Opinion
DOCKET NO. A-2902-13T4
01-07-2015
M.P., Plaintiff-Respondent, v. K.K., Defendant-Appellant.
Simon Law Group, attorney for appellant (Ron Reich, of counsel and on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi, and Kennedy. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0323-13. Simon Law Group, attorney for appellant (Ron Reich, of counsel and on the brief). Respondent has not filed a brief. PER CURIAM
Defendant appeals a final restraining order entered against her under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Plaintiff, defendant's brother, obtained the order after the Family Part found defendant committed an act of harassment against him. See N.J.S.A. 2C:33- 4 (defining harassment); N.J.S.A. 2C:25-19 (defining harassment as an act of domestic violence).
Defendant raises the following arguments on appeal:
POINT I: THE TRIAL COURT ERRED IN DETERMINING THAT THERE WAS JURISDICTION TO HEAR THIS CASE.
POINT II: THE TRIAL COURT ERRED IN FINDING THAT THERE WAS A PREDICATE ACT ON WHICH TO BASE A FINAL RESTRAINING ORDER.
POINT III: THE TRIAL COURT ERRED IN FINDING THAT, EVEN IF THERE WAS A PREDICATE ACT, THE PLAINTIFF WAS IN FEAR OF THE DEFENDANT OR IN DANGER FROM HER.
For the reasons stated herein, we affirm.
I.
On September 18, 2013, plaintiff filed a domestic violence civil complaint against defendant alleging, in part, that defendant caused an anonymous person to erroneously and maliciously inform plaintiff's wife that he had impregnated a "random woman." Plaintiff set forth an extensive history of domestic violence by defendant against him. Plaintiff claimed that defendant threw a glass bottle against his front door; texted his stepdaughter stating that she would destroy plaintiff's life; vandalized cars parked in his driveway; and solicited a store clerk to assault plaintiff. Plaintiff also stated that since defendant was released from jail in December 2011, she contacted the Division of Youth and Family Services (DYFS) and made baseless accusations against him and other family members.
Plaintiff asserted that defendant had falsely reported him to DYFS eight times in the last thirteen years. Plaintiff also alleged that in August of 2012, defendant drove past his house and shouted profanity at his minor children and made obscene gestures. He further alleged that she left abusive voicemails on his home phone and said that she wished he would "die." Plaintiff added that in 2006, defendant physically, verbally, and emotionally abused plaintiff's special needs son and threatened to throw him out of a moving vehicle. Plaintiff also stated that on September 6, 2013, defendant sent a threatening text to his wife.
The trial court entered a temporary restraining order, and defendant appeared with counsel for the hearing on a final restraining order. We discern the following facts from the record made during the hearing on the final restraining order.
Plaintiff and defendant lived together in their mother's home until 1999. While living together, defendant acted violently toward plaintiff, once stomping on his groin while he was asleep on the couch and on another occasion stabbing him with a fork. A significant source of defendant's animosity towards plaintiff was her distaste for plaintiff's wife. In 1999, plaintiff married his wife and moved-out of the mother's home. Defendant left the mother's home in 2001 after giving birth to her son in December 2000.
In August 2011, DYFS placed defendant's son with her mother after defendant was evicted from her home and failed a drug screening. In September 2011, defendant's mother obtained a restraining order against defendant after defendant submitted a false report to DYFS alleging that her mother beat the child. The defendant's mother presently remains the child's foster parent.
In October 2011, defendant began a sixty-day jail sentence on a charge unidentified in the record, and was released in December. After defendant was released from jail, her relationship with plaintiff worsened, culminating in the incidents plaintiff alleged in support of his application for a restraining order.
On September 12, 2012, plaintiff's wife received a phone call from an anonymous woman alleging that plaintiff had impregnated the caller's sister. The caller revealed that defendant had given her the telephone number. This allegation resulted in plaintiff's temporary separation from his wife, during which time he was forced to leave his home. Eventually, plaintiff's wife realized that the allegation was fabricated and the couple reconciled.
Additionally, on September 6, 2013, three days after DYFS had visited plaintiff's home on the basis of an unsubstantiated complaint by defendant, defendant sent a text message to plaintiff stating, "Njoy ur visit from DYFS? LMFAO!!! Not done with you yet dear brother!! ? ? ? u will be watching ur back from Now on!" This act was part of a pattern of behavior in which defendant filed baseless complaints with DYFS in an effort to harm her family. Since 1999, defendant had falsely reported plaintiff to DYFS eight times. Defendant also falsely reported her sister to DYFS and told her mother, "I am calling DYFS on [my sister], and I want that little bitch — her 10 year old granddaughter [ ] — to know what it was like to be in foster care."
Further in August 2012, defendant drove past plaintiff's home and shouted obscenities at his children who were playing in the front yard, while making an obscene gesture from the car window.
At the hearing on the final restraining order, defendant denied each incident, and denied that she and plaintiff had lived in their mother's home in 1999. The Family Part found defendant lacked credibility and found the testimony of plaintiff and plaintiff's witnesses to be credible.
II.
The scope of appellate review of a trial judge's fact-finding is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Rova Farms v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). A trial judge's findings of fact should be upheld if they are supported by "adequate, substantial and credible" evidence. Pascale v. Pascale, 113 N.J. 20, 33 (1998) (quoting Rova Farms, supra, 65 N.J. 484). We are especially reluctant to disturb a Family Part judge's fact finding "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Cesare, supra, 154 N.J. at 413. On the other hand, we owe no special deference to a trial court's legal interpretation of a statute, or the "legal consequences that flow from established facts." Manalapan Realty v. Manalapan Twp. Committee, 140 N.J. 366, 378 (1995).
III.
We turn first to defendant's contention that the Family Part lacked jurisdiction under the PDVA to issue a domestic violence final restraining order. Defendant argues that the standard for assessing jurisdiction under the PDVA set forth in Coleman v. Romano, 388 N.J. Super. 342 (Ch. Div. 2006), is "inapposite" to this case. Defendant argues that Jutchenko v. Jutchenko, 283 N.J. Super. 17 (App. Div. 1995), controls. We disagree.
A victim of domestic violence is defined as "any person who is 18 years of age or older . . . and who has been subjected to domestic violence by . . . any . . . person who is a present or former household member." N.J.S.A. 2C:25-19(d). The question here is whether defendant is a "former household member" with plaintiff.
"The [PDVA] and its legislative history confirm that New Jersey has a strong policy against domestic violence." Cesare, supra, 154 N.J. at 400. Additionally, the PDVA is remedial in nature, ibid., and therefore should be construed liberally. N.G. v. J.P., 426 N.J. Super. 398, 409 (App. Div. 2012) (citing Donelson v. Dupont Chambers Works, 206 N.J. 243, 256 (2011)); see also N.J.S.A. 2C:25-18 ("the Legislature encourages the broad application of the remedies available under this act").
In Jutchenko, supra, 283 N.J. Super. at 20-21 we stated:
[W]e 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, at least in the absence of any showing that the alleged perpetrator's past domestic relationship with the alleged victim provides a special opportunity for "abuse and controlling behavior." An
alleged act of harassment arising out of a dispute between two middle-aged brothers who have not resided together since reaching adulthood cannot reasonably be viewed as domestic violence.However, we have since concluded that "in the nearly two decades since Jutchenko was decided, its rationale has been eroded" and that a more expansive, fact-sensitive analysis is required. N.G., supra, 426 N.J. Super. at 410. Accordingly, we have adopted the six factor test established in Coleman, supra, 388 N.J. Super. at 351-52, to determine who constitutes a "former household member" under the PDVA. The six factors are:
(1) the nature and duration of the prior relationship;
(2) whether the past domestic relationship provides a special opportunity for abuse and controlling behavior;
(3) the passage of time since the end of the relationship;
(4) the extent and nature of any intervening contacts;
(5) the nature of the precipitating incident; and
(6) the likelihood of ongoing contact or relationship.
[Ibid.]
