by defendant were "snotty," "insulting," "demeaning," "sarcastic," and "rude." "Not all offensive or bothersome behavior, however, constitutes harassment." J.D., supra, 207 N.J. at 483. "Nor are a plaintiff's mere assertions that the conduct is harassing sufficient." Id. at 484. Similarly, we do not consider the unproven allegation that defendant harassed plaintiff in the Middlesex courthouse on October 2012, and the untenable claim that defendant made harassing comments on his business website. --------
Here, there was no dispute defendant sent the October 23 texts, and the trial court's finding that he did so with the intent to harass is not clearly mistaken. Because we conclude that texts were likely to cause annoyance and alarm, we find that the evidence narrowly suffices to show the predicate act of harassment under N.J.S.A. 2C:33-4(a).
Next, we consider "the statutory requirement that there be a finding that 'relief [is] necessary to prevent further abuse.'" J.D., supra, 207 N.J. at 476 (quoting N.J.S.A. 2C:25-29(b)). In this second inquiry, "'the guiding 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 -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse.'" Id. at 475-76 (quoting Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006)).
The trial court was satisfied that defendant's "ongoing pattern of harassment against the plaintiff" was "in no way, domestic contretemps." The court found that the history of domestic violence proven by plaintiff demonstrated that defendant "can be physically violent" and that "he will never leave her alone." The court found that plaintiff was understandably "afraid of what the defendant would do," and was "in a constant state of distress." The court also found that she was not seeking an FRO "for any reason other than to stop an ongoing pattern of harassment." The court concluded plaintiff had "amply demonstrated" an FRO was needed to prevent further abuse under Silver.
In upholding this conclusion, as well as the trial court's conclusion that plaintiff established the predicate act of harassment, we are guided by our Supreme Court's admonition that "the decision about whether a particular series of events rises to the level of harassment or not is fact-sensitive," and small differences in fact or context, "particularly if based on a history between the parties, may move what otherwise would appear to be non-harassing conduct into the category of actions that qualify for issuance of a restraining order." J.D., supra, 207 N.J. at 484. "In our efforts to be faithful to the strong expressions of our Legislature and to protect the rights of both parties we have vested great discretion in our Family Part judges." Id. at 482. They "have been specially trained to detect the difference between domestic violence and more ordinary differences that arise between couples, and we have recognized that their findings are entitled to deference." Ibid. Here, we uphold the trial court's conclusions based on our obligation to give "deference to the trial court's findings." Cesare, supra, 154 N.J. at 416.
IV.
Defendant also argues that some testimony was received when he and his counsel were not present. Towards the end of the second day of the FRO hearing, after both parties had given their testimony on whether an FRO should be entered, the court related the first part of its oral opinion, but had to stop because it had to shut down the courtroom. Before leaving, the court announced to the parties that it was entering an FRO, and that it would continue putting its opinion and the FRO on the record the following week at a time convenient for plaintiff, defendant, and defendant's counsel. They agreed, and selected a time that was "good for everybody." The court said they "can be present or not present" as they desired, or they could appear by telephone.
At the agreed-upon time, plaintiff appeared. Defendant did not appear. Defendant's counsel had asked to appear by phone, but did not call the court to participate. Court staff called counsel, and got only a message that his voice mailbox was full. Noting that defendant and his counsel could get a transcript and a voice recording, the court delivered the rest of its opinion granting the FRO.
The TRO had listed all four children and prohibited defendant from having contact with the "children listed." In reciting the restrictions imposed by the FRO, the trial court asked "are the children on this?" Plaintiff responded that "[a]ll four children should be on that," and described recent texts from defendant to the children. The court stated that the children would be protected by the FRO, and that defendant could "make an application if he wants to have any contact with them." After further discussions about the restrictions, the court finished announcing the FRO.
Defendant contends it was improper for the trial court to receive "testimony" that resulted in a prohibition on contacting his children. However, plaintiff was representing herself, and was permitted to make oral requests for relief. Even treating plaintiff's comments as testimony, defendant's claim fails.
Defendant was on notice from the TRO and from the Act itself that the trial court could order numerous forms of restrictions and relief, including restrictions on custody, parenting time, and contact with the children. See, e.g., N.J.S.A. 2C:25-29(b)(3), (7), (11). Indeed, the Act warned that the FRO court may grant "any other appropriate relief for the plaintiff and dependent children, provided that the plaintiff consents to such relief, including relief requested by the plaintiff at the final hearing, whether or not the plaintiff requested such relief at the time of the granting of the initial emergency order." N.J.S.A. 2C:25-29(b)(14) (emphasis added).
Despite that notice, and the trial court's invitation to appear in person or by phone, defendant chose not to appear at all. Even a criminal defendant, who by rule and by constitutional right must "be present at every stage of trial," waives his "right to be present at trial" by voluntarily absenting himself after "trial has commenced in defendant's presence." R. 3:16(b); see State v. Finklea, 147 N.J. 211, 215-18 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997) (noting that, otherwise, defendants could "halt trials merely by absenting themselves"). Defendant cannot complain about his own voluntary choice to be absent.
Defendant's counsel similarly chose not to appear in person, and ultimately did not appear by phone. No adjournment was requested. It was not unfair or contrary to due process for the trial court to proceed in those circumstances.
Moreover, as the trial court pointed out on the record and in the FRO, defendant has the opportunity to file a motion to have contact with his children. He has not claimed he has been denied that opportunity.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION