R.G. v. R.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0945-15T3

R.G., APPROVED FOR PUBLICATION

Plaintiff-Respondent, March 14, 2017

v. APPELLATE DIVISION

R.G.,

Defendant-Appellant.

_______________________________

Argued January 19, 2017 - Decided March 14, 2017

Before Judges Lihotz, Hoffman and Whipple.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Somerset

County, Docket No. FV-18-0318-16.

James A. Abate argued the cause for

appellant (James A. Abate, LLC, attorneys;

Mr. Abate, of counsel; Randi S. Greenberg,

on the brief).

Rebecca A. Berger argued the cause for

respondent (Charny, Charny & Karpousis,

attorneys; Ms. Berger, of counsel and on the

brief).

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

Defendant R.G. appeals from the entry of a final

restraining order pursuant to the Prevention of Domestic

Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). On appeal,

defendant argues the Family Part lacked jurisdiction to enter a

final restraining order and maintains the altercation with

plaintiff was not domestic violence. We reject defendant's

jurisdictional challenge, noting he and plaintiff, R.G., who are

brothers, fall within the amended jurisdictional provision of

N.J.S.A. 2C:25-19(d). However, we agree the facts as presented

do not constitute conduct sufficient to support the entry of the

order. Additionally, we address evidentiary rulings warranting

reversal.

We recount the facts found in the trial testimony provided

by plaintiff and defendant, along with documents admitted into

evidence during the final hearing.

Defendant and his siblings grew up in New Jersey, but he

moved to Long Island, New York, approximately thirty-six years

ago. His younger brother, plaintiff, and his sister remained in

New Jersey and principally provided care for the parties'

elderly parents. As their parents' health began to fail, the

bulk of responsibility fell to plaintiff, who was empowered to

make decisions for each parent regarding "physical care and

treatment or to make decisions to refuse medical care and

treatment." Plaintiff also was named the attorney-in-fact to

handle his parents' affairs.

2 A-0945-15T3

In spring 2015, the parties' mother contracted pneumonia.

Unfortunately, this led to medical complications. When she was

discharged from the hospital, plaintiff commenced steps to place

her in a skilled care facility. Defendant and his sister

objected to relocating their mother from her home and away from

her husband. Soon the parties' sister was convinced their

mother and father needed a level of care neither she nor her

brothers could provide. Defendant, however, wanted to explore

possible alternatives to keep his parents in their own home.

Beginning in May 2015, defendant articulated his opposition

to plaintiff's proposal to enroll his mother in a facility and

later move his father to the same place. Using text messages

sent to his siblings, defendant expressed his repudiation of the

decisions and those who made them. Defendant testified he was

making arrangements to provide care for his parents when

plaintiff sent him an email stating he permanently moved their

mother to the proposed facility. Defendant responded with

disgust and disappointment because plaintiff failed to consider

his plan to provide care for his parents in their home. The

charged comments also contain defendant's desire that plaintiff

suffer in his old age.

Plaintiff's email sent ten days later included instructions

to defendant for visiting his parents. In part, the message was

3 A-0945-15T3

informational and, in part, condescending. It also contained

directives so the parties would avoid seeing each other,

apparently because defendant previously texted he did not want

to see plaintiff "or else." Defendant's response to plaintiff's

email was crude, defensive, and angry.

Also introduced at trial were copies of several text

messages sent by defendant to plaintiff and his sister.

However, the copies of the messages in the record do not include

any prompting texts from plaintiff or plaintiff's replies; we

are given only text messages sent by defendant.

Defendant did not deny he sent the text messages, which

were admitted into evidence. Their content, in part, contains

coarse, gutter language and name calling. Some texts include

defendant's demands for financial documents and state his

intention to engage lawyers and to inform Medicare and Medicaid

about his parents' assets, implying plaintiff and his sister had

not been forthright in making disclosures. In a prickly and

foulmouthed way, the texts convey defendant's displeasure his

mother was taken from her home, she was not encouraged to be

mobile but mostly kept in a wheelchair, and his father was not

told his wife would never return home. Further, defendant

relates his belief his father was left alone, and plaintiff was

ignoring defendant's calls and demands.

4 A-0945-15T3

Plaintiff included one comment he sent, that informed

defendant his calls woke their father and rhetorically added,

"you need to harass dad also?" In response, defendant wrote:

I luv to harass u now since u cannot speak

like a man

It will get worse and worse

Stand up to your brother like a man and

discuss this U r making it worse

U owe better to ur parents

There are other texts, which have none of these traits. Rather,

they convey defendant's desire to provide care for his parents

or reflect bitterness because of the decisions plaintiff made.

On September 5, 2015, defendant and his wife travelled to

New Jersey to visit his parents, arriving at the facility in the

afternoon. Plaintiff took defendant's wife aside to explain his

parents' conditions and benefits provided by the facility.

Plaintiff testified: "All of a sudden [defendant] comes charging

in, getting in my face in a rage." Defendant told his wife

plaintiff was "a liar," and she should not "listen to him."

Plaintiff's testimony recounted the exchange stating, as he

spoke, defendant repeatedly held an open hand like "a slap"

right next to plaintiff's face, or held his hand in a fist, as

if he were going to hit plaintiff. The argument, where both

brothers were yelling, continued in front of the facility's

residents and nurses. A nurse instructed them to leave.

5 A-0945-15T3

Defendant went outside and plaintiff followed. As the argument

continued, plaintiff asked defendant if he would hit him in

front of their parents or whether he would "do it [hit him] in

front of a cop." Defendant "shoved" him. Plaintiff stated

defendant shoved him six times, during two of which he was

knocked over and his glasses fell off. Police were called and

according to plaintiff, defendant was charged with simple

assault.

Plaintiff responded affirmatively on direct to a series of

leading questions posed by his attorney. He stated "yes," when

asked whether he interpreted defendant's texts and conduct as

posing a threat, whether the actions made him fear for his

safety and well-being, and whether it caused him to fear for the

safety and well-being of his family. Finally, he responded

"yes" when asked if he believed a restraining order was

necessary.

Plaintiff could not relate any history of domestic violence

between himself and defendant. He admitted their relationship

was good until their mother became ill in May 2015. He then

testified, plaintiff's nephew, defendant's son, obtained an

order restraining defendant from contact with him and his

family, two years earlier. Plaintiff went on to detail this

altercation.

6 A-0945-15T3

Defendant testified. He noted plaintiff's series of text

messages and emails omitted information plaintiff sent, which

goaded his responses. He explained plaintiff decided he no

longer wanted to care for their parents and sought a resolution

to aid himself and his wife, by rejecting defendant's

alternative plan to allow their parents to stay together in

their own home. Defendant stated plaintiff "got extremely

pissed-off" because defendant wanted his mother to stay in her

home. Defendant mentioned he felt he was "kicked in the teeth,"

his thoughts were "poo-pooed," and he felt "sandbagged" by

plaintiff and his sister, as they did not even consider his

proposal for their parents' care. He also objected because

plaintiff and his sister were not honest with his parents about

what was happening. He made requests of his siblings "two or

three times" to do small things that would make his mother's

surroundings more comfortable. He believed plaintiff acted for

his own benefit, not in his parents' best interests.

Defendant admitted he resented plaintiff's decision to

send texts rather than calling to discuss these problems, which

defendant felt signaled "a total lack of respect." He admitted

he was "very angry" during the September 5, 2015 altercation,

but asserted plaintiff was also yelling, showed no fear, and

acted to provoke him. Plaintiff would not leave defendant alone

7 A-0945-15T3

with his parents and even followed him when he walked away.

Defendant admitted he shoved plaintiff more than once, but not

six times. Defendant also acknowledged a restraining order,

which was about to expire, was entered in New York because he

slapped his adult son, though he denied injuring his son or

smashing his car as plaintiff asserted.

At the conclusion of the testimony, the trial judge entered

an oral opinion. He concluded the court had jurisdiction, even

though the parties had not resided together for more than thirty

years. He also concluded

defendant engaged in an act of harassment by

telling the plaintiff on several occasions

the following:

Calling him a pompous asshole.

Calling him a pompous ass wipe.

"That's at all [sic] self-

righteous asses, you guys thin[k]

your shit doesn't stink."

