S.B. VS. L.M. (FV-12-0676-17, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-1975-16T2

S.B.,

Plaintiff-Respondent,

v.

L.M.,

Defendant-Appellant.
_____________________________

Argued April 30, 2018 – Decided August 15, 2018

Before Judges O'Connor and Vernoia.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FV-12-0676-17.

Rajeh A. Saadeh argued the cause for
appellant (The Law Office of Rajeh A.
Saadeh, LLC, attorneys; Rajeh A. Saadeh and
Amanda E. Rasheed, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant L.M. appeals from a December 2, 2016 final

domestic violence restraining order (FRO) entered in favor of

plaintiff S.B. pursuant to the Prevention of Domestic Violence

Act (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse.
 I

Plaintiff filed a domestic violence complaint under the

PDVA alleging defendant committed an act of domestic violence by

harassing him in violation of N.J.S.A. 2C:33-4.1 In his

complaint, plaintiff failed to identify the subsection or

subsections of N.J.S.A. 2C:33-4 defendant allegedly violated,

but by the time of the final hearing, clarified he was alleging

defendant violated subsections (a) and (c) of this statute.

Defendant also filed a domestic violence complaint against

plaintiff, alleging he harassed her in violation of N.J.S.A.

2C:33-4. Both complaints were adjudicated during the final

hearing. Both parties prevailed on their respective complaints

and obtained an FRO against the other, and each had an FRO

entered against them. Unlike defendant, plaintiff does not

appeal from the FRO entered against him.

The evidence adduced during the final hearing relevant to

the issues on appeal is as follows. The parties, divorced in

2005, are the parents of two teenage boys. At the time of the

subject incident, plaintiff was the primary caretaker and

1
Plaintiff also contended defendant violated the PDVA by
stalking him in violation of N.J.S.A. 2C:12-10, but the court
dismissed this claim at the conclusion of the final hearing on
the ground of insufficient evidence. Plaintiff did not appeal
from the dismissal of this claim.
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defendant had parenting time every other weekend. We first

recite defendant's version of events.

At 4:30 p.m. on September 23, 2016, defendant was at home

waiting for plaintiff to drop off the boys for her parenting

time, when a caseworker from the Division of Child Protection

and Permanency (the Division) appeared at her door stating she

wanted to speak to the boys and inspect defendant's home.

Uncertain she was obligated to accede to the caseworker's

request and suspicious plaintiff made a false allegation against

her, defendant asked the caseworker to remain outside on the

porch while she telephoned her attorney for advice.

Minutes later, plaintiff pulled up in his truck and parked

outside of defendant's home. The boys and plaintiff's mother

were also in the truck. Defendant observed the caseworker

approach plaintiff and assumed the caseworker was going to start

her investigation by questioning plaintiff and do so in the

children's presence. Anxious that the caseworker not speak to

plaintiff in front of the boys because "they don't need to hear

anything negative or derogatory about their mother," defendant

went to the truck and told the boys to get out of it and go into

her house. Plaintiff told the boys to remain and they obeyed.

While plaintiff and the boys were still in the truck, the

caseworker asked plaintiff if he had any "cares or concerns."
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Plaintiff stated defendant was an alcoholic, used cocaine, had

sex in front of the boys, and was a "deadbeat." Defendant

testified she "got really upset because this [investigation] was

going on in front of my children. So I had asked him to please

let them out." She claims she did not attempt to physically

remove the boys from the truck.

Because it was not yet 5:00 p.m., when her parenting time

was to start, plaintiff refused to let the children out of the

truck. According to defendant, she was "mortified. . . . [I

was] tired of these false allegations. . . . They're defaming

and it's slander and it's wrong. I felt attacked." Plaintiff

then got out of the truck and, just "nose distance" from her,

called her a drunk and a deadbeat. Plaintiff's mother also

called plaintiff a "whore." Defendant then retreated to her

porch and called her attorney.

