Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Thursday, September 18, 2014

Text message was not harassment for domestic violence

Text message was not harassment for domestic violence





DOCKET NO. A-04536-11T1

August 13, 2014

Submitted January 15, 2014 - Decided

Before Judges Grall and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-2010-12.

B.P., appellant pro se.

Respondent has not filed a brief.


Defendant B.P., who represents himself, appeals from the May 9, 2012 final restraining order (FRO) that a Family Part judge entered against him following a hearing under the Prevention of Domestic Violence Act (DVA), N.J.S.A.2C:25-17 to -35. Having considered defendant's arguments in light of the trial transcript and controlling law, we reverse and remand for a new hearing.
During a relationship that lasted from August 2008 through December 2011, plaintiff and defendant had a daughter, who is now five years old. In the third week of December 2011 defendant moved out of the room where he and plaintiff lived, which they were renting from her uncle. In March 2012, defendant filed a complaint seeking custody of their daughter. The next month, April 2012, plaintiff filed a domestic violence complaint against defendant. In the complaint, plaintiff alleged defendant had harassed her by sending her an excessive number of text messages on April 22 and 24, 2012.
According to the complaint, plaintiff was staying at a "protected address" and defendant's text messages said he knew where she was, which made her nervous because she feared him. Although plaintiff had asked defendant to stop calling, texting, and attempting to reconcile, defendant did not stop. Instead, he began to send long messages accusing her of having relationships with men and women. The complaint further alleged:
[I]n March, the [plaintiff] was walking to the Police Dept[.] to drop off their [daughter.] [T]he [defendant] was stalking her[.] [H]e got out of the car . . . and took the child[.] [T]here were no fights but [plaintiff] was surprised to see him [] because he is not supposed to know her whereabouts. Now the [defendant] is sending her messages which states [sic] he knows her[] home address, he has friends that are watching her, because they live close to her. During the last FRO[] hearing the [defendant] was told to leave the [plaintiff] alone, and to keep the communication limited to their [daughter]'s well-being only[.] [T]he [defendant] has refused to follow said recommendation[.] This is making the [plaintiff] uncomfortable and afraid.
The complaint referred to a hearing concerning a previous domestic violence complaint that had ultimately been dismissed. Based on the new complaint, the court issued a temporary restraining order and scheduled a final hearing for May 3, 2012.
Plaintiff and defendant were the only witnesses to testify at the hearing. Plaintiff testified that she had to leave the room she was renting from her uncle because defendant would not leave her alone. Because defendant was bothering other people who lived at the same location, and had threatened to take their daughter away from plaintiff, plaintiff spoke with someone employed by the Division of Youth & Family Services (the Division),1 who helped her move to a confidential location. Plaintiff moved to the location in late February or early March, 2012.
Around the time plaintiff moved to the confidential location, defendant filed a complaint seeking custody of their daughter. The following month, plaintiff filed the domestic violence complaint that resulted in the FRO at issue in this appeal.
Although plaintiff alleged that defendant had harassed her on April 22 and 24 by sending her excessive text messages, she admitted at trial that on April 20, she initiated communications with defendant by sending him a text message to come and get their daughter. Defendant responded with a text message and the parties continued to exchange text messages throughout the day. The following day, April 21, they exchanged no messages. The next day, April 22, was the first of the two days on which, as alleged in the complaint, defendant began to harass plaintiff by sending her excessive messages.
On April 22 plaintiff and defendant separately drove to a police station where plaintiff dropped off her daughter and defendant picked her up. Defendant said he wanted to speak to plaintiff about the custody case. Because plaintiff was in a taxicab and had to leave, she told defendant to call her later. That night, between 7:00 and 8:32, defendant received the six messages that she claimed were harassing.
Although plaintiff had her cell phone with her when she testified, and though she had not erased the text messages that she claimed constituted harassment, neither the lawyers nor the court had her read all of the messages into the record. Consequently, the content of some of the messages is not entirely clear. In the first message, defendant said that he was waiting for plaintiff, that he had tried to call her, and she did not answer. Although the timing is uncertain, it appears that plaintiff and defendant spoke after defendant sent the first message. During the conversation, defendant discussed reconciling with plaintiff. Plaintiff said she would not go back with him, and he said he would change, but she rejected his offer to reconcile. She said that she had to leave and told him not to bother her anymore. Following the phone call, defendant sent the remainder of the text messages plaintiff complained about.
Plaintiff testified that in the other messages defendant said he knew where she was, discussed reconciliation, and accused plaintiff of going out with men. Defendant next sent her a text saying that when he could not sleep, he says "whatever comes to mind." Those messages were followed by one accusing plaintiff of going out with women, and others accusing her of drinking alcohol or doing drugs. He also said that he had acquaintances who knew where she lived. Plaintiff responded to the messages by telling defendant to leave her alone.
The next day, April 23, plaintiff received three messages from defendant between 10:16 in the morning and 7:53 in the evening. She did not allege in her complaint that those messages were part of defendant's harassment of her. In the messages, defendant stressed the urgency of plaintiff calling him about custody because the following day he was going to see his attorney. He also "placed another message telling [plaintiff] that . . . the daughter of the . . . man that lived next door was . . . sending greetings."
On April 24, the second day plaintiff claimed to have received harassing text messages, defendant sent her a message at 5:00 in the morning. In that message, defendant said that he knew everything about plaintiff. Later that day, defendant sent either two or three other messages, one at 10:13 a.m. and one at 6:39 p.m. In the morning message, defendant asked plaintiff if their daughter could call him, and asked plaintiff to call him back; otherwise, he would make a report to the Division. Plaintiff explained that the messages made her anxious and nervous, and that she was fearful because of the way defendant was acting.
During both direct and cross-examination, plaintiff testified that at some point on April 22, defendant sent her a picture of the woman he said he intended to marry. He followed up with a message telling plaintiff the woman's name. Defendant also told her that though the woman was a very lovely person, he wanted plaintiff to know that she was the first love of his life. Then defendant said he wanted to talk to plaintiff about reaching a custody agreement so that they did not have to go to court.
Plaintiff conceded on cross-examination that defendant never sent her a text saying that he knew where she was staying. She claimed, however, that defendant made the statement in a phone call. Plaintiff was also unable to point to a text message in which defendant accused her of having relationships with men and women. When confronted with the actual text messages and the absence of that accusation, plaintiff changed her testimony and said defendant had made the accusations either in phone calls or when they met to exchange their daughter.
Plaintiff also testified about earlier incidents of alleged domestic violence between her and defendant, some of which formed the basis for her first complaint. She explained that she had filed for a restraining order in February 2012 because defendant was "always bothering [her]" and told her things that made her afraid. He said he was going to take their daughter away and made threats based on plaintiff's immigration status. Defendant also texted her in March 2012; he told her that one of his friends had said she was living in a shelter. Plaintiff further described an incident that took place four weeks before the FRO hearing. She said that when she went to pick up her daughter from defendant at the police station, he told her that she "was going to cry tears of blood and [she] told him to let a judge decide that."
Defendant testified that he and plaintiff had once separated in November 2011 then reconciled after communicating through text messages and by telephone. After they separated permanently, plaintiff filed a domestic violence complaint against him. That complaint was dismissed in March 2012. Following the dismissal of that complaint, defendant no longer wanted to communicate with plaintiff and asked that they exchange custody of their daughter at a police station or a courthouse. Between the time the first domestic violence complaint was dismissed, and April 24, when plaintiff filed the second domestic violence complaint, the two were getting along and communicating about their daughter.
Defendant claimed that he sent a picture of the woman he intended to marry to plaintiff on April 22 so that their daughter could see the woman and understand that they would be spending time together. Defendant intended to communicate that even though he was going to remarry, his daughter would always come first. In response, plaintiff sent him a message saying "don't f*** with me, do what . . . you have to do." Defendant was served with the second domestic violence complaint at 7:16 on the evening of April 24, 2012.
Defendant disputed that he had sent plaintiff an excessive number of text messages. He claimed that he and plaintiff communicated through text messages, and he could not send long text messages so he had to break them up and send them in parts. Defendant also denied that he knew where plaintiff was staying.
Defendant claimed that the message he sent to plaintiff at 5:00 a.m. on April 24 was a mistake. He said that he prepared the message the previous evening but was interrupted by a phone call and did not send it. The next morning, at 5:00 a.m., his telephone was on a pillow and he "sort of . . . pocket dial[ed]." The message said that he accepted plaintiff for what she was, and he also accepted her way of living, because he knew all about her and her way of doing things. He again denied knowing where plaintiff was living or telling her that he knew where she was. The other messages defendant sent on April 24 were his efforts to have plaintiff permit his daughter to talk to him on the telephone.
Defendant alleged that after plaintiff filed the domestic violence complaint, her brother told him that she would dismiss it if he would dismiss his custody action. Plaintiff claimed it was defendant who approached her brother and offered to dismiss the custody suit if plaintiff would dismiss the domestic violence complaint.
The trial court found plaintiff's testimony more credible than that of defendant. The court rejected defendant's assertion that their daughter, who was at the time not even three years old, "detail[ed] behaviors by her mother with kissing other people." The court also rejected defendant's explanation concerning the text he sent at 5:00 a.m. on April 24, 2012.
The court recognized that plaintiff needed "to establish a predicate act of domestic violence from the allegations contained from the April 22 and 24 communications, as well as[] her other statements in her complaint and her testimony . . . regarding contact that she had with the defendant during [the] exchange of their daughter[.]" The court further explained that it had to evaluate the incidents of the 22nd and the 24th in the context of "how the plaintiff and defendant might interpret the communications between them."
Next, the court acknowledged that the predicate act plaintiff alleged was harassment under N.J.S.A. 2C:33-4, and under that statute a person commits an offense when,
with a purpose to harass the other person, they make or . . . cause to be made a communication here, in terms of what I find to be applicable, under sub-section A, in . . . any manner likely to cause annoyance or alarm to that person, or under sub-section C, engages in any other course of alarming conduct with the purpose to alarm or seriously annoy the other person.

The court found that plaintiff had made it clear to defendant she was willing to communicate with him "exclusively for the purpose of discussing the issues regarding their daughter." After recounting the testimony of the parties and making its credibility findings, the court made its decision:
Again, . . . there are just inconsistencies in [defendant's] version of events that cause this court not to find his testimony to be credible. As a result, I do find that the plaintiff . . . has proven a predicate act of domestic violence, under the harassment statute. Further, I find that there is a strong likelihood that in the absence of a final restraining order, that she will continue to be subjected to future acts of domestic violence.

As a result, [t]he [c]ourt finds it appropriate for a final restraining order to issue at this time.

The court issued the order and defendant appealed.
We begin with our standard of review and by reiterating established procedural and substantive legal principles that apply to domestic violence cases. The scope of our review of an FRO is limited. Cesare v. Cesare154 N.J. 394, 411 (1998). Generally, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. As our Supreme Court has explained, "[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. For that reason, we give substantial deference to a trial court's findings of fact and conclusions of law, and we will disturb a trial court's findings and conclusions only when they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence[.]'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.65 N.J. 474, 484 (1974)).
We bear in mind when applying that standard that defendants charged with domestic violence are entitled to ordinary due process protections. J.D. v. M.D.F.207 N.J. 458, 478 (2011). Due process requires that defendants receive "notice defining the issues and an adequate opportunity to prepare and respond"; and "forbids the trial court to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint." Ibid. (citations and internal quotation marks omitted). For that reason, "trial courts should use the allegations set forth in the complaint to guide their questioning of plaintiffs, avoiding the sort of questions that induce[] plaintiff[s] . . . to abandon the history revealed in the complaint in favor of entirely new accusations." Id. at 479.
Nevertheless, if a court determines "testimony might reveal that there are additional prior events that are significant to [its] evaluation, . . . the court must recognize that if it allows that history to be expanded, it has permitted an amendment to the complaint and must proceed accordingly." Id. at 479-80. That may require, depending on the circumstances of the case, adjourning the hearing so that defendant receives proper notice defining the issues and an adequate opportunity to prepare and respond. See id. at 480.
Substantively, a trial court hearing an application for an FRO must make two determinations: whether the plaintiff has proved by a preponderance of the evidence that defendant committed an act of domestic violence; and, if so, whether a restraining order is necessary to protect the plaintiff. Silver v. Silver387 N.J. Super. 112, 125-26 (App. Div. 2006). The DVA defines domestic violence as the commission of any one of the fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19(a). One of the enumerated offenses, and the one plaintiff alleged in her complaint against defendant, is harassment, N.J.S.A. 2C:33-4. The statute defines harassment in pertinent part as follows:
Except as provided in subsection e., 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;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; 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.

A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.

Two distinct elements must be established to prove the offense of harassment: a purpose to harass and an action under subsection (a), (b), or (c). See Grant v. Wright222 N.J. Super. 191, 196 (App. Div.), certif. denied111 N.J. 562 (1988). Under N.J.S.A. 2C:33-4(a), "there need only be proof of a single such communication, as long as defendant's purpose in making it . . . was to harass and as long as it was made in a manner likely to cause annoyance or alarm to the intended recipient." J.D.supra, 207 N.J. at 477.
A violation of N.J.S.A. 2C:33-4(c) . . ., by contrast, requires proof of a course of conduct. That may consist of conduct that is alarming or it may be a series of repeated acts if done with the purpose to alarm or seriously annoy the intended victim. In interpreting subsection c., which refers to serious annoyance or alarm, this Court has explained that the phrase means to weary, worry, trouble or offend.

[Id. at 478 (citation and internal quotation marks omitted).]

Our Supreme Court has recognized that "[d]rawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of ordinary domestic contretemps[] presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application." Id. at 475 (citation and internal quotation marks omitted). In view of that weighty responsibility, trial courts must be sure to carefully correlate their factual findings with the elements of a specific subsection of the harassment statute.
That is particularly so when a complaint alleges that a defendant has committed harassment by excessive "texting," which has been defined as "'[t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices.'" L.M.F. v. J.A.F., Jr.421 N.J. Super. 523, 526 (App. Div. 2011) (alteration in original) (citation omitted). There, we recognized that "[o]ur ability to instantaneously and effortlessly send electronic messages has created a gateway unfettered by reflection and open to rash, emotionally driven decisions. The ease and speed by which we transmit electronic messages has also created a commensurate expectation of an equally instantaneous response from the recipient." Id. at 534. We also recognized the corresponding strain that technology and "the complexity of human interactions . . . place on Family Part judges as they struggle to distinguish between the cases that merit judicial intervention and those that do not." Ibid.
After evaluating the record in light of the foregoing principles, we are constrained to reverse the FRO and remand for a new hearing. From a procedural perspective, the hearing was flawed. Over defendant's objection, the trial court permitted plaintiff to testify about allegations she made against defendant when she filed the previous domestic violence complaint. Those allegations were not specified in the complaint that was the subject of the hearing. The court apparently determined that plaintiff's "testimony might reveal that there [were] additional prior events that [were] significant to [its] evaluation, . . . [but did not] recognize that [by] allow[ing] that history to be expanded, it ha[d]  permitted an amendment to the complaint and [was required to] proceed accordingly." J.D.,supra, 207 N.J. at 479-80. The court made no effort to determine whether defendant was aware of the specific allegations or needed an adjournment to marshal additional evidence, arrange to present other witnesses, or otherwise adequately prepare and respond.
Substantively, it is unclear whether the court found that defendant had committed harassment underN.J.S.A. 2C:33-4(a), (c), or both sub-sections. Although the court summarized in its opinion the elements of each sub-section, when it announced its conclusion it did not correlate any facts with the elements of either. Moreover, defendant established on cross-examination that some of the text messages that plaintiff characterized as harassing involved communications about their daughter or non-threatening comments about their relationship; and some of the communications that plaintiff said frightened her were not even contained in the text messages.
The court did make a credibility determination that defendant sent one message at five o'clock in the morning. But the court did not explain whether it found under N.J.S.A. 2C:33-4(a) that the message constituted a communication that was made "at [an] extremely inconvenient hour[]," or in "any other manner likely to cause annoyance or alarm"; or whether the communication was part of a "course of alarming conduct" under N.J.S.A.2C:33-4(c). And, if the former, we question whether evidence that a text message transmitted at 5:00 a.m., absent evidence of when it was received or likely to be accessed, could alone constitute harassment under N.J.S.A. 2C:33-4(a).
For the foregoing reasons, we reverse the FRO and remand for a new hearing. We do not retain jurisdiction.
Reversed and remanded.

1  Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.