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Ex-Spouse’s Angry, Repeated Texting Not Harassment

August 23, 2011 Leave a comment

Ex-Spouse’s Angry, Repeated Texting Not Harassment, Appeals Court Says A string of 18 text messages in three hours from one divorced parent to the other does not necessarily amount to harassment, a state appeals court says in reversing a final restraining order.

David Gialanella



Excessive texting from one divorced parent to the other does not necessarily amount to harassment, a state appeals court said Monday in a published decision reversing a final restraining order. The husband’s sending of 18 angry messages in the space of three hours “shows only the convergence of modern technology and the foibles of human judgment,” the Appellate Division held in L.M.F. v. J.A.F., A-121-10. “Our ability to instantaneously and effortlessly send electronic messages has created a gateway unfettered by reflection and open to rash, emotionally driven decisions” and has “created a commensurate expectation of an equally instantaneous response from the recipient,” Judge Jose Fuentes wrote for the court. While texting is a good communication mode between estranged couples because of brevity and impersonality, it still is susceptible to “frustration and misuse” if parties do not cooperate, Fuentes said, calling the husband’s behavior “dysfunctional” but not done with the requisite intent to harass. The parties, who were divorced in 2006, conversed mostly by texting about parenting issues concerning their 19-year-old son and 17-year-old daughter, over whom they shared custody, though the children lived primarily with their mother. Husband J.A.F. had remarried and his current wife also joined in. In March 2010, the current wife complained that L.M.F. failed to notify them about a banquet for their daughter’s high school basketball team. The current wife then texted L.M.F. eight times between 7:32 a.m. and 8:19 a.m. on May 25, 2010, for not informing J.A.F. about a board of education meeting at which the basketball team was honored. The messages said J.A.F. and his wife “can go where ever we want TOGETHER” and tell L.M.F. to “Save ur breath for someone who gives a shit about what you think.” Then, on June 25, 2010, J.A.F. sent L.M.F. 18 text messages between 6:50 a.m. and 11:34 a.m. about their daughter’s SAT score, asking for an update and then accusing her of withholding information. “You are playing this game by not telling me t[h]ings about our kids,” he wrote, demanding that she keep him informed “so we both don’t look like ass hole parents that don’t talk.” L.M.F. testified that her lone response said she was not aware of the score and he should contact their daughter. On June 28, J.A.F. again texted about the SAT score, threatening to call his attorney and adding, “FYI, I pay you $2,800 a month more than what you make.” L.M.F. testified that when she called to ask him to stop, he became angry and called her “a fucking scorned woman.” J.A.F. sent two more texts that day, at around 5 p.m., inquiring about their daughter’s whereabouts. L.M.F. petitioned for a restraining order and, at trial, testified about an incident in December 2005, when, after J.A.F. moved out of their home, he returned and angrily asserted his right to come and go, yelling at her from a distance of about five feet. Hunterdon County Superior Court Judge Hany Mawla asked L.M.F. whether she was fearful, to which she responded, “yes.” She claimed J.A.F. intermittently barraged her with texts whenever the children were unresponsive to him. J.A.F., in turn, argued that L.M.F. withheld information about the children and provoked him with inflammatory e-mails. Mawla issued a final restraining order, finding that L.M.F.’s nonresponse to J.A.F.’s texts did not excuse his conduct, which amounted to the predicate act of harassment under N.J.S.A. 2C:33-4. Mawla cited J.A.F.’s use of offensive language in calling her a “fucking scorned woman,” his current wife’s use of profanity in one of her texts and the timing of his early-morning messages, which the judge said were likely to annoy her. But Fuentes, joined by Judges Victor Ashrafi and William Nugent, reversed, saying Mawla did not find J.A.F. sent the messages to harass his ex-wife. L.M.F. did not dispute that J.A.F.’s purpose was to inquire about their daughter, and the texts became an annoyance only after she ignored them, the panel said. When she did, “it was not unreasonable for defendant to assume he was being snubbed or ignored,” Fuentes wrote. “He manifested his frustration by resending the same message, over and over again, in a misguided attempt to provoke some kind of response from plaintiff,” though the subject was always legitimate concerns about their children, Fuentes wrote. Even if L.M.F. established the predicate harassment, Mawla did not find — as the Domestic Violence Act requires — that relief is necessary to prevent further abuse, the panel said, writing off the December 2005 incident as “not part of a pattern of verbal or physical abuse.” Also, L.M.F. offered evidence of her fearfulness only when prompted by Mawla, the court said, noting that judges “must take special care to craft questions in such a manner to avoid being perceived as an advocate for any side of a dispute.” As for his current wife’s communiques, there was no evidence J.A.F. directed her to send those messages and Mawla should not have considered them in ruling on the restraining order, the panel said. J.A.F.’s attorney, Michael Speck of Keith Burns’ firm in Iselin, did not return a call. L.M.F. was pro se on appeal.