DOCKET NO. A-1652-14T2 DOCKET NO. A-5630-14T2
Scholl, Whittlesey & Gruenberg, LLC, attorneys for appellant in A-1652-14 (Franklin G. Whittlesey, on the brief). T.C., appellant pro se in A-5630-14. Einhorn, Harris, Ascher, Barbarito & Frost, PC, attorneys for respondent in A-1652-14 and A-5630-14 (Jennie L. Osborne, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-0073-15. Scholl, Whittlesey & Gruenberg, LLC, attorneys for appellant in A-1652-14 (Franklin G. Whittlesey, on the brief). T.C., appellant pro se in A-5630-14. Einhorn, Harris, Ascher, Barbarito & Frost, PC, attorneys for respondent in A-1652-14 and A-5630-14 (Jennie L. Osborne, on the brief). PER CURIAM
In these two appeals, calendared back-to-back and consolidated for purposes of this opinion, defendant T.C. appeals from an October 23, 2014 final restraining order (FRO) entered in favor of plaintiff S.C. pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant also appeals from the Family Part's June 30, 2015 order granting plaintiff $35,859.92 in counsel fees and costs, and ordering defendant to reimburse plaintiff for $936.86 in out-of-pocket expenses she incurred to repair damages that defendant caused in the home. We affirm both orders.
We derive the following facts from the record. The parties were married in 1994 and have three children. On April 23, 2014, plaintiff filed a complaint for divorce. At that time, the parties continued to live together in the marital home, which they jointly owned.
The matter was tried before Judge William A. Daniel on eleven non-consecutive dates between July 21, 2014 and October 23, 2014.
In the beginning of May 2014, defendant put a GPS tracking device on plaintiff's car without her knowledge. Defendant testified that this device enabled him to monitor the location of the car on his cell phone. On May 26, 2014, defendant saw that plaintiff's car was in a parking lot. Defendant went to that location and found plaintiff sitting in her co-worker's car, which was parked next to plaintiff's vehicle. Plaintiff testified that she met the co-worker for coffee and they had just returned to the parking lot in his car. Plaintiff testified that defendant got out of his car and "repeatedly banged" on the car window. Addressing plaintiff, defendant shouted, "You're dead. You're dead." Plaintiff stated that defendant also threatened the co-worker. Defendant admitted confronting plaintiff in the car, but denied threatening her or the co-worker.
The next day, plaintiff applied for, and was granted, a temporary restraining order (TRO) against defendant based upon the incident in the parking lot. Prior to trial, however, the parties entered into a consent agreement on June 5, 2014. Under the terms of the agreement, the parties agreed to "mutual civil restraints." They were only allowed to contact each other by email.
The consent agreement was embodied in an order, which was filed in the divorce action. Separately, plaintiff voluntarily dismissed the May 27, 2014 TRO.
The agreement stated that plaintiff would have possession of the marital home, and the parties agreed to list the property for sale no later than July 10, 2014. Defendant agreed to continue paying the gas, electric, cable television, and internet bills. Defendant was only allowed to come to the home to have parenting time with the children on Tuesdays and Thursdays, between 4:00 p.m. and 7:00 p.m., and on either Saturday or Sunday between 10:00 a.m. and 7:00 p.m. Plaintiff agreed to absent herself from the home during these periods. The agreement provided that plaintiff was permitted to lock the master bedroom and that defendant was not to access it while in the home for his parenting time.
On June 22, 2014, plaintiff discovered that the wires of the treadmill she kept in the basement of the home had been cut, rendering it inoperable. Two days later, the wires to the garage door were also cut, and the home could not be secured. Plaintiff stated that defendant had access to the home on both dates for his parenting time. Defendant denied cutting the wires on the treadmill and the garage door. However, defendant admitted that, on May 27, 2014, he broke the lock of a door leading from the garage into the home by hitting it with a hammer and screwdriver.
