FRO reversed where no proof of harm B.D. v L.N. SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0888-18T4
B.D.,
Plaintiff-Respondent,
v.
L.N.,
Defendant-Appellant.
_________________________
Argued October 16, 2019 รข€“ Decided December 5, 2019
Before Judges Yannotti, Hoffman and Currier.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket Nos. FV-09-2356-18 and FV-09-0127-19.
Kathleen Petrea Garvey argued the cause for appellant
(Marotta & Garvey, attorneys; Kathleen Petrea Garvey,
on the briefs).
Diana E. Griffin argued the cause for respondent
(Northeast New Jersey Legal Services Corp., attorneys;
Diana E. Griffin, on the brief).
PER CURIAM
Defendant L.N. appeals from a final restraining order (FRO) entered by
the Family Part on September 13, 2018 pursuant to the Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse.
I.
On May 24, 2018, plaintiff filed an application with the court for a
temporary restraining order (TRO), alleging that defendant had engaged in acts
that constituted harassment under N.J.S.A 2C:33-4. Plaintiff claimed that
defendant had threatened him. He alleged that he was "scared for himself and
for his child." The court granted plaintiff's application for a TRO. On June 13,
2018, plaintiff amended his complaint, alleging that defendant violated the TRO
by engaging in further acts of harassment.
The parties appeared in court on July 5, 2018. Thereafter, as the parties
were leaving the courthouse, they engaged in a verbal altercation. Defendant
was arrested for violating the TRO. Defendant then filed an application with
the court for a TRO. She alleged that plaintiff threatened and harassed her. The
court granted defendant's application. Plaintiff then amended his complaint to
include allegations related to the July 5, 2018 incident.
On July 16, 2018, the court began the evidentiary hearing on the parties'
respective applications for FROs. Plaintiff testified that in 2016, he and
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defendant met at work and soon after began what plaintiff said was a "sexual
relationship." At the time, plaintiff was in a long-term relationship with another
woman, whom he referred to as his wife, and defendant was married to a man
who was living in another country. The parties kept their relationship a secret.
They would meet at hotels to have sex.
In November 2017, plaintiff was fired after he had an altercation with
defendant in the place where they worked. Plaintiff also testified that in
December 2017, he and defendant met at a hotel in Jersey City. On his phone,
plaintiff had a video of himself and defendant having sex, which they had
recorded in August 2017. Plaintiff asserted that defendant had agreed he could
make the video, provided he kept it for himself. Plaintiff claimed he never
showed anyone the video.
Plaintiff testified that at the hotel in December 2017, defendant took his
phone and sent the sex video to her husband. Defendant's husband then called
defendant and she passed the phone to plaintiff. Plaintiff told defendant's
husband "everything that was going on." According to plaintiff, defendant
grabbed plaintiff's phone and smashed it on the ground.
Plaintiff stated that his relationship with defendant ended on May 20,
2018. On that day, plaintiff spoke with defendant on the phone. Previously,
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plaintiff told his wife about his relationship with defendant. Plaintiff said
defendant told him she would get back at him for breaking his promise to keep
their relationship secret. He testified that defendant said she and her husband
would destroy his child's life. Plaintiff's child was then nine years old.
Plaintiff testified regarding the incident on July 5, 2018. He said he left
the courthouse before defendant, and he was waiting outside for a ride. Plaintiff
saw defendant and her supervisor, S.F., who was pointing at him and laughing.
He asked her if there was a problem.
According to plaintiff, defendant told him to "go watch your son." He
said this made him mad and he reported the incident to a sheriff's officer. He
denied saying he promised defendant would "pay for this." He also denied
threatening to kill defendant. In addition, plaintiff denied sending death threats
to defendant.
R.P. testified that she considers herself to be plaintiff's wife, although they
are not legally married. She stated that on April 22, 2018, she spoke with
defendant on the phone. According to R.P., defendant said she had been going
"out" with plaintiff for a long time, and she knew many personal "things" about
R.P. She stated that she saw defendant on May 11, 2018, in Jersey City, and
tried to speak with her, but defendant "just walked off."
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R.P. further testified that defendant sent her a text message on May 20,
2018, but R.P. did not speak with defendant. She claimed that on June 1, 2018,
defendant called R.P.'s phone, using a mobile application. R.P. did not answer
the call.