On cross-examination, defendant admitted she called

plaintiff a liar during the encounter, but denied calling him

other names or swearing at him. She also denied touching or

putting her hands inside of the truck.

According to plaintiff's testimony, the caseworker

approached him in his truck and advised she received a telephone

call from the staff of one of the boys' schools, and learned one

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of the boys had made an allegation.2 Because the caseworker

needed to follow-up on the allegation, plaintiff gave her

permission to speak to the boys.

Plaintiff claimed defendant then opened the door to the

back seat, where the boys were seated, and tried to pull them

out of the truck, but they slid over to the opposite side of the

vehicle. While defendant was trying to pull them out, she told

the caseworker "I'm not giving you any fucking permission to

talk to my kids," and to "get away from the fucking car."

Plaintiff claims defendant went to the other side of the

truck and tried to talk to the boys. She was also "screaming

and yelling" and, at one point, put her hand into the area of

the front passenger seat, where his mother was seated, and

attempted to "swing" at his mother. Plaintiff then got out of

the truck and ran to the other side of the vehicle, stood

between defendant and his mother, and told defendant to back

away. He claims defendant was "cursing" at and "abusive" toward

him, but he did not clarify what she said or how she was

abusive.

Plaintiff admitted he cursed one time at defendant, and

called her a "deadbeat mother" and a drunk. He conceded the

2
The nature of the allegation was not revealed during the
hearing.
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boys are physically larger than defendant and thus she was not

strong enough to pull them out of the car.

The caseworker testified defendant was very upset and angry

because the caseworker appeared at defendant's home unannounced,

and defendant indicated to the caseworker she believed plaintiff

had called the Division to send the caseworker over. After

defendant spoke to her attorney, she told the caseworker she was

not going to cooperate with the investigation.

The caseworker walked over to the truck and told plaintiff

she needed to talk to the children, but it became too difficult

to continue speaking with plaintiff because defendant was

yelling and cursing at plaintiff. The caseworker did not

identify the words defendant used. Defendant did state she did

not want the children interviewed during her parenting time, and

told the children not to communicate with the caseworker and to

go into the house. Plaintiff pointed out to the caseworker that

defendant's parenting time did not start for another ten

minutes, and authorized her to speak to the boys.

The caseworker also testified that, at one point, plaintiff

got out of the truck and approached defendant. The parties then

yelled and cursed at each other; the caseworker did not specify

the words the parties used during this exchange.

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 At the conclusion of the hearing, the court found each

party harassed the other during the subject incident in

violation of the PDVA, and entered a FRO against both. As

noted, defendant challenges the FRO against her but plaintiff

did not appeal from the FRO entered against him.

The court did not find credible plaintiff's claim defendant

tried to remove the boys from the truck. As for her other

conduct, the court found defendant violated N.J.S.A. 2C:33-4(a)

because she "flew into rage" and

what ended up happening was a confrontation
occurred where each side harassed the other
by yelling at each other, screaming at each
other. . . .

So, I find by defendant yelling at
[plaintiff], yelling at [plaintiff's]
mother, yelling at the kids, . . . it
escalated the harassment. . . . I make that
finding that it did and that [defendant],
ironically, became a harasser herself . . .
by not being calm and not – just riding out
the situation, letting the police handle the
situation. She escalated the situation
. . . .

She escalated the situation and, as a
result, harassed [plaintiff]. How did she
harass him? By making communications, using
offensive language, by trying – by causing
annoyance and alarm, by screaming at him and
his mother. . . .

The court further found defendant harassed plaintiff by

violating N.J.S.A. 2C:33-4(c), but merely stated:

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 Section C, engages in a course of alarming
conduct with the purpose to seriously annoy.
Absolutely. I find – I make a finding that
she did that. She did that to annoy
[plaintiff] knowing full well that her
actions were going to annoy him. . . .

