In E.M.B. v. R.F.B., ___ N.J. Super. ___ (App. Div. 2011), a temporary restraining order (“TRO”) was entered against the defendant. The plaintiff in this domestic violence action was the 88-year-old mother of the defendant. After conducting a hearing on a final domestic violence restraining order (“FRO”), the trial court entered an FRO against the defendant based on his harassment of his mother. The Appellate Division reversed, holding that the offensive language that the defendant directed toward his mother, namely calling her a “senile old bitch,” and his theft of her property, was insufficient to constitute harassment and could not support the FRO.

The plaintiff filed a domestic violence complaint against her son because he had stolen her car keys, cell phone, bank book, jewelry, and some money. She testified about those thefts and her son’s “controlling” behavior at the FRO hearing, about when he locked her out of the house that they shared. In addition, she testified that her son had called her a “senile old bitch.” When the judge asked her if that annoyed her, the plaintiff responded, “‘[i]t hurt me. … [b]ecause I was … I felt that I was good to him. He had no reason to talk that way to me.”

The trial court determined that the defendant had committed an act of domestic violence upon the plaintiff: harassment. Based on the plaintiff’s testimony, the court found that the defendant was controlling, that the plaintiff was hurt by the defendant’s calling her a “senile old bitch,” and the defendant did those things to annoy or alarm the plaintiff. The trial court entered the FRO to protect the plaintiff from any future acts of domestic violence.

Reviewing the trial court’s ruling, the Appellate Division first explained that before a trial court can find that domestic violence occurred and enter a restraining order, it must first find that an enumerated predicate act under N.J.S.A. 2C:25-19 was committed. Although the plaintiff sought a TRO based on her son’s thefts, theft is not a predicate act under N.J.S.A. 2C:25-19. However, the Appellate Division noted that the trial court had determined that the defendant’s conduct was harassment, which is an enumerated act under N.J.S.A. 2C:25-19. The court then quoted the relevant provisions of N.J.S.A. 2C:33-4, which provides in pertinent part that a person is guilty of harassment if, “with purpose to harass another,” he or she “[m]akes 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[.]” N.J.S.A. 2C:33-4(a). In addition, a person will be guilty of harassment if he or she, with the purpose to harass, “[e]ngages 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(c). The Appellate Division emphasized that a defendant must act with the purpose to harass another in order to be guilty of harassment.

With respect to N.J.S.A. 2C:33-4(a), the Appellate Division stated that the only communication of the defendant that could possibly satisfy that provision was when he called his mother a “senile old bitch.” Although the Appellate Division agreed with the trial court that the defendant’s language was upsetting to the plaintiff, it nonetheless observed that it did not measure the impact of the speech based on the impact on the victim but rather it had to focus on the purpose of the defendant in making the statement. In that regard, the Appellate Division stressed that the harassment statute was not intended to penalize mere speech, even if offensive, unless the actor had the specific intent to harass the listener. After evaluating the evidence, and the “sparse record” presented at the FRO hearing, the Appellate Division concluded that there was insufficient evidence to prove that the “defendant called his mother a ‘senile old bitch’ with the intent to annoy her[.]”

Turning to N.J.S.A. 2C:33-4(c), the court concluded that even if the defendant’s thefts provided the necessary course of conduct, “a violation of this subsection requires proof of a purpose ‘to alarm or seriously annoy.’ Plaintiff provided no testimony to support a finding that defendant was so motivated. The record does not provide evidence that defendant acted with any purpose in stealing from his mother other than to appropriate her property for his own use.” Because it determined that the evidence did not prove that the defendant engaged in a course of conduct with the purpose to alarm or seriously annoy his mother, the Appellate Division reversed the trial court’s entry of the FRO.