Harassment Restraining Order Not Justified by Defendant's Facebook Post Calling Ex-Fiancée a "Crumbum"

From S.L. v. D.D., decided yesterday by N.J. Appellate Division Judges Berdote, Byrne, and Jacobs:

D.D. (“Darryl” [a pseudonym]) appeals the June 19, 2023 final restraining order (“FRO”) granted by the Family Part to S.L. (“Sydney”) against him…. Sydney [had] presented two … occurrences she alleged were the predicate acts of harassment and stalking: a note Darryl left at [Sydney's current boyfriend] Teddy’s house (“Beer Note”) and a Facebook message Darryl had posted, presumably referring to Sydney as his “crumbum ex” (“Crumbum Post”)…. [The judge] concluded the Beer Note and the Crumbum Post amounted to predicate acts of harassment and stalking and granted Sydney an FRO against Darryl….

Sydney testified she was returning from a vacation with Teddy on April 24, 2023, when she and Teddy found the Beer Note left at the house Teddy owned with his ex-girlfriend, R.T. (“Racquel”). The Beer Note was handwritten and said “Throw this away for me Bud! signed [Darryl]. Thanks for the warm beer and grill.” Sydney testified neither she nor Teddy gave Darryl permission to enter Teddy’s home. {Racquel appeared as a defense witness.  She testified she invited Darryl into her home and sold him the grill when he left the Beer Note.} {[T]he … judge found Darryl “kn[ew] that [Teddy was] going to come into [his home] and [was] going to find [the Beer Note],” Darryl knew Teddy and Sydney would “know that he got into the house in some fashion,” and Darryl left the Beer Note on purpose aware of the fact that Sydney was going to see it.} …

[T]he trial court also considered the Crumbum Post made by Darryl after the April 10, 2023 hearing, which states, in pertinent part, “[f]inally after months of courts and attorneys, [m]y crumbum cheating ex had to hand the ring back over. … Now it’s for sale before I take it to my jeweler for consignment.” … [T]he … judge disapproved of Darryl’s use of social media to “badmouth [Sydney]” on a public post “[t]o the entire world” ….

N.J.S.A. 2C:25-19 provides several enumerated offenses that may amount to predicate acts of domestic violence. Included in this enumerated list are harassment and stalking, defined in N.J.S.A. 2C:33-4 and N.J.S.A. 2C:12-10, respectively. Harassment occurs whenever one “[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”; “[s]ubjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so”; or “[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.” Conduct “would only qualify as a predicate act [of harassment] if it were both committed with a purpose to harass and if the act was ‘likely to cause annoyance or alarm.’” Most importantly, “[h]arassment requires the defendant act with the purpose of harassing the victim.” …

Sydney argues the trial court correctly issued an FRO because the Beer Note and Crumbum Post amounted to predicate acts of harassment and stalking. We disagree. The Crumbum Post does not expressly identify Sydney. Moreover, Sydney would see the post only if she were actively looking at Darryl’s Facebook page. Therefore, pursuant to the specific facts in this record, the act of posting the Crumbum Post could not have had the intent to harass Sydney.

Similarly, the Beer Note was intended for Teddy. There is no indication that Sydney was a resident in Teddy’s home or would have seen the Beer Note. As such, the Beer Note did not purposefully target Sydney. Teddy had other legal avenues to pursue if he felt threatened by the note.

The Supreme Court has commented on how conduct directed towards a third party affects whether the alleged victim has been harassed, requiring “the victim … be the target of the harassing intent” when it concluded “[a] defendant’s snide remarks to the [plaintiff's] new beau” made when “plaintiff was not even present” did not amount to harassment….

There’s a lot more going on in the 20-page opinion, but I wanted to focus here on the Crumbum Post, because it’s related to my broader interest in harassment injunctions based on offensive speech about plaintiff (as opposed to unwanted speech to the plaintiff).

Peter J. McNamara represents Darryl.

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