Peranio v. Peranio

• Decision Date: 07 March 1995
• Parties: Maryann PERANIO, Plaintiff-Respondent, v. Lawrence PERANIO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 47

280 N.J.Super. 47

654 A.2d 495

Maryann PERANIO, Plaintiff-Respondent, v. Lawrence PERANIO, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Oct. 18, 1994.

Decided March 7, 1995.

James M. Cerra, Newton, for appellant.

Respondent, Maryann Peranio, pro se.

Before Judges LONG and ARNOLD M. STEIN.

The opinion of the court was delivered by

LONG, J.A.D.

Plaintiff, Maryann Peranio and defendant, Lawrence Peranio were separated and in the process of obtaining a divorce, when, on January 27, 1994, plaintiff filed a Domestic Violence complaint against defendant. The complaint alleged that on January 26, 1994, defendant "forced entry" into plaintiff's home; "pushed" plaintiff and their child; stated, "I'll bury you," and used "extreme foul language." The complaint also alleged "verbal harassment and assaults for the past two years."

A hearing took place at which various matters were explored, including plaintiff's claim that on a single occasion over a year before defendant had pushed her into the refrigerator. Defendant denied this and the trial judge specifically found an "absence of any history of assaultive behavior on his part." Thus, the details of this testimony are unimportant.

Plaintiff did testify that on January 26, when defendant came over to inspect water damage in the basement, he claimed that some of his personal property was missing and accused her of disposing of it. She stated:

At that point he just goes on about I'm selling marital items, I have no right to be doing this, and all I stated to him is, when you left I told you take what you want from here. At that time he took my daughter's hand, he's walking outside and he's telling me that him and I are beyond words, there's no more talking between us and that he'll bury me. And this is something that goes on non-stop.

....

Q. After you indicate he made this remark, I'll bury you, what did he then do?

A. He took the kids and he left.

Defendant moved to dismiss the complaint and plaintiff was allowed to make a statement in opposition. She said:

I don't want him to be allowed in ... my residence because it is my residence and that to me is like a safe haven. I don't want to sit here and keep going back and forth over the arguments and the fights that we've been having. I just feel they're uncalled for.

And the reason I went for this is [I] just tried to avoid all this. If we have no contact, the kids won't be involved in any of this.

Defendant testified that on January 26 when he went to inspect the water damage, he saw that his weight lifting machine was missing. According to his testimony, plaintiff said she got rid of it. He became angry and said:

A. I told her that I will bury you, you know, with all the stuff that you are doing illegally to me, getting rid of all personal assets, that you know I was going to take care of it in some way.

Q. Bury her, in what respect?

A. Not in the ground, just the Court will handle it.

Q. Well when you make this comment about burying her, what other discussion did you have about the personal property?

A. That she can't get rid of it.

Q. Did you threaten her?

A. No, no.

Q. When you make the comment that you would bury her, did you advance toward her?

A. No.

Q. Did you threaten her?

A. No.

Q. Did you push her?

A. No.

Q. Did you come into contact with her in any way?

A. No, none at all.

Q. And after you made that comment, what if anything did she say to you?

A. As I was walking out with my daughter, she was on the front steps, she says I want you out of my f'n life, and I just kept on walking to my truck and left.

Q. And was there any further contact with your wife.

A. No, I left.

....

Q. Just so that we have a clear understanding of this brief discussion where you make the comment that you would bury your wife, I'd like you to indicate to the Court what your specific intention was when you made that statement to her? What message were you trying to give her?

A. The message I was giving her is that the more stuff you do illegal the Court will take care of it, what you're doing to me. I'm not going to bury you; the Court's going to bury you for everything you're doing to me.

Q. Was it with respect--

A. It's not intentional of bodily harm. It's just a phrase.

Q. Was it in connection with her removal of the materials?

A. Yes, it was. Yes, it was.

Q. Was it in connection with anything else?

A. No, no, it was just removing the stuff that was ours.

Q. Were you referring to the list of items that you had prepared?

A. Yeah.

Q. What was the context of that?

A. Of the list I had?

Q. Yeah.

A. It's all kinds of--collector's items. I have some of them now but I have posters, you know, Super Bowl tickets and certain things like that. I have antiques in the attic. I have Lionel trains. I have stuff that is still at the marital residence and I want them to stay there until this is over. I want half of what's mine.

I don't want her to get rid of them beforehand because these are stuff that my father gave me. The Lionel trains are for my son. Fine. But they're mine. I will give it to him at that time. It's not for her to get rid of.

The trial judge found:

The issue here obviously centers around the meaning of the phrase, "I'll bury you," as uttered by the defendant to the plaintiff on the afternoon of January 26th after he had been at the residence to inspect the damage and the repair to the piping, the damage due to the weather.

He observed certain items of personalty that he believes he's entitled to in equitable distribution to be missing and, as a result, became upset. Plaintiff indicates that he uttered the phrase, I'll bury you, just after indicating there will be no further discussion with the plaintiff, and he then left the premises with the children. The plaintiff by her testimony indicates that she was upset. She describes herself as shaking given the conduct by the defendant in making this comment to her.

And this incident, I'm satisfied to find apparently has been indicative of the breakdown in the relationship between the parties through verbal arguments that have ensued since their separation. The defendant denies any intention to harm the plaintiff by uttering that phrase and he further denies having engaged in any assaultive conduct against his wife at any point in the past and indicates his intention not to engage in any alarming conduct.

I believe from an objective standard though in evaluating this matter the phrase, I'll bury you, has to be considered in terms of the fear that the plaintiff describes to herself by reason of the comment being made by the defendant to her. While the intention of the defendant in making that comment would be to obtain his rights under the law with regard to the divorce proceeding and if the plaintiff was engaging in conduct to divert assets that could not be equitably distributed, and he was upset with that and I can understand that upsetment.

That resulted though in him making this comment to the plaintiff. The plaintiff indicates though that she was upset and that upsetment is probably directly related to the history of verbal arguments engaged in by these parties over the past. It is in dispute though as to whether he ever pushed her against the refrigerator.

Clearly there is an absence of any history of any assaultive behavior on his part and I'm not satisfied he engaged in assaultive--terroristic threats, as that phrase is defined under Title 2C. But his comment about I'll bury you can be construed as alarming, certainly causing annoyance and alarm to the plaintiff in the context in which it was uttered and given the fact of the fear that she was experiencing by him making that comment.

So on that basis the Court will enter a Final Restraining Order barring him from engaging in further acts of domestic violence and barring him from returning to the scene as well as barring him from engaging in further acts of harassment and from having any contact with the plaintiff in person, in writing or through third parties.

Defendant appeals. We reverse.

Domestic violence is a term of art which defines a pattern of abusive and controlling behavior injurious to its victims. See, e.g., Marsha J. Kleinman, Family Violence: It can be a killer, 41 N.J. Psychologist (1991); Courtney N. Esposito, Abuse: Breaking the Cycle of Violence: The Victim's Perspective, 8 Trends in Health Care, Law and Ethics (Spring 1993), reprinted in Domestic Violence (New Jersey Institute of Continuing Legal Education 1993).

The Prevention of Domestic Violence Act (repealed, L.1991, c. 261 § 20, reenacting L.1991, c. 261 § 1), N.J.S.A. 2C:25-17 to -33, was New Jersey's response to this problem. The findings which undergird the act are set forth at N.J.S.A. 2C:25-18 (emphasis added):

The Legislature finds and declares that domestic violence is a serious crimes against society; that there are thousands of person in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.

The Legislature further finds and declares that even though many of the existing criminal statutes are applicable to acts of domestic violence, previous societal attitudes concerning domestic violence have affected the response of our law enforcement and judicial systems, resulting in these acts receiving different treatment from similar crimes when they occur in a domestic context. The Legislature finds...