The factual support for finding defendant committed the

predicate act of harassment included this cited language from

one email sent by defendant to plaintiff:

What do you think that I am not going to

take care of him [their father] while he's

with me. Your email sounds like you are

lecturing me and telling me how to take care

of him. You righteous prick. You and your

wife always seem to have a better life chip

on your shoulders and that your shit didn't

[sic] stink. Your shit smells like mine,

you asshole. You are the last one who

should be lecturing, you drunk bastard.

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Stop the bullshit. And your family know

[sic] better how to take care of dad.

The judge also recited this language from defendant's texts:

I will tear our family apart.

. . . .

I will break you financially,

morally, physically and mentally.

On July 12th, "I love to harass you

since you cannot speak like a man,

stand up to your brother and

discuss this. It'll get worse and

worse."

On June 27th, "I will come down

there real soon."

On June 13th, "This is not done. I

will tear our family apart. Get

ready."

And June 12th, "I feel like coming

to you and slapping you silly."

Finally. the judge found the September 5 shoving amounted to a

simple assault.

Having concluded plaintiff proved acts of domestic violence

occurred, the judge made findings on the second Silver1 prong,

that is, whether there was immediate danger, which he stated was

not "self-evident." The judge relied on the alleged conduct

between defendant and his son, as proof of prior domestic

violence, and noted defendant's escalating threats, and the

1

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

9 A-0945-15T3

parties' "communications culminat[ed] in a physical dispute."

Accordingly, the judge concluded plaintiff proved an immediate

danger, warranting entry of a final restraining order.

Defendant filed this appeal challenging the final domestic

violence restraining order filed on September 17, 2015. He

argues, the Family Part lacked jurisdiction to entertain

plaintiff's complaint, evidence of the incident involving his

son was not relevant and was erroneously considered, and the

judge mistakenly found an immediate danger warranting the entry

of a final domestic violence restraining order.

Our review of a Family Part judge's findings

following a bench trial is a narrow one.

Cesare v. Cesare, 154 N.J. 394, 411 (1998).

"In our review of a trial court's order

entered following trial in a domestic

violence matter, we grant substantial

deference to the trial court's findings of

fact and the legal conclusions based upon

those findings." D.N. v. K.M., 429 N.J.

Super. 592, 596 (App. Div. 2013), certif.

denied, 216 N.J. 587 (2014). In other words,

we will neither "'engage in an independent

assessment of the evidence as if [we] were

the court of first instance,'" N.J. Div. of

Youth & Family Servs. v. Z.P.R., 351 N.J.

Super. 427, 433 (App. Div. 2002) (alteration

in original) (quoting State v. Locurto, 157

N.J. 463, 471 (1999)), nor "disturb the

'factual findings and legal conclusions of

the trial judge unless [we are] convinced

that they are so manifestly unsupported by

or inconsistent with the competent, relevant

and reasonably credible evidence as to

offend the interests of justice.'" Cesare,

supra, 154 N.J. at 412 (quoting Rova Farms

Resort, Inc. v. Inv[r's] Ins. Co. of Am., 65

10 A-0945-15T3

N.J. 474, 484 (1974)). On the other hand,

where our review addresses questions of law,

a "trial judge's findings are not entitled

to that same degree of deference if they are

based upon a misunderstanding of the

applicable legal principles." Z.P.R.,

supra, 351 N.J. Super. at 434 (citing

Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)).

[N.T.B. v. D.D.B., 442 N.J. Super. 205, 215-

216 (App. Div. 2015).]

Defendant's jurisdictional challenge focuses on the

parties' relationship, arguing plaintiff does not meet the

statutory definition of a "victim of domestic violence."

Applying traditional principles of statutory construction, we

examine the statute's plain language, which is generally the

best indicator of the Legislature's intent. DiProspero v. Penn,

183 N.J. 477, 492 (2005). The words used in the Act are given

their "ordinary meaning and significance", and we must "read

them in context with related provisions so as to give sense to

the legislation as a whole." Donelson v. DuPont Chambers Works,

206 N.J. 243, 256 (2011) (quoting DiProspero, supra, 183 N.J. at

492).

Plaintiff's counsel points out the Act was recently

amended, and modifications became effective prior to the

September 5, 2015 incident. See L. 2015, c. 98 § 2, eff. Aug.

10, 2015. The amendment created a significant change to the

definition of a "Victim of Domestic Violence," N.J.S.A. 2C:25-

11 A-0945-15T3

19(d), which we agree resolves the jurisdictional issue

presented.

Formerly, the statute defined a victim of domestic violence

as "a person . . . who has been subjected to domestic violence

by . . . any person who is a present or former household

member." N.G. v. G.P., 426 N.J. Super. 398, 409 (App. Div.

2012) (quoting N.J.S.A. 2C:25-19(d) (1994), amended by L. 2015,

c. 98 §2, eff. Aug. 10, 2015). Courts struggled to determine

the reach of this provision, especially when deciding what

relationships fell within the net of "former household members."

Ibid. ("In determining whether a defendant is a 'former

household member' under the Act, the inquiry should be whether

the 'perpetrator's past domestic relationship with the alleged

victim provides a special opportunity for abusive and

controlling behavior.'") (quoting Tribuzio v. Roder, 356 N.J.

Super. 590, 595 (App. Div. 2003) (citations omitted)).

The 2015 amendments clarified the statutory definition to

end debate regarding the scope of coverage of "present household

member" by redefining a "Victim of domestic violence" to mean

a person protected under this act and shall

include any person who is 18 years of age or

older or who is an emancipated minor and who

has been subjected to domestic violence by a

spouse, former spouse, or any other person

who is a present household member or was at

any time a household member.

12 A-0945-15T3

[N.J.S.A. 2C:25-19(d).]

Defendant's attack here refers to the prior version of the

statute, making his arguments and prior case law interpretations

inapposite.2 We conclude the statutory amendments express the

Legislature's intent to broaden the application of this remedial

Act. We are required to construe its provisions liberally.

Cesare, supra, 154 N.J. at 400. See also N.J.S.A. 2C:25-18

(reciting the legislature's intent to provide victims the

maximum protection from domestic abuse). Consequently, we

conclude the Family Part properly exercised jurisdiction over

this dispute.

Next, defendant argues testimony regarding the restraining

order obtained by his son was not relevant to this dispute, and

its introduction interjected inadmissible prejudicial inferences

regarding defendant's behavior. Plaintiff argues the testimony

was limited, and its admission did not represent an abuse of

discretion.

2

In particular, Jutchenko v. Jutchenko, 283 N.J. Super. 17

(App. Div. 1995), which involved adult siblings who had not

lived together since childhood. This court rejected the trial

court's finding of jurisdiction, reasoning, "we do not believe

that the Legislature could have intended the protections of the

Act to extend to conduct related to a dispute between two

persons who have not resided together in the same household for

twenty years . . . ." Id. at 20. The Act's amended

jurisdictional provisions cast doubt on the viability of this

holding.

13 A-0945-15T3

We note defendant, who represented himself before the trial

judge, did not raised this issue. "Because defendant did not

raise this argument below, this issue is reviewed under the

'plain error' standard, which provides reversal is mandated only

for errors 'of such a nature as to have been clearly capable of

producing an unjust result.'" State v. Green, 447 N.J. Super.

317, 325 (App. Div. 2016) (citing R. 2:10-2).

The Act permits consideration of "[t]he previous history of

domestic violence between the plaintiff and defendant, including

threats, harassment and physical abuse[.]" N.J.S.A. 2C:25-

29(a)(1) (emphasis added). Also admissible is "[t]he existence

of a verifiable order of protection from another jurisdiction."

N.J.S.A. 2C:25-29(a)(6). However, in this matter, the admission

of evidence of purported domestic violence between defendant and

a third party other than plaintiff and the trial judge's

reliance thereon presents several problems compelling us to

reverse.

First, "[e]vidence of a person's character or character

trait . . . is not admissible for the purpose of proving that

the person acted in conformity therewith on a particular

occasion . . . ." N.J.R.E. 404(a). The rule specifically

excludes admission of evidence regarding other wrongs or acts

"to prove the disposition of a person in order to show that such

14 A-0945-15T3

person acted in conformity therewith." N.J.R.E. 404(b). The

rule allows, however, admission of evidence of other wrongs

provided the evidence shows "proof of motive, opportunity,

intent, preparation, plan, knowledge, identity or absence of

mistake or accident when such matters are relevant to a material

issue in dispute." Ibid.

When considering the admissibility of evidence of other

crimes or wrongs under N.J.R.E. 404(b), courts are instructed to

apply the standard adopted by the Supreme Court in State v.

Cofield, 127 N.J. 328 (1992), which requires careful analysis of

four factors:

1. The evidence of the other crime must be

admissible as relevant to a material issue;

2. It must be similar in kind and

reasonably close in time to the offense

charged;

3. The evidence of the other crime must be

clear and convincing; and

4. The probative value of the evidence

must not be outweighed by its apparent

prejudice.

[Cofield, supra, 127 N.J. at 338 (citing

Abraham P. Ordover, Balancing the

Presumptions of Guilt and Innocence: Rules

404(b), 608(b), And 609(a), 38 Emory L.J.,

135, 160 (1989)).]

If the trial judge conducts an appropriate analysis under

Cofield, this court will not disturb the judge's ruling on the

15 A-0945-15T3

admissibility of 404(b) evidence, absent a "clear error of

judgment."3 State v. Marrero, 148 N.J. 469, 483 (1997).

Although N.J.S.A. 2C:25-29(a)(1) permits the introduction

of evidence of the "previous history of domestic violence," it

does not authorize introduction of evidence regarding a

defendant's past altercations with others. Rather, N.J.S.A.

2C:25-29(a)(1) and (6), limits the trial court's consideration

of evidence to "the previous history of domestic violence

between plaintiff and defendant," and the introduction of a

"verifiable order of protection from another jurisdiction,"

respectively. This is "[b]ecause a particular history can

greatly affect the context of a domestic violence dispute,"

thus, "trial courts must weigh the entire relationship between

the parties and must specifically set forth their findings of

fact in that regard." Cesare, supra, 154 N.J. at 405. Any

other evidence presented must meet the test for admission as

provided by our Rules of Evidence. See N.J.R.E. 101 to 1103.

Plaintiff's testimony describing an incident between

defendant and defendant's son was not permitted by N.J.S.A.

3

Subsequent to issuing its opinion in Cofield, the Court has

instructed the second factor of the Cofield analysis, regarding

considerations of whether the conduct is "similar in kind and

reasonably close in time," is not required in every case

implicating a Rule 404(b) dispute. See State v. Williams, 190

N.J. 114, 131-132 (2007).

16 A-0945-15T3

2C:25-29(a)(1). Nor was it offered to be used for something

other than proof of defendant's bad character. Indeed, no

Cofield analysis was made by the judge prior to the introduction

of the evidence. In fact, the judge made no specific review of

the relevance or admissibility of the proffered bad acts

evidence.

Second, our careful review of the record reveals no

foundation established plaintiff testified based upon his

personal knowledge. See N.J.R.E. 602 ("[A] witness may not

testify to a matter unless evidence is introduced sufficient to

support a finding that the witness has personal knowledge of the

matter."). Plaintiff never stated he was present and witnessed

the events between defendant and his son. In fact, he was never

asked to provide a foundation for the testimony. In our view,

plaintiff was repeating what others told him. Such testimony

represents inadmissible hearsay. N.J.R.E. 802 ("Hearsay is not

admissible except as provided by these rules or by other law.").

Contrary to plaintiff's assertion, the facts at hand are

unlike the statements offered by the plaintiff in Rosiak v.

Melvin, 351 N.J. Super. 322 (Ch. Div. 2002). In Rosiak, the

defendant told the plaintiff he had assaulted his first wife.

This admission provided context for the plaintiff's fear of

statements the defendant later made to her, when they ended

17 A-0945-15T3

their relationship. Id. at 324-25. In this matter, plaintiff's

statements amounted to nothing more than what he was told by

others, not what he was told by defendant.

We also reject the notion defendant's responsive statements

to plaintiff's testimony, admitting he slapped his son and a

restraining order was about to expire, are curative. For these

reasons, we find no basis for the admission of plaintiff's

testimony regarding defendant's alleged history of domestic

violence.

Further, when determining the need for a final restraining

order, a matter the judge characterized as "not self-evident,"

the judge specifically relied upon "the prior history."

However, there was no prior history between these parties, who,

according to plaintiff, enjoyed a "good" relationship prior to

their mother's latest illness. The judge did not identify what

he meant by "given the prior history." Certainly, the reference

encompassed plaintiff's irrelevant and inadmissible hearsay

testimony. Although we are aware of the challenges posed when

one party in a trial is self-represented, the judge, as

gatekeeper, must assure a fair process. See D.N., supra, 429

N.J. Super. at 602.

We conclude the trial judge abused his discretion in

permitting the introduction of inadmissible evidence of

18 A-0945-15T3

defendant's prior bad acts in the form of hearsay. N.J. Div. of

Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 571 (App.

Div. 2015). Further, the necessary finding of a need for a

final restraining order was not based on admissible,

substantial, and credible evidence, Cesare, supra, 154 N.J. at

411-12, but rather upon inadmissible testimony as suggesting a

pattern of abuse. We conclude this rises to plain error and are

constrained to reverse the order.

Defendant next argues the trial evidence does not support

the necessary findings required by Silver to support entry of a

final restraining order. Silver, supra, 387 N.J. Super. at 126-

27. This court made clear "the commission of any one of the

predicate acts enumerated in N.J.S.A. 2C:25-19(a) does not

automatically warrant issuance of a domestic violence

restraining order." Id. at 124 (citing Corrente v. Corrente,

281 N.J. Super. 243, 248 (App. Div. 1995)). Thus, the trial

court must find a predicate offense and also find a basis, upon

the history of the parties' relationship, to conclude the safety

of the victim is threatened and a restraining order is necessary

to prevent further danger to person or property. Id. at 125-26.

Here, the trial judge concluded defendant committed two

predicate acts, harassment and simple assault. We consider the

evidence supporting these offenses.

19 A-0945-15T3

"Harassment is the most frequently reported predicate

offense among those statutorily recognized in N.J.S.A. 2C:25-19

as a basis for a finding of domestic violence." L.M.F. v.

J.A.F., Jr., 421 N.J. Super. 523, 533-34 (App. Div. 2011)

(citing J.D. v. M.D.F., 207 N.J. 458, 476 (2011)). The petty

disorderly persons offense of harassment requires a person,

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.

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

In this matter, we infer the trial judge found defendant

violated subsection (c) of N.J.S.A. 2C:33-4, as subsection (a)

is generally focused on the mode of speech employed, and not a

statement's content. State v. Hoffman, 149 N.J. 564, 583-84

(1997). Examining subsection (c), there is no dispute defendant

authored and sent the text messages at issue and almost all

content is offensively coarse. The question for determination,

however, is whether defendant sent the message with the intent

20 A-0945-15T3

to harass. N.J.S.A. 2C:33-4. Our review of the record reveals

no evidence to support this necessary element, which leads us to

reverse. Cesare, supra, 154 N.J. at 412.

The Supreme Court has emphasized the care a trial court

must exercise to distinguish between ordinary disputes and

disagreements between family members and those acts that cross

the line into domestic violence. J.D., supra, 207 N.J. at 475-

76. A plaintiff's assertion he or she felt harassed is

insufficient to satisfy the statutory element. Id. 484. As the

Court held, a "victim's subjective reaction alone will not

suffice; there must be evidence of the improper purpose." Id.

at 487.

When stating his findings, the trial judge listed some of

defendant's text messages and recited excerpts from one of

defendant's emails. Relying on these excised statements, he

concluded defendant committed harassment. We disagree.

Importantly, defendant did not initiate the email

conversations, yet the factual findings fail to mention the

content of the precipitating emails from plaintiff. As to the

text messages, again the judge's findings do not mention

plaintiff's transmissions, leaving us unsure whether the judge

reviewed plaintiff's side of the conversation. The record

provided on appeal includes only select portions of the

21 A-0945-15T3

defendant's transmission and almost all of plaintiff's comments

are blurred or illegible, except for one or two, which

apparently suggest support for his complaint. Thus, we are

unable to analyze the entire text conversations to determine

whether the context shows defendant was sending harassing

communications.

We have no doubt the divergent views regarding placing

their parents in a facility was emotional and highly stressful

for both parties. We also do not discount defendant's

inappropriate expressions of anger and disgust for plaintiff's

decision.

Vulgar name-calling alone is not domestic violence. E.M.B.

v. R.F.B., 419 N.J. Super. 177, 182-83 (App. Div. 2011). A

fundamental element making a communication criminal harassment

is the purpose to harass. "'[P]urpose to harass' is critical to

the constitutionality of the harassment offense." State v.

Castagna, 387 N.J. Super. 598, 606 (App. Div.), certif. denied,

188 N.J. 577 (2006). See also State v. L.C., 283 N.J. Super.

441, 450 (App. Div. 1995) (holding the harassment statute was

not enacted to "proscribe mere speech, use of language, or other

forms of expression"), certif. denied, 143 N.J. 325 (1996).

Because direct proof of intent is often absent, "purpose

may and often must be inferred from what is said and done and

22 A-0945-15T3

the surrounding circumstances[,]" and "[p]rior conduct and

statements may be relevant to and support an inference of

purpose." Castagna, supra, 387 N.J. Super. at 606 (citations

omitted). See also H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003)

(the purpose to harass may be inferred from "common sense and

experience."). However, "mere awareness that someone might be

alarmed or annoyed is insufficient." J.D., supra, 207 N.J. at

487 (citing State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div.

1989)). That is, a plaintiff's subjective reaction to the

conduct, standing alone, is insufficient to establish a

defendant acted with improper purpose. Ibid.

The text messages introduced into evidence convey

defendant's concern for his parents' needs and feelings about

permanently leaving their home. They also express frustration

because defendant believed plaintiff was ignoring his phone

calls and possibly isolating him from his father. Moreover,

they are crude, rude, and vulgar. However, isolating the latter

expressions as establishing harassment, without reviewing the

surrounding context, including plaintiff's preceding

communications, is problematic. See L.M.F., supra, 421 N.J.

Super. at 534 ("Our ability to instantaneously and effortlessly

send electronic messages has created a gateway unfettered by

reflection and open to rash, emotionally driven decisions.").

23 A-0945-15T3

Even the comments listed in the judge's findings as apparently

representing threats (i.e., "I will tear our family apart" and

"I will break you financially, morally, physically and

mentally") are preceded by defendant's assertion of his intended

legal action based on purported misfeasance by plaintiff.

In this matter, the judge made no findings to support a

purpose to harass. Other indicia that might circumstantially

prove such a purpose, such as plaintiff telling defendant to

stop his texts, is also absent. Overall, we conclude the record

fails to establish the emails and texts were designed to harass

plaintiff.

The Act "is not designed to interdict all forms of

unpleasant exchanges between parties." Bresocnik v. Gallegos,

367 N.J. Super. 178, 181 (App. Div. 2004). Further, it "is not

a primer for social etiquette and should not be used as a sword

to wield against every unpleasant encounter or annoying

interaction that occurs between household members . . . ."

Ibid. A mere expression of anger between persons in a requisite

relationship is not an act of harassment. The court must

"[d]raw[] 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

24 A-0945-15T3

contretemps.'" See J.D., supra, 207 N.J. at 475 (quoting

Corrente, supra, 281 N.J. Super. at 249-50).

The context of defendant's statements matters. Excising

portions of his statements without weighing the entirety of the

comments, as well as whether they are responsive to something

sent by plaintiff, leads to an unsupportable result. We

conclude the evidence in the record is insufficient to show

defendant acted with a purpose to harass plaintiff. N.J.S.A.

2C:33-4(c). The finding of harassment is reversed.

Our conclusion about the legal insufficiency of the record

to support harassment must not be misunderstood as sanctioning

or excusing defendant's manner of expressing himself. His anger

about being "sandbagged" on issues where he was previously

included is palpable. We cannot overemphasize the impropriety

of his expressions on the subject, which we find were juvenile,

uncouth, foulmouthed, insulting, and belligerent. None of these

statements have a place in civil discourse, despite the

heightened emotionality of the disagreement.

Plaintiff also alleged defendant committed a simple

assault. A simple assault requires the intent to cause bodily

injury. N.J.S.A. 2C:12-1(a)(1). Here, plaintiff testified

defendant repeatedly "shoved" him during the course of their

mutual, heated exchange. Although defendant disagreed on the

25 A-0945-15T3

extent of the physical contact, he admitted he repeatedly shoved

plaintiff and does not deny plaintiff was knocked to the ground.

From this evidence, we can infer defendant's conduct was

purposeful. Accordingly, the judge's finding defendant

committed simple assault, a predicate act under N.J.S.A. 2C:25-

19(a), is supported.

Commission of a predicate act is necessary, but alone

insufficient, to trigger relief provided by the Act. Silver,

supra, 387 N.J. Super. at 126-27 (stating once a plaintiff

establishes a predicate act, the court must determine "whether a

restraining order is necessary, upon an evaluation of the facts

. . . to protect the victim from an immediate danger or to

prevent further abuse"). See also J.D., supra, 207 N.J. at 476

("Merely concluding that plaintiff has described acts that

qualify as harassment and omitting this added inquiry opens the

door to potential abuse of the important purposes that the Act

is designed to serve and threatens to 'trivialize the plight of

true victims' in the process." (quoting Corrente, supra, 281

N.J. Super. at 250)). Application of the Act is not automatic

or rote. The second prong set forth in Silver requires the

conduct must imbued by a desire to abuse or control the victim.

Silver, supra, 387 N.J. Super. at 126-27.

[I]t is clear that the drafters of the law

did not intend that the commission of any

26 A-0945-15T3

one of these acts automatically would

warrant the issuance of a domestic violence

order. The law mandates that acts claimed

by a 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. N.J.S.A.

2C:25-29(a)(1) and (2). This requirement

reflects the reality that domestic violence

is ordinarily more than an isolated aberrant

act and incorporates the legislative intent

to provide a vehicle to protect victims

whose safety is threatened. This is the

backdrop on which defendant's acts must be

evaluated.

[Corrente, supra, 281 N.J. Super. at 248.]

Testimonial evidence showing plaintiff feared his brother

consists of his one-word responses to counsel's series of

leading questions. His testimony lacks a basis for the

response. The record also contains evidence directly refuting

this response. For example, during the September 5 incident,

the argument was mutual and plaintiff followed defendant outside

to continue the argument despite the fact defendant walked away.

Finally, the trial judge noted the tension and stress of both

parties during this difficult time.

In considering whether "immediate danger" was present, the

trial judge found:

In some cases that is self-evident. It's

not so the case here. But I do find that,

given the prior history, given the

27 A-0945-15T3

escalating threats, the nature of the

communications culminating in a physical

dispute, that the second prong of Silver is

satisfied and there is an immediate danger

to this plaintiff warranting the exercise of

a final restraining order.

We have identified the erroneous evidentiary rulings of a

"prior history" and we have rejected defendant's text messages

evince criminal harassment. After tearing away such factual

support, the conclusion a final restraining order was necessary

to protect plaintiff crumbles.

While we find defendant's manner of expressing himself

unacceptable and repugnant, after considering the entire record,

we cannot conclude the parties' interaction on September 5

implicates the public policy concerns identified by the

Legislature, underpinning the need for a domestic violence

restraining order.

The ultimate issue is whether, in light of

these factors, the victim was, at the time

of the precipitating event, subjected to

potential abusive and controlling behavior

related to and arising out of the past

domestic relationship. If so, the victim is

in need of and entitled to the special

protection provided by the Act.

[Tribuzio, supra, 356 N.J. Super. at 597.]

The critical fact absent from the required analysis is a

sufficient nexus between the predicate conduct, in this case the

September 5, 2015 shoving, and the domestic relationship between

28 A-0945-15T3

the parties. The offense must be tainted by a desire to abuse

or control the victim because of their domestic relationship.

Here, defendant's actions during this incident do not show a

"pattern of abusive and controlling behavior" of the kind

intended to be prevented by the Act. Peranio v. Peranio, 280

N.J. Super. 47, 52 (App. Div. 1995); see also Cesare, supra, 154

N.J. at 397; N.G., supra, 426 N.J. Super. at 409. Accordingly,

we conclude the evidence is inadequate to support a finding

defendant's conduct constituted domestic abuse. See N.T.B.,

supra, 442 N.J. Super. at 215-16 (holding not every dispute or

disturbance between family members is sufficient to warrant the

Act's application).

In summary, defendant, by virtue of his familial

relationship with plaintiff, falls within the newly modified

jurisdictional scope of the Act. However, for the reasons

stated, the conflict set forth in this record is not tantamount

to domestic violence for which a final restraining order should

be entered. Finally, our review does not lead to the conclusion

the evidence supported a separate finding a final restraining

order was necessary for plaintiff's immediate protection or to

prevent further abuse. See J.D., supra, 207 N.J. at 488.

Reversed.

29 A-0945-15T3