1. The nature and duration of the prior relationship.
The first prong focuses on "whether the current conflict arose from the prior domestic relationship." N.G., supra, 426 N.J. Super. at 411. "The court's predicate for exercising jurisdiction is that the 'former household' relationship essentially places the plaintiff in a more susceptible position for abusive and controlling behavior in the hands of the defendant." Storch v. Sauerhoff, 334 N.J. Super. 226, 233 (Ch. Div. 2000) (cited by N.G., supra, 426 N.J. Super. at 411). Where the "defendant's current behavior is a direct outgrowth of the parties' earlier household relationship, [it] weigh[s] in favor of finding jurisdiction under the act." N.G., supra, 426 N.J. Super. at 412 (finding that although a mother and daughter had been estranged for decades, "defendant's present attempt to reestablish contact with plaintiff springs from antagonism she harbored toward her while they were members of the same household").
Here, the Family Part found that when they lived together, plaintiff and defendant's relationship was acrimonious and sometimes violent. The Family Part further concluded that "the underpinning of [defendant's] upset with her family" concerned her relationship with her son and his custody with her mother. Indeed, defendant expressly testified that she believed her brother intended to sabotage her relationship with her mother and her son. The allegations underlying plaintiff's domestic violence complaint primarily describe conduct by defendant designed to cause plaintiff to be separated from his wife and his children — e.g. the unfounded DYFS calls and the threatening DYFS text message. Therefore, defendant's contentious behavior arises from the antagonism she harbored toward her brother while they lived together, and during the years since, which weighs in favor of jurisdiction.
2. Whether the past relationship provides a special opportunity for abuse.
Plaintiff was particularly vulnerable to defendant's abuse, satisfying the second Coleman factor. The Family Part concluded that the family relationships provided defendant with the opportunity and knowledge to maliciously harass plaintiff and his family. Indeed, defendant initiated baseless DYFS complaints against plaintiff eight times in thirteen years without a legitimate reason to do so.
3. The amount of time that has elapsed since the parties last lived together.
The third factor requires an analysis of the time that has elapsed since the parties last lived together. N.G., supra, 426 N.J. Super. at 413 (citing Coleman, supra, 388 N.J. Super. at 351). The fact that thirteen years had passed since the parties lived together does not defeat jurisdiction. The parties remained involved in each other's lives during that time. Plaintiff's stepdaughter lived with defendant, defendant made plaintiff her son's godfather, and plaintiff helped defendant move, among other things. And in any case, "the passage of time from the end of the . . . relationship is only one factor to be considered in determining the availability of the Act's protection." Tribuzio v. Roder, 356 N.J. Super. 590, 597 (App. Div. 2003); see also N.G., supra, 426 N.J. Super. at 413 (finding that the passage of more than fifty years since the parties lived together did not defeat jurisdiction under the Act).
4. The extent and nature of intervening contacts.
"Intervening acts marked by violence or threats [] strengthen the jurisdictional claim." Coleman, supra, 388 N.J. Super. at 351. Such acts are present here. Defendant lives within five miles of plaintiff's house. On numerous occasions, she has driven past plaintiff's house and shouted obscenities at children in the front yard. Defendant texted plaintiff's daughter messages threatening violence against plaintiff and addressed a text to plaintiff warning him to "watch [his] back." The trial court correctly found that the nature of the intervening contacts weighed in favor of jurisdiction.
5. The precipitating incident.
The fifth Coleman factor requires an analysis of the incident giving rise to the domestic violence complaint. Ibid. at 352. "If the precipitating incident relates to the domestic relationship, then jurisdiction is more appropriate than if the precipitating incident had no connection to a domestic setting or relationship." N.G., supra, 426 N.J. Super. at 414 (citing Coleman, supra, 388 N.J. Super. at 353).