The court determined that not only did plaintiff prove defendant

violated subsections (a) and (c) of N.J.S.A. 2C:33-4, but also

required a restraining order to protect him from further

harassment from defendant.

II

On appeal, defendant's principal argument is the court

erred when it found defendant engaged in an act of harassment

during the subject incident, in violation of N.J.S.A. 2C:33-4(a)

and (c). In relevant part, this statute states:

[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 . . .
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.
[N.J.S.A. 2C:33-4.]

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 We are bound by the trial court's findings "when supported

by adequate, substantial, credible evidence." Cesare v. Cesare,

154 N.J. 394, 412 (1998). However, when a reviewing court

concludes there is insufficient evidentiary support for the

trial court's findings, we reverse. Our review of a trial

court's legal conclusions is always de novo. Manalapan Realty,

LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

When determining whether to grant an FRO pursuant to the

PDVA, the trial judge must make two determinations. Silver v.

Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "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."

Ibid. Second, the judge must also find that "relief is

necessary to prevent further abuse." J.D. v. M.D.F., 207 N.J.

458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)).

N.J.S.A. 2C:33-4 is one of the predicate offenses under the

PDVA. N.J.S.A. 2C:25-19(a)(13). Proof of a purpose to harass

is an essential element to support a finding under N.J.S.A.

2C:33-4(a) and (c) and the entry of an FRO. See L.D. v. W.D.,

327 N.J. Super. 1, 5 (App. Div. 1999) (quoting State v. Hoffman,

149 N.J. 564, 576 (1997)). A court must find the defendant had

a "conscious objective" to harass the plaintiff. State v.
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Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989). Unless stated

with a purpose to alarm or seriously annoy, offensive speech

alone is not domestic violence. E.M.B. v. R.F.B., 419 N.J.

Super. 177, 182-83 (App. Div. 2011). The effect of the speech

upon the victim is irrelevant. Ibid. The determination of

whether there was a "purpose to harass" must be decided based on

"common sense and experience." H.E.S. v. J.C.S., 175 N.J. 309,

327 (2003) (quoting Hoffman, 149 N.J. at 577).

Applying these principles, we are satisfied the court erred

when it determined the predicate act of harassment was found

under either subsection (a) or (c). According to plaintiff,

defendant screamed, yelled, and cursed at him, but he did not

testify to what defendant actually stated. He also claimed

defendant was abusive, but did not clarify what she did.

Plaintiff did testify that defendant told the caseworker

she was not going to give her "any fucking permission" to talk

to the boys and to "get away from the fucking car," but such

comment was not made to plaintiff. Plaintiff noted defendant

reached into his truck and took a "swing" at his mother, but

such conduct was not directed at him, and his claim defendant

tried to pull the children out of his truck was not found to be

credible and, in any event, was not an act made against him.

The caseworker testified both parties yelled and cursed at each
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other, but she did not specify the words defendant used or

provide any other details about their argument.

In our view, there is no evidence defendant engaged in

conduct with a purpose to harass plaintiff. At worst, defendant

yelled, screamed, and cursed at plaintiff – while plaintiff did

the same to defendant. It is impossible to evaluate defendant's

speech and conduct by words neither detailed nor described.

Without knowing the specific words defendant used and the

context in which she used those words when yelling and

cursing, it cannot be ascertained if those words were uttered

with the purpose to harass plaintiff.

It is uncontroverted defendant was angry because she

believed plaintiff had instigated the Division's investigation

and was distraught over the prospect the children would be

interviewed by the caseworker. But the fact she was angry is

beside the point. Feeling anger or being angry is not

harassment. Expressing anger is also not harassment, unless the

manner in which a defendant expresses anger is done with a

purpose to harass the plaintiff. There is no evidence defendant

did that here. Absent evidence defendant acted with a purpose

to harass, plaintiff failed to show defendant violated N.J.S.A.

2C:33-4(a) and (c).

Reversed.
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