"Excessive Texting" From One Divorced Parent To The Other Does Not Necessarily Amount To Harassment

New Jersey appeals court reversed a final restraining order entered in a domestic violence lawsuit, holding that “excessive texting” from one divorced parent to the other does not necessarily amount to harassment. L.M.F. v. J.A.F.,Jr.,  Superior Court of New Jersey, Appellate Division, Docket No. A-0121-10T3, approved for publication.

The parties married in 1989 and divorced in August 2006. The ex-spouses used texting as the primary means of communicating with each other concerning the welfare of their children, a 19-year-old son and 17-year-old daughter, over whom they shared custody. The children lived with their mother, L.M.F. Husband J.A.F. remarried and his current wife also communicated with J.A.F.’s ex-wife via text messages.

In March 2010, J.A.F.’s 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 also 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.

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. L.M.F. testified that she sent one response in which she said that she was not aware of the score and J.A.F. should contact their daughter.

On June 28, J.A.F. again texted about the SAT score, threatening to call his attorney.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.

L.M.F. petitioned for a restraining order and, at trial, testified about the incidents mentioned above and claimed that 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. Defendant testified that texting worked well until he filed a motion to reduce his child support obligation in March 2010. He also stopped receiving text messages from his children during this same time. Defendant admitted to sending plaintiff the text messages she complained of, but he claimed that the texts were justified because plaintiff intentionally kept information from him concerning the children’s lives.

The trial court issued a final restraining order. The court cited J.A.F.’s use of offensive language in calling her a “fucking scorned woman,” his current wife’s use of profanity in her texts and the timing of his early-morning messages, which the judge said were likely to annoy her.

J.A.F. appealed. The Appellate Division reversed, saying the trial court did not find that J.A.F. sent the test messages for the purpose of harassing his ex-wife, thereby failing to establish the necessary predicate for harrassment. In fact, L.M.F. did not dispute that J.A.F.’s purpose in sending the text messages was to inquire about their children.

Further, the appeals court held that the trial court did not find — as the Domestic Violence Act requires — that injunctive relief was necessary to prevent further abuse.

   The case is annexed here – L.M.F. v. J.A.F.