The Family Part concluded, and we agree, that the phone call placed to plaintiff's wife at the behest of defendant accusing plaintiff of impregnating another woman, as well as the DYFS text message, were incidents connected to the parties' relationship. Defendant candidly admitted distaste for plaintiff's wife and defendant's mother testified that defendant's relationship with plaintiff soured upon his marriage. Similarly, the record demonstrates that defendant, troubled by her own issues with DYFS, was quick to maliciously complain to DYFS about her other family members. For these reasons, the nature of the precipitating incidents weigh in favor of jurisdiction. 6. The likelihood of ongoing contact.
Defendant had a long history of harassing her brother notwithstanding prior criminal complaints and the issuance of a prior restraining order. Furthermore, the record demonstrates that plaintiff remains close with his mother and defendant desires to repair her relationship with her mother while excluding plaintiff from their lives. Thus, a strong probability exists that defendant will continue to attempt to damage plaintiff's marriage and his relationship with his children.
For the above reasons, we find jurisdiction under the PDVA and affirm the Family Part.
IV.
We now turn to defendant's second argument that she did not commit an act of domestic violence and that a final restraining order was not warranted. As noted earlier, however, a trial court's findings of fact may not be disturbed on appeal if supported by substantial evidence in the record.
Substantial evidence supports the Family Part's finding that defendant initiated the false telephone call to plaintiff's wife, and sent the text message wherein defendant asked plaintiff how he enjoyed his visit from DYFS. Defendant's mother's testimony regarding defendant's use of DYFS as a weapon against her family members corroborates plaintiff's testimony that defendant maliciously and falsely complained to DYFS about plaintiff numerous times in the past.
The Family Part further credited plaintiff's wife's testimony that on more than one occasion defendant drove past plaintiff's home and shouted obscenities at the children while making obscene gestures from the car window. This conduct serves no purpose other than to harass plaintiff, and was not only likely to cause plaintiff annoyance or alarm, but did, in fact, have that effect. With respect to the anonymous phone call to plaintiff's wife accusing plaintiff of infidelity, the Family Part noted that "it really upset the whole house to the point that [plaintiff] had to move out of the house for a period of time . . . And eventually they were able to reconcile, but it caused unquestionabl[e] annoyance and alarm to plaintiff." Such acts fully support the Family Part's conclusion that defendant harassed plaintiff as that term is utilized by the PDVA.
A person commits harassment if, acting with the purpose to harass another, she: "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." N.J.S.A. 2C:33-4(a). It is clear that defendant's actions constitute harassment under this definition.
The PDVA requires a court to conduct a two-step inquiry. First, "the judge must 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." Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006)(citing N.J.S.A. 2C:25-29(a)). Second, upon finding the commission of a predicate act, the court must "consider the previous history of domestic violence between the parties including threats, harassment and physical abuse, N.J.S.A. 2C:25-29(a)(1), and the existence of immediate danger to person or property, N.J.S.A. 2C:25-29(a)(2)." Silver, supra, 387 N.J. Super. at 123 (quoting Kamen v. Egan, 322 N.J. Super. 222, 227-28 (App. Div. 1999)).
Although this second determination — whether a domestic violence restraining order should be issued — is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse. See N.J.S.A. 2C:25-29b (stating that "[i]n proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse") (emphasis added).
While it is clear that a pattern of abusive and controlling behavior is a classic characteristic of domestic violence, see Cesare, supra, 154 N.J. at 397-98, the need for an order of protection upon the commission of a predicate act of "domestic violence," as specifically defined in N.J.S.A. 2C:25- 19a, may arise even in the absence of such a pattern where there is "one sufficiently egregious action[.]" Id. at 402. Silver, supra, 387 N.J. Super. at 128.
Defendant challenges the second prong of Silver and argues a final restraining order was unnecessary based on her denial of the acts testified to by plaintiff and other witnesses. This argument is clearly without merit. The Family Part assessed the credibility of the testifying parties and witnesses and concluded that harassment had occurred. The Family Part's conclusion that defendant engaged in a pattern of vicious harassment against plaintiff and his family was well supported by the record.
We find no error in the Family Part's conclusion that defendant committed a predicate act of domestic violence and a final restraining order was needed to protect plaintiff from future acts of domestic violence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION