When can one’s well intentioned conduct cross the line into a form of domestic violence under New Jersey’s Prevention of Domestic Violence Act? That was the question addressed by the Appellate Division in P. O’D v. J. O’D, where it affirmed the trial court’s entry of a final restraining order against the defendant mother under the PDVA based on the trial court’s finding that the wife harassed her ex-husband. Two children were born of the marriage, and the parties’ Property Settlement Agreement (PSA) provided that the parties would equally share residential custody (2 or 3 weekdays and alternating weekends).
The husband testified during a final hearing on a prior temporary restraining order that, starting in September 2007 for a 3-month period, the wife started calling him late at night and using profanity during their conversations. According to his testimony, there were a series of phone calls where the wife would keep calling until he would answer the phone. He further alleged, and the wife did not deny, that she started abusing alcohol at this time. On one night within the 3-month period, the wife threatened the husband’s well-being during her phone calls. A couple of days later, the husband was notified by the wife’s boyfriend that the children were in danger and that the husband should take them from her mother’s custody, which he did successfully.
In obtaining the TRO, the husband also alleged at the time that the wife repeatedly showed up at his residence without notice or invitation, banged on the door if no one answered and would even enter the residence when the husband was not home, using obscenities towards his second wife about him. Regarding the wife’s alcoholism, he added that on one occasion, the wife drove drunk with their son in the car where the son was forced to grab the wheel to avoid an accident.
The parties executed a Consent Order at the final hearing, agreeing to restrain each party from entering the residence of the other; restraining communications between them unless they dealt with the children and, in such cases, communications were to be made in writing unless in case of a life or death emergency; transferring custody of the children to the husband; providing the wife with supervised visitation for a 30-day period following the date of the Order; and requiring the wife to attend and demonstrate compliance with an after-work alcoholic rehabilitation program and counseling during the 30-day period. Should she fully comply, shared parenting time pursuant to the PSA would resume. While the parties never executed the Consent Order, they both testified at the subsequent hearing forming the basis of the appeal that they believed they were bound by its terms.
One month later, the wife submitted proof to the husband of her completion of the program and counseling, but the husband refused to turn the children over to the wife, asserting that the wife needed to provide breathalyzer results and a urine analysis demonstrating her non-consumption of alcohol. The police intervened at the wife’s call and the husband agreed to return the children to her the following day after he took them to a company holiday party. During the party, however, the wife repeatedly called the parties’ son to find out when the children would be brought to her and after the party she texted the husband with the same question. Shortly thereafter, the children were brought to her, but, according to the wife, the son was very upset because the husband was going to be divorced from his second wife.
Apparently this information prompted the wife to call the husband four times that night within a few minutes of each other, but none were answered. The wife then called the husband’s second wife twice shortly thereafter, to which the husband responded with a text message telling her to stop calling. The mother soon after responded that she needed to talk to him about their son, to which the husband responded by calling the son directly to see that everything was okay. The husband then texted the wife to tell her to stop calling, that she had ruined the work party by calling the son repeatedly and that he was not allowed to call. The mother then responded that they needed to talk about their son and that she was coming over to his place, to which the father responded not to come over and not to call. The wife again replied that she was not crazy and that they needed to talk about their son, subsequently texting again that it was about the son.
The wife went to the husband’s house uninvited and began banging on the door and loudly demanding to speak with the husband when she was not allowed in. Approximately 15 minutes later, she was allowed in, but the parties began shouting at each other. The husband’s second wife commented that the wife was acting like white trash, to which the wife responded by slapping the second wife in the face. The wife then left and the husband’s second wife called the police. A new TRO was entered against the wife, but no change in custody was ordered prior to the final hearing. Prior to the final hearing, however, the son found a wine bottle and claimed to have found a glass of wine in the mother’s office. As a result, the son decided to take his sister and went to live with the husband out of concerns for their own safety. The mother, however, denied alcohol abuse.
At the final hearing on this second TRO, the trial judge determined that the wife had engaged in harassment by a preponderance of the evidence. A final restraining order was entered against her, the father was awarded residential custody of the children, joint legal custody was left in place pursuant to the PSA, and the wife was permitted supervised visitation and telephone contact with the children. In so holding, the judge based the conclusion on the entire historical pattern of behavior, including late night telephone calls, coming to the husband’s residence uninvited and also a finding that the wife assaulted the second wife. While the judge found that the wife was motivated out of concern for the son, her conduct was done to harass or annoy the husband.
In affirming the trial court’s decision, the Appellate Division set forth the PDVA’s definition of harassment as:
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 serious annoy such other person.
The trial judge did not specify which section the wife violated, but the Appellate Division found, based on the trial opinion, that section (a) was at issue, which requires proof that: (1) defendant made or caused to be made a communication; (2) defendant’s purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient. The Appellate Division quoted from the New Jersey Supreme Court’s opinion in State v. Hoffman, 149 N.J. 564 (1997), in adding that “annoyance” means to “disturb, irritate, or bother” within the realm of the statute, that a “purpose to harass may be inferred from the evidence presented,” and that the determination may be based on common sense and experience.
Analyzing the present facts, the Appellate Division found sufficient evidence presented to support the trial judge’s findings that the wife acted with a “purpose to harass.” In particular, the Appellate Division noted that, while the mother may initially have been motivated out of concern for the son, by the time she reached the husband’s home (if not sooner) the motivation was transformed while the son had already calmed down. The Court added that the wife’s means to inform the father of the son’s sentiment could be deemed intentionally harassing, especially in light of the late hours and offensive language used. Moreover, the wife’s recent history of conduct cemented the finding, but concluded that the wife’s drinking did not impact the decision based on her claim that she was sober. While the Appellate Division affirmed a finding of harassment under section (a) of the harassment statute, it also found that sufficient evidence existed for such a finding under section (c) as well.
The Appellate Division also rejected the wife’s argument that the trial court’s Order should be vacated because the judge, after finding harassment, did not also find that a restraining order was required to protect the husband. Quoting from its opinion in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), the Court stated that the guiding standard as to “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. N.J.S.A. 2C:25-29a requires that a trial judge consider, in pertinent part:
(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse; and
(2) The existence of immediate danger to person or property.
The Appellate Division noted that, while the trial judge did not specifically address these considerations, the judge’s overall conclusion that the wife’s behavior was harmfully impulsive to those she cared about was sufficient under the Silver standard.
Finally, the Appellate Division rejected the wife’s argument that the husband was tactically using the PDVA against her on the pending issue of child custody in a corresponding matrimonial matter, finding no evidence of same and adding that the son voluntarily left the mother’s custody prior to the final hearing and refused to return to her residence on the date of the hearing. Further, since the custody order was entered without prejudice, the wife could file an application in the matrimonial matter to restore the prior custody arrangement.