‘Contretemps’ Not Harassment, Court Says in Lifting Domestic Restraints

David Gialanella
December 14, 2010

Belligerent telephone calls at work, repeated name-calling and a one-finger salute did not amount to the predicate acts of harassment sufficient to warrant a restraining order against an ex-husband under New Jersey’s Prevention of Domestic Violence Act, a state appeals court says.

The discourteous calls and other aspersions were attributable to “ordinary domestic contretemps,” the Appellate Division held Monday in reversing a family court judge in E.D. v. P.D., A-692-09. “Even when viewed expansively, we cannot conclude from the judge’s findings that defendant engaged in any communications or conduct that rose to the level of what the Legislature intended as ‘domestic violence,'” the panel added.

The plaintiff, E.D., had applied for a restraining order against P.D., her ex-husband, claiming several incidents of harassment in July and August 2009, by which time the couple had been divorced for more than a decade.

After hearing testimony, Somerset County Superior Court Judge Edward Coleman found that P.D. made multiple telephone calls to E.D. at work on three consecutive days to inquire whether she had made payments to their children’s soccer and cheerleading programs. P.D. allegedly lambasted E.D. during the calls, was hostile and aggressive and refused to correspond with E.D. via e-mail, as she had requested.

Weeks later, Coleman found, P.D. pulled up to E.D. as she stood outside a yoga studio where she attended class and shouted “get your ass home and take care of your kids.” P.D. made additional calls criticizing E.D.’s ability to pay bills and ended one such conversation by saying “get it done, bitch,” then hanging up, and on another occasion, as the two parties’ vehicles passed, P.D. slowed down and presented his middle finger with “a crazed look on his face,” Coleman found, based on E.D.’s testimony.

Coleman entered a final restraining order based on those incidents, but Appellate Division Judges Clarkson Fisher Jr. and Marie Simonelli reversed, saying he failed to find P.D. intended to harass E.D. and that restraints were “necessary to prevent an immediate danger or further abuse.

Even if Coleman found that P.D. meant to harass his ex-wife, they said, the conduct did not amount to the predicate acts necessary to meet the standard for a final restraining order.

“Although there are certain acts of domestic violence that may reveal such a need without a judge’s express finding, when the claimed predicate act consists of harassment or other types of nonviolent conduct, the judge is required to provide a principled analysis of why a restraining order is necessary to protect the victim from danger or further abuse,” the panel said.

Verbal sparring as it occurred in this case was not intended to be covered in the state’s domestic violence law, the court said, citing Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995), a case that first referred to such jousts as “ordinary domestic contretemps” rather than alarming developments.

Amy Wechsler of Copeland, Shimalla, Wechsler & Lepp in Warren, P.D.’s counsel, says, “It was important to appeal this because, what the predicate acts were alleged to be, we believed they didn’t constitute harassment.”

“She [E.D.] didn’t want him to call, but he did,” Wechsler says. “But if you look at what he’s calling about, it’s stuff about their children. People might get excited and raise their voices, but that doesn’t make it harassment.” No appellate counsel appeared for E.D.

Woodbury solo Michael Pimpinelli, who was not familiar with the case but represents both sides in domestic violence matters, says harassment is an area in which judges have a lot of discretion.

“There’s certain normal interplay with people, and most of these cases hinge on intent,” he says, adding that in divorces and related matters, “normally, people say nasty things to each other.”

Pimpinelli says that in general, judges appointed to family court have little related experience, so they don’t always know where to draw the line between harassment and run-of-the-mill matrimonial disputes.

The judge “might be looking a little harder on these cases than someone who’s been a family law practitioner for 10, 15 or 20 years,” he says.