Plaintiff testified that, on June 28, 2014, she went to one of the children's baseball games. Defendant sat near her and, after hearing defendant "talking negatively" about her to someone on his cell phone, plaintiff got up and began walking toward her car. Plaintiff stated that defendant followed her and said, "[Y]ou're lucky I haven't killed you yet." This frightened plaintiff and, thereafter, she did not attend any more games. Defendant admitted seeing plaintiff at the game, but denied speaking to her.
On July 3, 2014, defendant sent plaintiff an email stating, "I'm calling DYFS, you've obviously lost your mind and are an unfit mother." He also threatened to have plaintiff arrested if she took a cell phone away from one of the children. Defendant testified that he did not intend to harass plaintiff by sending her this email. Instead, defendant explained that one of the parties' children told him that plaintiff "was freaking out because [defendant] had said that [he] was possibly going to call" the Division. Therefore, he sent a second email to plaintiff that stated, "You should be freaking out. I am going to do every thing I can to get those kids." On July 8, 2014, defendant copied plaintiff on emails he exchanged with this attorney, which included a discussion of contacting the Division. On July 9, 2014, defendant sent plaintiff another email indicating that the Division might become "involved" in their situation.
At that time, the name of the agency formerly known as "DYFS" had been changed to the Division of Child Protection and Permanency (the Division).
On July 10, 2014, defendant was in the parties' home for his parenting time. On that date, defendant, who was a licensed electrician, dismantled parts of the home's central air conditioning system. He then put a padlock on the outside breaker box so that it could not be opened. While defendant was in the home, plaintiff called one of the parties' children. As she was talking to the child, she heard "defendant in the background[,] screaming[,] 'Say hello to your mother, I hope she's happy without air conditioning[.]'" Defendant also screamed "'that every day [plaintiff] stays in the house[,] there's going to be another thing, it'll be the . . . cable, the . . . phone, and then the lights.'" Defendant denied screaming anything over the telephone. He testified that his child was "a liar, and he would lie for his mother[.]"
However, defendant admitted to dismantling the air conditioning system and rendering it inoperable. He also admitted that he broke the lock on the door of the master bedroom. Defendant alleged that he did not intend to harass plaintiff by doing so. With regard to the air conditioning system, defendant explained that he was merely upset that plaintiff had not yet listed the home for sale. Defendant also stated that he believed that "the central air was running" all the time; it was a "luxury that was not necessary"; and he wanted "[t]o try and save on the electricity bill." Defendant also alleged that he broke the lock on the bedroom door only because he needed to pick up a suit for a party that he was supposed to attend.
However, the record indicates that defendant did not sign the listing agreement required to place the home on the market until July 13, 2014.
Although defendant alleged he was concerned that plaintiff "was utilizing too much electricity," he admitted that the house was on a "budget plan with the utility company, so [he paid] an equal amount each month[.]"
Plaintiff spoke to the police and two officers came to the home. At the trial, both officers confirmed that they found the air conditioning system inoperable and the outside breaker box padlocked. Sometime after midnight on July 11, 2014, two Division caseworkers appeared at plaintiff's home and conducted a safety check of the children. Despite his prior emails, defendant testified that he "did not personally" call the Division to go to the home.
At 6:20 a.m. on July 11, 2014, defendant sent plaintiff an email that stated he would "be at the house whenever I want until the house is listed. If you're not going to abide by the agreement, [n]either am I. Any attempt you make to turn the [air conditioning system] back on will be at your own expense." In spite of defendant's threat, plaintiff arranged to have the central air conditioning system repaired. She then went to the courthouse to obtain a TRO against defendant.
While plaintiff was at the courthouse, defendant entered the home and began dismantling the central air conditioning system again. Under the terms of the parties' agreement, he was not supposed to be in the house that day. After plaintiff obtained the TRO, she returned to the home with the police. Defendant testified that when he saw the officers outside the house, he cut the wires of the air conditioning system because he no longer had time to dismantle it as he had the day before. The officers found the wire cutters in defendant's pocket. Plaintiff had to retain another electrician to repair the system and restore it to working order.
Throughout the trial, plaintiff testified in detail as to how frightened and upset she was because of each of defendant's actions. She stated that she also feared for the safety of her children.
Following oral argument at the conclusion of the trial, Judge Daniel rendered a thorough oral decision. The judge found that "plaintiff's testimony [was] credible in all critical aspects of this case." On the other hand, the judge found that defendant was not credible. Thus, the judge concluded that the incidents outlined above occurred in the manner plaintiff described in her testimony.
The judge granted plaintiff's request for a FRO against defendant based on criminal mischief and harassment. The judge found that the parties jointly owned the home and that, pursuant to their consent agreement, plaintiff was to have possession of the property during the pendency of the divorce action. Yet, defendant dismantled the air conditioning system on July 10, 2014, causing plaintiff to incur the cost of having it repaired. Early the next morning, he warned plaintiff that he would return to the house any time he wanted and that if she attempted to turn on the air conditioner, it would be at "her own expense." As threatened, defendant returned later that day and again damaged the system by cutting the wires.
The judge found that these were not defendant's first acts of criminal mischief at the home. He noted that defendant had previously cut wires on the garage door and the treadmill, which rendered them inoperable. Defendant also broke two door locks, including the one on plaintiff's bedroom door.
The judge found that defendant committed these acts of destruction with the purpose of harassing plaintiff. In addition, given the past history of the parties, the judge found that when defendant told plaintiff, "you're lucky I haven't killed you yet[,]" and screamed on the phone, on another occasion, that he was going to take away specific utility services (cable, telephone, and lights) from her and the children, he did so "with the purpose to harass her, annoy her, to bother her, to intimidate her." Therefore, the judge concluded that defendant also committed the predicate act of harassment.
As to whether a FRO was needed, Judge Daniel found that, under all the circumstances presented, plaintiff was "in fear of her safety[,]" and "terrified" of defendant. After reviewing the entire history of domestic violence presented by plaintiff, the judge concluded that a restraining order was "necessary to protect . . . plaintiff from further acts of domestic violence, further acts of harassment[,] and criminal mischief at the very least."
Following the judge's decision, plaintiff moved for an award of counsel fees and costs in the amount of $44,256.42. She also sought reimbursement for $938.86 she spent to repair the damages defendant caused to the home, and for an award of punitive damages. Defendant opposed plaintiff's motion, and asked that the court order plaintiff to pay $26,142.50 in counsel fees and costs to him. Both parties submitted detailed attorney certifications detailing their expenditures.
Following oral argument, Judge Daniel entered an order on June 30, 2015, awarding plaintiff $35,859.92 in counsel fees and costs. He also ordered defendant to reimburse plaintiff for the $936.86 she spent on home repairs. The judge denied plaintiff's request for punitive damages and defendant's motion for counsel fees.
In a detailed oral opinion, the judge reviewed each entry on plaintiff's attorney's certification of services and the repair bills. Although the judge reduced some of the hours plaintiff's attorney certified she spent on the case, the judge determined that the hours and fees he allowed were reasonable, and were incurred as the direct result of the domestic violence committed by defendant.
On appeal, defendant argues that the trial judge erred in concluding that he committed the predicate acts of criminal mischief and harassment. He also asserts that "there was no objective basis for . . . plaintiff to fear for her safety" and, therefore, a FRO was not necessary. Finally, defendant contends that the judge's "award of counsel fees was not justified, overly burdensome[,] and unreasonable." We disagree with all of these contentions and affirm, substantially for the reasons set forth by Judge Daniel in his two comprehensive oral decisions.
Our review of a trial judge's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A judge's fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.
"Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). This is so because the judge has the opportunity to see and hear the witnesses as they testify, thereby developing 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. G.M., 198 N.J. 382, 396 (2009) (quoting D.Y.F.S. v. E.P., 196 N.J. 88, 104 (2008)). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
In adjudicating a domestic violence case, the trial judge has a "two-fold" task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). The judge must first determine whether the plaintiff has proven, by a preponderance of the evidence, that the defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-19(a), which incorporates criminal mischief, N.J.S.A. 2C:17-3, and harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. Id. at 125-26. The judge must construe any such acts in light of the parties' history to better "understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim's continued fear of the perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); N.J.S.A. 2C:25-29(a)(1).
If a predicate offense is proven, the judge must then assess "whether a restraining order is necessary, upon an evaluation of the facts set forth in N.J.S.A. 2C:29(a)(1) to - 29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting Silver, supra, 387 N.J. Super. at 126-27). Whether a restraining order should be issued depends on the seriousness of the predicate offense, on "the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment[,] and physical abuse," and on "whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995) (citing N.J.S.A. 2C:25-29(a)); see also Cesare, supra, 154 N.J. at 402.
Applying these standards to the arguments raised by defendant, we discern no basis for disturbing Judge Daniel's decision to grant an FRO to plaintiff. First, there was substantial credible evidence in the record to support the judge's finding that the first Silver prong was satisfied because defendant committed acts of criminal mischief and harassment against plaintiff.
N.J.S.A. 2C:17-3(a)(1) provides in pertinent part that "[a] person is guilty of criminal mischief if he . . . [p]urposely or knowingly damages tangible property of another . . . ." The term "'[p]roperty of another' includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property . . . ." N.J.S.A. 2C:20-1(h). Thus, in N.T.B. v. D.D.B., 442 N.J. Super. 205, 219 (App. Div. 2015), we recently held that married parties who jointly own a home each hold "a separate and distinct interest" in the residence. Therefore, if one party "purposely or knowingly damages" that property, he or she has committed the predicate act of criminal mischief. Id. at 219-20.
Here, defendant admitted that he took apart the central air conditioning system on July 10, 2015 and, when he returned the next day, he cut the wires on it. Defendant previously damaged a treadmill, the garage door, and two interior doors, and warned plaintiff that he would return to the home whenever he wanted. The judge concluded that defendant damaged the air conditioning system for the purpose of harassing plaintiff, rather than to reduce the parties' utility bills, and we defer to his credibility determination on this point.
On appeal, defendant argues that plaintiff did not prove that she jointly owned the home with him. However, under direct examination by his attorney on September 15, 2014, defendant testified that he and his wife owned the home jointly. In addition, under the terms of the parties' consent agreement, plaintiff was to have "possession of [the] house pending final resolution[.]" Finally, the listing agreement required the signature of both parties before the home could be placed on the market. Therefore, we reject defendant's contention on this point.
The judge also properly concluded that defendant harassed plaintiff. N.J.S.A. 2C:33-4 defines harassment, in relevant part, 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; [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.
Proof of a purpose to harass is an essential element of N.J.S.A. 2C:33-4. See L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). "A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)). There must be proof that a defendant's conscious object was to "harass," that is, "annoy," "torment," "wear out," or "exhaust." State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (quoting Webster's II New College Dictionary 504 (1995)), certif. denied, 188 N.J. 577 (2006). Merely knowing that someone would be annoyed, as opposed to having a conscious objective to annoy, is insufficient to prove a purpose to harass. See State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).
"A finding of a purpose to harass may be inferred from the evidence presented[,]" and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577. Because direct proof of intent is often absent, "purpose may and often must be inferred from what is said and done and 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; see also State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995) ("While [the appellate court] might or might not have made the same inferences, [its] role is one of determining whether the trial judge's inferences were rationally based on evidence in the record.").
Here, the judge focused on subsection (a) of the statute in his opinion. The judge found that plaintiff credibly testified that defendant came up behind her at their child's baseball game and told her, "[Y]ou're lucky I haven't killed you yet." This threat came on the heels of defendant confronting plaintiff and her co-worker in her co-worker's car, where he banged on the window of the vehicle and made a similar statement. On July 10, 2014, defendant also screamed over the phone that he was going to take away plaintiff's utility services one by one and, the next morning, warned that he was going to return to the home whenever he wanted to.
Contrary to defendant's arguments, these chilling statements did not constitute mere marital contretemps. Instead, as Judge Daniel found after assessing the credibility of the parties, defendant's purpose was to cause plaintiff "annoyance and alarm" within the intendment of N.J.S.A. 2C:33-4(a).
In addition, we are satisfied that defendant's conduct was also covered by subsection (c) of the statute, because he engaged in a "course of alarming conduct . . . with [the] purpose to alarm or seriously annoy" plaintiff. Defendant twice rendered the air conditioning system inoperable in the middle of the summer. He threatened to continue to do so. Defendant also broke the treadmill, the outside garage door, and the locks on the garage and bedroom doors. As the judge found, defendant's purpose in doing so was clear; he wanted to alarm and seriously annoy plaintiff. These acts of repeated criminal mischief, coupled with defendant's threats against plaintiff, clearly constituted the predicate act of harassment.
Turning to the second prong of the Silver test, there is substantial evidence in the record to support Judge Daniel's conclusion that a FRO was needed to protect plaintiff. Plaintiff credibly testified that she was terrified of defendant as the result of his actions. Defendant also made it clear that, despite the consent agreement and the involvement of the police on July 10, 2014, he would continue his course of conduct. Under these circumstances, the entry of a FRO was needed to protect plaintiff from further acts of domestic violence. Therefore, we affirm the judge's October 23, 2014 decision granting a FRO to plaintiff.
We also affirm the judge's June 30, 2015 order granting counsel fees, costs, and reimbursement for out-of-pocket expenses to plaintiff. As part of the award for relief in a domestic violence matter, the court may enter an order "requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence." N.J.S.A. 2C:25-29(b)(4). The award is designed to make the victim whole. Thus, it is not subject to the traditional analysis for family-type claims pursuant to N.J.S.A. 2A:34-23, and the court is not obliged to consider the parties' financial circumstances. See McGowan v. O'Rourke, 391 N.J. Super. 502, 507 (App. Div. 2007); see also Wine v. Quezada, 379 N.J. Super. 287, 292 (Ch. Div. 2005).
Accordingly, the only three requirements for an award of counsel fees under the PDVA are that the fees be the direct result of domestic violence, that they be reasonable, and that they be presented by way of affidavit pursuant to Rule 4:42-9(b). Grandovic v. Labrie, 348 N.J. Super. 193, 196 (App. Div. 2002) (citing Schmidt v. Schmidt, 262 N.J. Super. 451, 454 (Ch. Div. 1992)). Moreover, "an award of attorney's fees continues to rest within the discretion of the trial judge." McGowan, supra, 391 N.J. Super. at 508 (citing Packard-Bamberger & Co. v. Collier, 167 N.J. 27, 443-44 (2001)). "'[D]eterminations by trial courts [regarding legal fees] will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion.'" Packard-Bamberger, supra, 167 N.J. at 444 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
In his ruling on plaintiff's request for counsel fees, costs, and reimbursement for the damage defendant caused at the home, the judge found that plaintiff was a victim of domestic violence and that she would not have incurred these expenses if defendant had not committed acts of domestic violence against her. With regard to the reasonableness of the amount plaintiff sought, the judge painstakingly reviewed plaintiff's attorney's certification of services and the repair bills plaintiff paid. After making some revisions in the total amount plaintiff sought, the judge awarded plaintiff $35,859.92 in counsel fees and costs, and $936.86 for the repairs to the home. Given the circumstances of this case, which included a multi-day trial, we are satisfied that the judge's determination on this issue was reasonable and justified.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION