RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-3165-15T1
V.W.,
Plaintiff-Respondent,
v.
R.M.B.,
Defendant-Appellant.
——————————————————————————————-
Submitted May 10, 2017 – Decided August 1, 2017
Before Judges Lihotz and Hoffman.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County,
Docket No. FV-20-1028-16.
Law Offices of Jef Henninger, attorneys for
appellant (Brent DiMarco, on the brief).
Weiseman DiGioia, P.A., attorneys for
respondent (Michael T. Simon, of counsel and
on the brief).
PER CURIAM
Defendant R.M.B. appeals from a February 11, 2016 final
restraining order (FRO) entered in favor of plaintiff V.W.,
pursuant to the New Jersey Prevention of Domestic Violence Act,
N.J.S.A. 2C:25-17 to -35 (the Act).1 Because we conclude defendant
did not harass plaintiff, we reverse and vacate the FRO.
I.
We discern these facts from the record. When the parties
divorced, they entered into a marital settlement agreement (MSA),
establishing shared legal and residential custody of their
daughter and son. Plaintiff testified a doctor diagnosed her
daughter with "autism and ADHD" two to three years ago, but
defendant never told her this. Plaintiff only learned about her
daughter's diagnosis when another doctor informed her in November
2015. Defendant testified she did not know about the diagnosis
until plaintiff knew. Defendant explained the second doctor told
them that the first doctor's nurse's notes "mention[ed] autism,"
but defendant never saw those notes. Immediately after this
revelation, plaintiff started "badgering" defendant "via text"
that she was "a horrible mother" and tried "to jump ship on the
divorce because [she] knew things were going to get worse."
Defendant claimed she received "a whole bunch of harassment e-
mails . . . as a result of that."
1
Two months earlier, on December 9, 2015, the court issued an
FRO in favor of R.M.B. against V.W. Because this appeal concerns
the February 2016 FRO, we refer to V.W. as plaintiff and R.M.B.
as defendant.
2 A-3165-15T1
Defendant consequently went to speak with the first doctor,
who apologized and said the nurse probably hit the wrong button
by accident when she was "charting" the visit because the system
was new at that time. Defendant explained, "They amended the
notes from three years ago to say that the diagnosis of [autism
spectrum disorder] was placed in [their daughter's] record by
mistake." At defendant's request, the first doctor's hospital
also agreed to have "a full study team" evaluate their daughter.
On December 9, 2015, the Family Part issued an FRO prohibiting
plaintiff from having any contact with defendant unless it
concerned "the health, safety, and welfare of [their] children."
On January 18, 2016, the parties' daughter had an appointment with
a team of autism professionals who planned to decide whether the
daughter had autism. Plaintiff had physical custody of the
daughter on this date. Plaintiff testified defendant always
scheduled their daughter's appointments, but plaintiff always
either attended or "participated by telephone" when the
appointments were important. Plaintiff admitted defendant "was
in control" during the appointments.
Defendant testified she had "always taken the kids to doctors'
appointments. In [their] nine years of having kids together,
[plaintiff] probably took the kids to the doctor maybe two, three
times." Defendant consequently believed she was going to take
3 A-3165-15T1
their daughter to the January 18 appointment "as usual." She
added that she remembered the judge told them during the December
9, 2015 FRO hearing, namely, to do what they had "always . . .
done." Defendant was also concerned plaintiff "exaggerated" their
daughter's symptoms and was "really hoping and dying to have a
major diagnosis," explaining "[i]t fulfills her emotional needs
for attention." She added, "We're still actually in debate on
whether she had autism or not because the psychologist administered
two instruments that showed no evidence of autism," but "[t]he
neurologist decided, yes, let's just call [it] autism, but it's
mild, high functioning autism."
On January 11, 2016, plaintiff sent defendant a text message,
"So I will be taking [our daughter] on the 18th . . . correct.
When did u plan on telling me that given u knew I had the kids
that day?" Defendant replied, "I sent you all the appointments.
I even explained to you why the neurologist had to be on a different
day . . . . [sic] if you want to [I] can take [our daughter] on
Monday[.]" Plaintiff wrote back, "No u never told me about the
18th and I will take her[.]" Defendant texted, "The neurologist
that was supposed to examine [our daughter] on 1/11 . . . is no
longer with them. That's why I have to take [her] for an additional
appointment on [empty space] for the new neurologists . . . to
examine her[.]" Plaintiff replied, "I am still their mother and
4 A-3165-15T1
have a right to know. I only know when I looked at the portal.
I wish u would just stop this. It's all just gonna hurt OUR
children. Please let's work together for their sake[.]" Defendant
texted back, "Don't text me. I gave you all the information[.]"
Plaintiff responded, "Fine but u will take her. Stress takes a
toll[.]" Plaintiff sent another text: "I will take her I meant[.]"
She added, "Yes, please don't text me ever again except where it
concerns our children[.]"
On January 16, 2016, defendant sent plaintiff a text, "I
. . . want to take [our daughter] to [her appointment] on
monday[.]" Plaintiff texted back, "I will take our [daughter to
her appointment.]" Defendant replied, "I want to take [our
daughter] to [her appointment]. It is an important appointment.
And as always, I take care of the significant appointments. Just
like the judge said. I will pick her up at 8:15 and I will call
you when the appointment begins[.]" Plaintiff responded, "No the
judge didn't say that[,] u did[,] and we both know u did so because
of your job flexibility. It's my time with her and I will take
her[.] I will call u when appointment starts. Please don't text
me again about this issue[.]"
On January 17, 2016, defendant sent plaintiff a text, "I will
pick [our daughter] up at 8:15am[.]" She repeated this text two
minutes later, "I will take [our daughter] to the doctor[.]"
5 A-3165-15T1
Plaintiff replied, "I asked you to please not text me about this
anymore. It's my parenting time and I will take her." Defendant
texted back, "Then I will be at [the appointment] with a copy of
the FRO[.]" Plaintiff replied, "And I will be there with the MSA
showing you are impending [sic] upon my parenting time[.]"
Plaintiff explained, "The custody and agreements in such have not
be[en] changed by a judge[.]"
After this exchange, plaintiff testified she was "[s]cared
stiff" because she was "afraid" defendant "was trying to get [her]
arrested in front of" their children, and she "would never want
[their] children to see anything like that." Plaintiff
consequently asked a friend to accompany her and the children to
the appointment. The friend knew both parties because they had
lived as neighbors before they divorced.
When plaintiff arrived at the appointment with the children
and friend, she told the registrar "about the situation with the
restraining order" and showed her the MSA. The registrar took her
back to a supervisor. While they were waiting "near the front
entrance of the hospital," defendant entered.
Defendant first started screaming at the friend, saying "you
don't belong here, what are you doing here[?]" Defendant then
tried to grab the parties' son away from the friend. Defendant
also started screaming her daughter's name, trying to get her to
6 A-3165-15T1
come to her. Plaintiff said the friend "put her arms out like she
was trying to . . . block everything from happening." Defendant
then "knock[ed]" into the friend, and when defendant tried to "get
over" plaintiff's back, defendant also "knocked" plaintiff.
Plaintiff consequently called the police. A manager eventually
got in between plaintiff and defendant, raising her arms sideways
to keep them separate. Some hospital staff then "took" defendant
"into a room."
Plaintiff introduced the results of that day's subsequent
medical exam. The neurologist concluded, "Based on many of the
above criteria and after extensive conversation with her parents,
[the parties' daughter] does meet criteria for an autism spectrum
disorder."
Defendant disputed much of plaintiff's testimony. Defendant
said that when she entered the lobby, hospital staff "were already
between" her and plaintiff, their children, and the friend. She
could not "get anywhere close to them." She did not "remember"
her "hands touching anything – anybody's shoulder or hands." She
nevertheless admitted she raised her arm for their daughter and
asked her to come to her. Defendant "was upset" and said the
friend "should not be here." Defendant said she had the FRO; she
"made the appointment;" and she "usually . . . accompanies the
kids for all of their medical appointments." Plaintiff then "all
7 A-3165-15T1
of a sudden, was in [her] face." "She said, recording, recording,
recording. She was videotaping, and there was nothing to
videotape." Defendant testified she felt like she had been "set
up." Before anything more occurred, plaintiff walked away with
their children and friend, and hospital staff asked defendant to
go to another room; she complied.
When the police arrived, they told defendant that she could
only join their daughter's appointment by telephone because
plaintiff had shown them the MSA, which stated she had physical
custody of their daughter that day. The hospital staff arranged
for defendant to use a telephone in one of its conference rooms.
The same day, plaintiff filed a domestic violence complaint
seeking a restraining order against defendant. After hearing the
testimony of plaintiff, defendant, and their friend at the February
11, 2016 FRO hearing, the court made the following credibility
finding:
The [c]ourt has observed both the parties
testifying, has observed the witness, and
finds them all to have a certain degree of
credibility. There are some differences in
the testimony among the parties. The
differences are – when looked at, are really
not greatly significant. There's an agreement
on most aspects of what's going on, at least
factually. So, all the parties are found to
be credible, and the witness is found to be
credible.
8 A-3165-15T1
The court then noted that the first FRO "did not change anything
other than the pick up and drop off." The court said, "The
question for this [c]ourt is whether what occurred is harassment
. . . . [I]t doesn't take a lot in this type of case to demonstrate
that." The court then observed when plaintiff's text said she was
going to take the daughter to the appointment, defendant "persisted
on taking her and – texting."
Then, when [she] finally realizes that she's
not going to get anywhere with that, she folds
up the FRO as a sword – not as a shield, as a
sword. Because when you say I'm coming to the
hospital on your visitation day, when you've
told me you're taking the child to see the
doctor on your day and I don't have to, and I
say, well, I'm going to be there anyway, I'm
going to bring the FRO and show up to the
hospital, there's no other purpose in saying
that other than to alarm somebody.
The court therefore concluded, "[P]laintiff has proved by a
preponderance that a predicate act under the . . . Act has been
committed, specifically in this case harassment." The court
consequently entered the FRO under review.
II.
We exercise a limited scope of review over a trial judge's
findings of fact. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of
Am., 65 N.J. 474, 484 (1974). We give due regard to the trial
judge's credibility determinations based upon the opportunity of
9 A-3165-15T1
the trial judge to see and hear the witnesses. Cesare v. Cesare,
154 N.J. 394, 411-12 (1998).
The Act defines domestic violence by a list of predicate
offenses found within the New Jersey Criminal Code. J.D. v.
M.D.F., 207 N.J. 458, 473 (2011). We have held the commission of
any one of the predicate offenses does not automatically mandate
entry of a domestic violence restraining order. Kamen v. Egan,
322 N.J. Super. 222, 227 (App. Div. 1999).
A judge's review of a domestic violence complaint is two-
fold. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006).
The first step is to "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. The acts claimed by "plaintiff to be domestic violence must
be evaluated in light of the previous history of domestic violence
between the plaintiff and defendant including previous threats,
harassment, and physical abuse and in light of whether immediate
danger to the person or property is present." Corrente v.
Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). The second
step asks whether, after finding the commission of a predicate
offense for domestic violence, "the court should enter a
restraining order that provides protection for the victim."
Silver, supra, 387 N.J. Super. at 126. Therefore, "the guiding
10 A-3165-15T1
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 -(6)], to protect the victim from an immediate danger or to
prevent further abuse." Id. at 127. Those factors include:
(1) The previous history of domestic violence
between the plaintiff and defendant, including
threats, harassment and physical abuse;
(2) The existence of immediate danger to
person or property;
(3) The financial circumstances of the
plaintiff and defendant;
(4) The best interests of the victim and any
child;
(5) In determining custody and parenting time
the protection of the victim's safety; and
(6) The existence of a verifiable order of
protection from another jurisdiction.
[N.J.S.A. 2C:25-29(a).]
Here, the judge concluded defendant committed harassment, N.J.S.A.
2C:25-19(a)(13). A person commits the petty disorderly persons
offense of harassment, pursuant to N.J.S.A. 2C:33-4, if, with
purpose to harass another, he or she:
(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;
(b) subjects another to striking, kicking,
shoving, or other offensive touching, or
threatens to do so; or
11 A-3165-15T1
(c) engages in any other course of alarming
conduct or of repeatedly committed acts with
purpose to alarm or seriously annoy such other
person.
For a finding of harassment under N.J.S.A. 2C:33-4, the actor must
have the purpose to harass. Corrente, supra, 281 N.J. Super. at
249. Finding a party had the purpose to harass must be supported
by evidence the party's "conscious object was to alarm or annoy;
mere awareness that someone might be alarmed or annoyed is
insufficient." J.D., supra, 207 N.J. at 487. Additionally, our
courts must be mindful of cases involving "the interactions of a
couple in the midst of a breakup of a relationship." Ibid.
The evidence in the record does not establish defendant
harassed plaintiff pursuant to N.J.S.A. 2C:33-4. The trial court
relied on defendant's texts to conclude she harassed plaintiff.
Defendant simply said, "Then I will be at [the appointment] with
a copy of the FRO[.]" Defendant obviously believed, mistakenly,
the FRO gave her the exclusive right to bring their daughter to
the appointment. Plaintiff responded, "And I will be there with
the MSA showing you are impending [sic] upon my parenting time[.]"
Plaintiff even explained, "The custody and agreements in such have
not be[en] changed by a judge[.]" Plaintiff clearly understood
she was not going to violate the FRO when she brought their
daughter to the appointment. The record does not support a finding
12 A-3165-15T1
that defendant intended to harass plaintiff, N.J.S.A. 2C:33-4;
Corrente, supra, 281 N.J. Super at 249; rather, defendant simply
communicated her intention to enforce what she mistakenly believed
the December 2015 FRO granted her the right to do. "[M]ere
awareness that someone might be alarmed or annoyed is
insufficient." J.D., supra, 207 N.J. at 487. We therefore vacate
the February 11, 2016 FRO and remand to the trial court for the
entry of a confirming order.
Vacated and remanded. We do not retain jurisdiction.
13 A-3165-15T1
V.W. VS. R.M.B. (FV-20-1028-16, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
Combined Opinion