State v. B.H.

LOFTUS, J.S.C.,

(temporarily assigned), concurring and dissenting.

I dissent from the majority opinion with regard to Points II and III raised by defendant, B.H. (B.) for the following reasons: (1) *603the applicable standard of appellate review mandates affirmance of the judgment of conviction of the trial court; (2) B.H.’s conduct violated the statutory provisions of N.J.S.A. 2C:33-4(a) and N.J.S.A. 2C:25-9(b); and (3) the majority opinion trivializes the plight of the domestic violence victim.

I. Factual and Procedural History

At the time of the bench trial, M.H. (M.H.) and B.H. were estranged spouses who had been experiencing an emotionally turbulent and violent relationship for some time. On September 24, 1991, the court issued a temporary restraining order as a result of an incident during which B.H. assaulted M.H. M.H. subsequently withdrew that charge on November 19, 1991. On November 24, 1991, B.H. was arrested and charged with assaulting M.H. M.H. subsequently withdrew the charge on December 19, 1991. On January 31, 1992, another temporary restraining order was issued as a result of acts of domestic violence. This temporary restraining order was made final on February 6, 1992.

The final restraining order prohibited B.H. from future acts of domestic violence, under N.J.S.A. 2C:25-29(b)(1); prohibited B.H. from having contact with M.H., her three children from a former marriage and M.H.’s mother, under N.J.S.A 2C:25-29(b)(6); barred B.H. from North Village Drive, Somers Point, New Jersey and Belhaven Avenue, Linwood, New Jersey, under N.J.S.A. 2C:25-29(b)(6); prohibited B.H. from making harassing communications to M.H., her three children from a former marriage and M.H.’s mother, under N.J.S.A. 2C:2o-29(b)(7). M.H. was granted exclusive possession of Belhaven Avenue, Linwood, New Jersey, under N.J.S.A. 2C:25-29(b)(7). M.H. was also granted temporary custody of Brandice and Margaret H., the parties’ two children, and B.H. was prohibited from visiting the children pending completion of a risk assessment to be followed by a plenary hearing as to visitation under N.J.S.A. 2C:25-29(b)(3), (b)(3)(a) and (b)(11). B.H. was permitted to return to the marital residence on February 7, 1992 between the hours of 9:00 a.m. and 11:30 a.m. accompanied by law enforcement officers to remove his personal *604belongings. The order also directed B.H. to pay support under N.J.S.A. 2C:25-29(b)(4). In February 1992, M.H. instituted an action for divorce.

When B.H., accompanied by police officers, went to the marital residence to remove his personal belongings in accordance with the February 6, 1992 order, he went into the bedroom, took scissors and cut most of her clothing which was hanging in the closet in half while the officers were in the other room.

On April 16,1992, while M.H. was returning home after picking up a support check from her attorney’s office, B.H. passed her approximately eight houses away from her home. According to M.H., he slammed his brakes on, appeared to shout something, shook his hand in a fist form and pointed his index finger at her to imitate a gun.

On April 17,1992, at 1:20 a.m., B.H. was arrested in the Somers Point home and subsequently charged with burglary, attempted larceny, criminal mischief, unlawful possession of a weapon, and contempt of the final restraining order. On July 8, 1992, B.H. pled guilty to criminal trespass and to violation of the restraining order. The remaining charges were dismissed by the Atlantic County Prosecutor’s office. B.H. was sentenced on August 14, 1992, to 364 days in jail and three years probation.

On July 9, 1992, the day after B.H. pled guilty to the April 17, 1992, charges, upon the advice of the prosecutor, M.H. filed charges against B.H. for the April 16, 1992, car incident. M.H. testified that in her voluntary statement concerning the burglary incident on April 17,1992, she also advised the police officer of the “car incident” of April 16, 1992. However, the incident was not detailed in the April 17, 1992, police report beyond the brief indication that “[B.H.] passed [her.]”

On June 23, 1993, M.H. received an envelope in the mail with her address handwritten and the return address bearing B.H.’s name and jail address. The envelope contained a motion to reduce B.H.’s child support obligation, a financial statement and a *605June 28, 1992, order tom into pieces. The following day, M.H. received a postcard in her mailbox indicating there was a certified letter for her at the post office. She picked up the envelope on June 25, 1993. It contained the same contents as the previous envelope, with the exception that the “court order seemed to be torn-up more.” Pursuant to previous instructions, M.H. notified the Atlantic County Prosecutor’s office. The bench trial ensued.

With regard to the contempt charge of February 6, 1992, the trial judge found that the State had not met its burden of proof and dismissed the complaint (FO-01-162-92B).

With respect to the April 16, 1992, charges (FO-01-308-93B) involving the “car incident,” the judge found B.H. guilty as to count one charging him with violating the final domestic violence restraining order contrary to N.J.S.A. 2C:29-9(b). The judge granted a directed verdict for B.H., as to the second count charging harassment under N.J.S.A. 2C:33-4(c) because the incident was only one incident and thus did not constitute a “course” of alarming conduct.

The judge found B.H. guilty of the remaining four counts arising from the mailings of the torn-up orders, two counts of contempt for violating the final restraining order contrary to N.J.S.A. 2C:29-9(b) and two counts of harassment contrary to N.J.S.A. 2C:33-4(a) (FO-01-15-94B and 16-14B).

II. Standard of Appellate Review

The applicable standard governing appellate review in a case of this nature is that the fact-finding of a trial judge may not be disturbed if supported by adequate, substantial and credible evidence. Roe v. Roe, 253 N.J.Super. 418, 432, 601 A.2d 1201 (App.Div.1992); Rova Farms Resort v. Investors Ins. Co. of Am., 65 N.J. 474, 484, 323 A.2d 495 (1974); State v. Johnson, 42 N.J. 146, 161-62, 199 A.2d 809 (1964). This court is obliged to accord special deference to findings “which were substantially influenced by the judge’s opportunity to hear and see the witnesses and to have the ‘feel’ of the case, which an appellate court does not *606enjoy.” D.C. v. F.R., 286 N.J.Super. 589, 601, 670 A.2d 51 (App.Div.1996). The task of an appellate court is not to reweigh the evidence but to determine if sufficient evidence exists. Roe v. Roe, supra, 253 N.J.Super. at 431, 601 A.2d 1201.

The trial judge made the following findings of fact and conclusions of law:

I have for decision five counts, one of which deals with an [incident] of April 16th, 1992. In order to determine the verdict with respect to that charge, I’m really required to weigh the credibility of the complaining witness. I’m satisfied that that witness’s credibility is unimpeachable. I am satisfied that the testimony that I received from Ms. H. accurately reflects what occurred on April 16th, 1992 [the car incident]. I make that finding for two bases. The first is the manner in which her testimony was delivered to me. I saw Ms. H. on the witness stand. I was able to evaluate her body language, the manner in which she reacted to questions, and the manner in which she related answers. The manner in which her testimony was delivered was to me such as to invest it with a credibility and a worthiness of belief. I am satisfied that Ms. H. accurately reflected what occurred on the 16th. Moreover, it has an internal consistency. It deals almost entirely and logically with the manner in which she had related prior occurrences between herself and Mr. H. I am absolutely satisfied that on April 16th Ms. H. and Mr. H. passed each other in a car. I am satisfied there was a short period of time when Ms. H. was able to see Mr. H. on North Village Drive. I find that Mr. H. pointed his finger at her and shook his fist. That is a contact. It is a contact which was prohibited by the restraining order which I find was obtained by Ms. H. and which was delivered to Mr. H. and which prohibited contact. I reject any contention that I should disbelieve Ms. H. because of inconsistencies with respect to that testimony. In the real world, ... details sometimes escape people, but the incident which was described is clearly related by Ms. H., and I’m satisfied that it did, in fact, occur. I’ll enter a finding of guilty with respect to that charge, the first count of FO-01-308-93B. With respect to the charges- alleged in FO-01-15-94 and 16-94, I am also satisfied that Ms. H. received a notice of motion for a reduction in child support. I am satisfied that that notice of motion was accompanied by a ripped up order. In taking that testimony, again, for the reasons which I have just laid out, [I] accept the testimony of Ms. H., ... I accept completely the testimony of Ms. H. that she received the envelope, opened it, and found a ripped up letter____ I acknowledge in evaluating Ms. H.’s testimony that she is biased against Mr. H. I accept that. But the behavior which she exhibited was also consistent with a person who is truthfully telling what happened while she’s in fear of the defendant As to whether the document was intended to cause annoyance or alarm, I can think of no other motivation for ripping up a court order and enclosing it in a communication to an adverse party. It can only be intended to annoy or alarm. As to whether it is likely to cause annoyance or alarm, I’m satisfied from the testimony here that Mr. H. had been incarcerated as a result of incidents which had occurred in which Ms. H. was the victim. It seems to me that a communication from him in any event would be likely to cause annoyance or alarm. Some *607communications are permissible. A notice of motion is permissible, even though it causes annoyance or alarm. It might even be motivated by an attempt to cause annoyance or alarm, but I think it would be immune from prosecution, but the utilization of a ripped up order clearly indicates to me that this was a communication likely to cause annoyance or alarm and intended to cause annoyance or alarm. I am satisfied that it also constitutes a violation of the order by merely making contact,____(emphasis added).

The trial judge had familiarity with this case. He found M.H.’s credibility to be “unimpeachable;” that her testimony was invested with “credibility and a worthiness of belief;” and that she was a person who was “truthfully telling what happened while she [was] in fear of [B.H.]” He based these evaluations upon her body language, the manner in which she reacted to questions and the manner in which she related answers. These findings with regard to credibility are to be given great deference by an appellate court. State v. Avena, 281 N.J.Super. 327, 340, 657 A.2d 883 (App.Div.1995). The judge’s findings on credibility are significant in light of current scholarly articles which indicate that, because of custom and law, women, particularly in abusive relationships, are often disbelieved because they are women and perceived as less credible than men. Judith Resnik, Gender Bias: From Classes to Courts, 45 Stan. L.Rev. 2195, 2205 (1993); Lynn Hecht Schafran, Credibility in the Courts: Why is There A Gender Gap? The Judges Journal 5, 9 (Winter 1995) (citing Ellison v. Brady, 924 F.2d 872, 879 (9th Cir.1991)); The First Year Report of the New Jersey Supreme Court Task Force on Women in the Courts— June 198k, 9 Women’s Rts. L. Rep. 129, 138 (1986).

The specific facts in this case indicate a pattern of an abusive relationship. The two incidents of filing complaints and then withdrawing them are illustrative of behavior of women in abusive relationships. See Report of the Missouri Task Force on Gender and Justice, at 29-30 (March 1993); Roe v. Roe, supra, 253 N.J.Super. at 423, 601 A.2d 1201. B.H.’s acts of cutting up M.H.’s clothes while two police officers waited in the next room indicate his propensity for violent behavior. The act of driving his car into the vicinity of her home and then pointing his finger at her in a *608gun-like manner was “contact” with the victim contrary to the restraining order which threatened her safety. The mailing of tom-up court orders on two occasions were “communications” to M.H. which were sent with intent to harass and to annoy or alarm her. They were violative of the final restraining order prohibiting him from making “contact” with M.H. or making “harassing communications” to M.H. As such, they constituted harassment under N.J.S.A. 2C:33-4(a) and contact in violation of N.J.S.A 2C:29-9(b).

The findings of fact and conclusions of the trial judge are supported by adequate, substantial, credible evidence in the record. State v. Johnson, supra, 42 N.J. at 161-62, 199 A.2d 809. I would affirm.

III. Statutory Interpretation

In this case B.H. was found guilty of two counts of contempt for violating the final restraining order contrary to N.J.S.A. 2C:29-9(b) and two counts of harassment contrary to N.J.S.A. 2C:33-4(a) with regard to the tom-up court orders.

N.J.S.A. 2C:29-9(b) provides:

b. Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an'order entered under the provisions of the “Prevention of Domestic Violence Act of 1990,” P.L. [1991], c.[261] (C.2C:25-17 et al.) when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense. In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act. Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of P.L.1991, c. 261 (C. 20:25-29) shall be excluded from the provisions of this subsection.

N.J.S.A. 2C:33-4(a) provides:

Except as provided in subsection d., 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; (Emphasis added).

The majority opinion finds that the evidence in this case did not support a finding of violation of the final restraining order under N.J.S.A. 25-29(b)(7) and harassment under N.J.S.A. 2C:33A(a) *609because the mailing of the two tom court orders was not a communication likely to cause annoyance or alarm and because it was not “serious” annoyance or alarm. This interpretation is contrary to the plain meaning of the statutes and to the Legislative intent.

A word or phrase should be accorded its normal and accepted connotation as well as its ordinary and well understood meaning. Fahey v. Jersey City, 52 N.J. 103, 107, 244 A.2d 97 (1968); State by Rickman v. Sperry & Hutchinson Co., 23 N.J. 38, 127 A.2d 169 (1956); Jamouneau v. Harner, 16 N.J. 500, 109 A.2d 640 (1954), cert. denied, 349 U.S. 904, 75 S.Ct. 580, 99 L.Ed. 1241 (1955). “Annoy” means to “disturb or irritate, especially by continued or repeated acts; to weary or trouble; to irk; to offend.” Black’s Law Dictionary 89 (6th ed. 1990). “Alarm” means, to “strike with fear; fill with anxiety as to threatening danger or harm.” Webster’s Third New International Dictionary 49 (1993).

In subsection (c) of N.J.S.A. 2C:33-4, the legislature specifically modified the verb “annoy” with the adverb “seriously.” It did not do so in subsection (a). The wisdom, good sense, policy and prudence of a statute are matters within the province of the Legislature and not of the Court. White v. Township of North Bergen, 77 N.J. 538, 391 A.2d 911 (1978).

Through the use of the ordinary and well understood meanings of the words “annoy” and “alarm” in subsection (a), and in considering B.H.’s conduct in the context of this case, the record supports the requisite finding of a “purpose to harass” to sustain the conviction under N.J.S.A. 2C:33-4(a). As to whether the trial court’s inference that B.H. made those communications with an intent to harass M.H., E.K v. G.K, 241 N.J.Super. 567, 575 A.2d 883 (App.Div.1990), common sense and common experiences must guide. State v. Richards, 155 N.J.Super. 106, 118, 382 A.2d 407 (App.Div.), cert. denied, 77 N.J. 478, 391 A.2d 493 (1978). An inference may be deduced from proven facts. State v. Corby, 28 N.J. 106, 114, 145 A.2d 289 (1958); State v. Avena, supra, 281 N.J.Super. at 340, 657 A.2d 883.

*610M.H. was a woman who had custody of five children, two of whom were by B.H. and three from a former marriage; whose husband had been barred from coming near her house and had been denied visitation to his children; whose clothes had been cut up by him while police officers were in the other room; whose husband had pointed his finger at her in a gun-like manner; and whose husband had criminally trespassed on her property. Her husband was in jail. For what other reason except to annoy or alarm her did B.H. send the two tom-up court orders to M.H.?

Under the factual circumstances of this case with the prior pattern of an abusive relationship, violent acts and criminal conduct, there could be no other reason for B.H. to mail two torn-up court orders from jail but to alarm and annoy M.H., and through such acts to indicate that her economic support would be cut off and that she will not receive the protection of the courts. “Just as a pattern of domestic violence is one means of exercising control and domination over a household partner, so is stalking, harassing or threatening an ex-spouse.” State v. Zurmiller, 544 N.W.2d 139, 142 (N.D.1996) (Levine, J., concurring).

Harassment under N.J.S.A. 2C:33-4(a) is a petty disorderly persons offense, which does not require “serious” annoyance as required by N.J.S.A. 2C:33-4(c). Harassment is not a third, second or first degree crime subject to the lengthy mandatory terms of imprisonment under N.J.S.A. 2C:43-6 and N.J.S.A. 2C:44-1. However, it is prohibited criminal conduct. Matrimonial litigants are not exempt from the responsibility of conducting themselves in an appropriate manner nor are they exempt from the statutory sanctions for violation of the criminal laws.

A court order represents the power and authority of the judicial branch of government. It makes no difference whether such order is for child support or a restraining order. In a matrimonial case it represents society’s method of resolving conflicts in difficult emotionally charged situations between two estranged persons. The court orders in this case which were tom-up were court orders setting forth financial terms of support for the parties’ *611children. To tear them up was not only an act of defiance of judicial authority but for B.H. to mail the tom-up court orders to M.H. under these circumstances could have been for no other purpose than to annoy or alarm her with the intent to harass.

The present case is distinguishable from two previous decisions of this court on the subject of harassment. In Peranio v. Peranio, 280 N.J.Super. 47, 654 A.2d 495 (App.Div.1995), and Corrente v. Corrente, 281 N.J.Super. 243, 657 A.2d 440 (App.Div.1995), this court reversed two restraining orders issued because of alleged harassment under N.J.S.A. 2C:33-4(e). In Corrente v. Corrente, supra, where there was no history of assaultive behavior, this court found that there was not a violation of N.J.S.A. 2C:33-4(c) because the phone calls and the act of turning off the phone were not made with a purpose to harass and did not constitute a course of alarming conduct. Corrente v. Corrente, supra, 281 N.J.Super. at 243, 657 A.2d 440. In Peranio v. Peranio, supra, where there was no history of assaultive behavior and where there was no finding of “purpose to harass,” the acts of the husband in utilizing foul language and saying “I’ll bury you” after he forced entry into plaintiffs home was not harassment under N.J.S.A. 2C:33-4(c). Peranio v. Peranio, supra, 280 N.J.Super. at 55, 654 A.2d 495. In those cases, which fell under Section c, not Section a, of N.J.S.A. 2C:33-4, there were no prior incidents of domestic violence and no findings of a “purpose to harass.” They were individual isolated incidents.1

In another case in Massachusetts, the Appeals Court affirmed a finding of violation of a restraining order barring “contact” where *612the defendant anonymously sent flowers to his former girlfriend. Commonwealth v. Butler, 40 Mass.App.Ct. 906, 661 N.E.2d 666 (1996).

I conclude that B.H.’s acts of sending two tom-up court orders from jail to M.H. violated the permanent restraining order under N.J.S.A. 2C:29-9(b) and constituted harassment under N.J.S.A. 2C:33-4(a) because they were contacts and communications made with a purpose to harass which were likely to cause annoyance or alarm to M.H.

IV. Plight of Domestic Violence Victim

The majority in this case states that the acts of mailing the tom-up court orders are inconsequential acts, minor irritants and infantile tweakings engaged in by matrimonial litigants. These characterizations trivialize the plight of the domestic violence victim and indicate a cavalier treatment of criminal acts. Lynn Hecht Schafran, There’s No Accounting for Judges, 58 Alb. L.Rev. 1063, 1065, 1067 (1995); James Martin Truss, The Subjection of Women ... Still: Unfulfilled Promises of Protection for Women Victims of Domestic Violence, 26 St. Mary’s L.J. 1149, 1201-02 (1995); Lynn Hecht Schafran, Gender Bias in Family Courts, Why Prejudice Permeates the Process, 17 Sum. Fam. Advoc. 22, 127 (1994); Judith Resnik, Revising the Canon: Feminist Help in Teaching Procedure, 61 U. Cin. L.Rev. 1181, 1189 n. 38, 1194 n. 66 (1993); Note, Home Sweet Home?: New Jersey’s Prevention of Domestic Violence Act of 1991, 17 Seton Hall Legis. J. 234, 256 n. 147 (1993); Note, New State and Federal Responses to Domestic Violence, 106 Harv. L.Rev. 1528, 1536 (1993); Mac D. Hunter, J.S.C., Homosexuals as a New Class of Domestic Violence Subjects under the New Jersey Prevention of Domestic Violence Act of 1991, 31 U. Louisville J. Fam. L. 557, 559 n. 11 (1992/1993); Joan Zorza, The Criminal Law of Misdemeanor Domestic Violence 1970-1990, 83 J.Crim. L. & Criminology 46, 72 (1992); Mary E. Asmus, Ellen L. Pence and Tineke Ritmeester, Prosecuting Domestic Abuse Cases in Duluth: Developing Effective Prosecution Strategies from Understanding the Dynamics of Abusive *613Relationships, 15 Hamline L.Rev. 115, 121 (1991); Paul D. Tripodi, Achieving Equal Justice for Women in the Courts, 1 U.C.L.A Women’s L.J. 209 (1991); Natalie Loder Clark, Crime Begins at Home: Let’s Stop Punishing Victims and Perpetuating Violence, 28 Wm. & Mary L.Rev. 263, 288-89 (1987).

Domestic violence is a term of art which describes a pattern of abusive and controlling behavior which causes ipjury to the victim. Peranio v. Peranio, supra, 280 N.J.Super. at 52, 654 A.2d 495; see, e.g., Marsha J. Kleinman, Family Violence: It can be a killer, 41 N.J. Psychologist (1991); Courtney N. Esposito, Abuse: Breaking the Cycle of Violence: The Victim’s Perspective, 8 Trends in Health Care, Law and Ethics (Spring 1993), reprinted in Domestic Violence (New Jersey Institute of Continuing Legal Education 1993).

The Prevention of Domestic Violence Act (repealed, L. 1991, c. 261 § 20, reenacted L. 1991, c. 261 § 1), N.J.S.A. 2C:25-17 to -33, mandates that acts alleged by a plaintiff to constitute domestic violence must be evaluated in light of the prior history of domestic violence between the parties including previous threats, harassment and physical abuse in addition to whether immediate danger to the person or property is present. Peranio v. Peranio, supra, 280 N.J.Super. at 54, 654 A.2d 495; N.J.S.A. 2C:25-29a(1) and (2). This requirement contemplates the pattern of abuse of domestic violence from which the Legislature sought to protect the battered victims — thereby acknowledging that domestic violence is more than an isolated deviant act.

A “battered woman” is defined as:

a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without any concern for her rights____ [I]n order to be classified as a battered woman, the couple must go through the battering cycle at least twice.
[Leonore E. Walker, The Battered Woman, xv (1979).]

The three distinct phases of the battering cycle are the tension building phase, characterized by minor battering incidents; the explosion or acute battering incident, characterized by out of control rage on the part of the batterer; and the calm, loving *614respite phase, characterized by loving and kind behavior on the part of the batterer. Id. at 55-67, 654 A.2d 495; State v. Kelly, 97 N.J. 178, 193, 478 A.2d 364 (1984). In the battered women’s syndrome, minor battering incidents may trigger or escalate violent conduct. Ibid. Thus, because of the potentiality of emotionally explosive situations courts prohibit parties from contact and communication with each other.

The Legislative, Executive and Judicial branches of government in the State of New Jersey have taken a strong position with regard to domestic violence.

When the Legislature enacted the Prevention of Domestic Violence Law, N.J.S.A. 2C:25-17 to -33 it declared its purpose to be as follows:

[t]he legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.
[Ibid.]

At the signing of amendments to the Prevention of Domestic Violence Law on August . 12, 1994, Governor Christine Whitman said:

I’m here to encourage the victims to seek the protection of the law; to say to them that from now on, you are going to receive that protection---- We are now sending a very clear signal that we expect action and that there are certain activities that are not going to be tolerated, whether they take place behind closed doors, between people who know are another or among strangers on the street.
[excerpts in Ivette Mendez, Shielding the Victim — Whitman Enacts Broader Tougher Domestic Abuse Laws, The Star Ledger, August 12, 1994, at 1, 13.]

The New Jersey Court System led the nation in investigating the extent to which gender bias existed in the court system and in developing educational programs to eliminate it. The Domestic Violence Subcommittee of the New Jersey Supreme Court Task *615Force on Women in the Courts initially commented on the trivialization of the plight of the domestic violence victim. New Jersey Supreme Court Task Force Report, supra, 9 Women’s Rts. L. Rpt. at 150.

The Judicial Council of California stated:

Again and again, this committee heard testimony that police officers, district and city attorneys, court personnel, mediators, and judges — the justice system — treated the victims of domestic violence as though their complaints were trivial, exaggerated, or somehow their own fault.
[,Judicial Gm.mil of California, Achieving Equal Justice for Women and Men in the Cmrts, the Draft Report of the Judicial Cmndl Advisory Committee on Gender Bias in the Cmrts, § 6, at 4-5 (1990).]

Other reports have addressed this issue. District of Columbia Courts, Final Report of the Task Force on Racial and Ethnic Bias and Task Force on Gender Bias in the Courts, 123-24 n. 199 (1992); Gender and Justice in the Courts: A Report to the Supreme Court of Georgia by the Commission on Gender Bias in the Judicial System, 20-21 (1991); Kentucky Task Force on Gender Fairness in the Courts, 29-31 (1992); Report of the Special Joint Committee on Gender Bias in the Courts, 2-5 (1989); Minnesota Supreme Court Task Force For Gender Fairness in the Courts, Final Report, reprinted in 15, Wm. Mitchell L.Rev. 825, 875-77 (1989); Report of the Special Joint Committee on Gender Bias in the Courts, 2-5 (Md.1989); Minnesota Supreme Court Task Farce for Gender Fairness in the Courts, reprinted in 15, Wm. Mitchell L.Rev., 825, 875-77 (1989).

A case of this nature with a prior pattern of domestic violence warrants serious reasoned judgment in light of the prior history and specific acts involved. To characterize B.H.’s conduct of mailing two torn-up support court orders under these circumstances as minor irritants, inconsequential acts or infantile tweakings is to trivialize M.H.’s plight.

For the reasons expressed, I respectfully dissent in part from the majority opinion. With regard to defendant, B.H.’s Points II and III, I would affirm the judgment of conviction for the reasons *616set forth by Judge George L. Seltzer in his oral opinion of August 19,1993.

The recent case of State v. Ettman, No. A-1833-94 (App.Div. August 21, 1995), is worth noting but is not cited as authority. See R. 1:36-3; see also Falcon v. American Cyanamid, 221 N.J.Super. 252, 261, 534 A.2d 403 (App.Div. 1987). In that case, the husband sent two support checks with the initials "O.J.” written on them. This court affirmed the trial judge’s finding that the insertion of the initials "O.J.” on both support checks constituted a “communication'' likely to cause annoyance or alarm and was done with the purpose to harass. Thus, the court affirmed the convictions for violation of a final restraining order contrary to N.J.S.A. 2C:29-9(b) and harassment contrary to N.J.S.A. 2C:33-4(a).