14-2-5643 L.M.W. v. A.P. , N.J. Super. App. Div. January 12, 2018
Have you been charged with domestic violence?
Have you been criminally charged with harassment under NJSA 2C:33-4(c)?
Did the court enter a final restraining order based on texts you sent your wife or girlfriend?
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In this case the facts are very straightforward. The plaintiff and defendant were exchanging texts and the woman replied “you do not need to call me”…….”I am not interested anymore.“. Thereafter the defendant did not comply with the plaintiff’s request and she received additional texts and asked for an exclamation of the break up. The plaintiff sent another text saying “this is the last time I’m telling you stop texting me and calling me I am not interested if you try to contact me again I will contact the police “ At no time did the defendant man threaten the woman in any manner. The defendant however did send plaintiff additional 25 text, calling her 13 times, and left numerous voice messages. The plaintiff/woman did admit that none of the text were threatening. She thereafter went to the police with the texts. The police called the defendant and advised him to stop texting the woman. He then said the woman flowers with a message saying kind words.
The trial court, after a trial, agreed that there was a no threats of violence, however the man’s continued texts were considered harassing and as such was a violation of the domestic violence restraining order act. The Appellate Division in this case found that the trial courts determination was not supported by adequate substantial credible evidence and reversed the trial court’s decision because there was clearly a mistake of fact and the court’s ruling was not supported by the facts in the record and there was a error in fact and law.
I have written numerous blogs on this issue in the last few weeks. The Appellate Division courts continually turn to the case of the Silver v. Silver which requires the trial judge to make a finding of fact that the complaining party has proven, by a preponderance of the evidence, that the defendant committed one of the predicate acts under the domestic violence of law in New Jersey. Harassment, pursuant to 2C:33–4 is one of the domestic violence prohibited acts.
Harassment has been defined as communicating to another party with the purpose to harass were engaging in a course of alarming conduct with the purpose to alarm or seriously annoyed another person. In addition the plaintiff must prove that the defendant acted with the purpose to harass, which can be inferred by the evidence of the type and ongoing nature of the defendants conduct. The case will has stated that the The facts can reflect a defendant’s conscious object to harass and or torment ware out or exhaust a plaintive. However, merely knowing someone will be annoyed is insufficient to prove harassment. In addition, a victim’s subject of reaction will not be sufficient. There has to be evidence of an improper purpose or motive for the communication by the person charge with the domestic violence violation.
The Appellate Division ruled in this case that the trial judge did not make any findings, nor did the plaintiff (complaining woman) show that the defendant/man acted with the necessary intent/purpose nor did the trial court find that the defendant’s texts were sent with the actual purpose to harass. As a result, without this fact evidence, the trial court made an error in finding that the harassment existed. The appellate court also look to a very recent New Jersey Supreme Court decision in State v. Butler that found that 2C:33-4(c)’s harassment definition was “never intended to protect against common stresses, shocks, and insults of life that come with exposure to crude remarks and offensive expressions, teasing and rumor mongering, and general inappropriate behavior. The aim of section C of the harassment statute is not to enforce a code of civil behavior or proper manners.”…..”The primary purpose of the criminal term harassment is to protect against alarming communications and or conduct that is directed at another person with the intent and purpose to alarm or seriously annoy or put a person in fear of her or his safety or security.”
The trial court in this case erred in finding such intent existed based on the evidence. As a result the final restraining order had to be vacated. Please call my office if you have questions or we can review the very texts that you were charged with and fight your domestic violence case.
Jeffrey S. Hark, Esq.