R.P. claimed that on June 4, 2018, defendant or defendant's friend sent a
text message to her phone, from an unknown number. R.P. presented the court
with a "screen shot" of the message, which was sent in Spanish. It was translated
into English. The message stated, "If you do not want problems with us,
[defendant] needs to talk to your husband."
R.P. also claimed she received phone calls from a blocked number on July
11 and July 12, 2018. She said the calls were made by someone who sounded
like defendant. According to R.P., the caller told her to watch her children.
Defendant testified that plaintiff was fired in November 2017 after he
"attacked her" at work. She ended her relationship with plaintiff in April 2018.
She testified that plaintiff sent her death threats in an April 2018 text message,
but she did not produce the message. She acknowledged that she spoke with
plaintiff on the phone on May 20, 2018 but denied telling plaintiff that she was
going to make the lives of his wife and children miserable. She also denied
threatening plaintiff or his wife.
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Defendant further testified that after the parties appeared in court on July
5, 2018, plaintiff followed her out of the courthouse and screamed that he was
going to kill her and her supervisor. She claimed that she did not speak a word
to plaintiff during that incident.
Defendant presented the court with an audio recording in which plaintiff
is stating, "I promise, I promise." Defendant said plaintiff was promising he
would kill her. Defendant claimed plaintiff sent her death threats, and she
received so many calls at work that she had to change the phone number in her
department.
The hearing continued on September 13, 2018. Defendant acknowledged
on cross-examination that she did not report plaintiff's alleged death threats to
the police. She also stated that she did not seek a TRO because she never
"wanted to be going through this situation."
An audio tape was played of a phone call made on August 22, 2018, by a
person who said he was calling on behalf of defendant and wanted to speak with
plaintiff. Defendant denied knowing the person who made the call. She also
denied directing the person to make the call. She said many people have the
same names as plaintiff and defendant. She also denied asking anyone to call
plaintiff or his wife.
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S.F. is defendant's supervisor. She testified that plaintiff worked for the
company in 2017. Defendant informed her of the TRO that plaintiff had
obtained. S.F. stated that plaintiff had been constantly calling the office.
According to S.F., plaintiff said he was going to kill defendant and she should
tell defendant "to suck [his] dick." In June 2018, S.F. had the phone number in
defendant's department changed because plaintiff had been calling and
threatening defendant.
She further testified that she met defendant at the courthouse on July 5,
2018. After they left the building, she saw plaintiff. She claimed she did not
make faces, point at, or say anything to plaintiff. S.F. stated that she and
defendant were walking down the street and, from behind, she heard plaintiff
screaming and threatening defendant. S.F. started to record the incident on her
phone and plaintiff walked away. According to S.F., defendant was upset by
this incident and plaintiff's calls to the workplace.
After the attorneys made their closing arguments, the judge issued an oral
opinion. The judge stated that he did not find any of the testifying witnesses
credible. The judge addressed defendant's claim that the voicemail was part of
a setup by plaintiff and his "wife." The judge commented:
A valid thing to consider, as [counsel] stated. But the
problem I have is - - is your testimony. What you said
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and how you said it. You listened to [the August 22
voicemail]. You deny it. That's fine. You can deny it,
but even I can understand what's being said on that tape,
when the male person identified himself as a friend of
[defendant]. That's the question that you didnรข€™t want to
answer - - five [or] six ways . . . . Prior to that, you said
something that blows your credibility away. Where you
say, well, there's many [persons with the same names
as the parties]. That's not what I wanted to hear. If
that's me sitting in your chair, and somebody - - and I
didnรข€™t do any of this - - and had nothing to do with it
and being "setup" - - I would say, I have nothing to do
with that. I don't know who those people are, and I'd
be a little bit upset that the only person who has a reason
to do this is [plaintiff]. I wouldn't say, well, there's a
lot of [persons with similar names]. Well, the only
[B.'s] and [L.'s] who are in my courtroom today are you.
So, I donรข€™t think itรข€™s a coincidence, by [the August 22
voicemail], a twenty-second tape, that mentions [B.]
and [L.], I donรข€™t think they're talking about somebody
else. Thatรข€™s what kills that argument. . . .
The judge found that defendant did not violate the TRO on July 5, 2018,
but she did violate the TRO by engaging in acts of harassment after the court
entered that order. The judge found that defendant's communications had no
purpose other than to alarm and harass plaintiff. The judge also found that
defendant had not presented sufficient evidence to support her application for
an FRO. The judge noted that defendant did not provide a log evidencing the
alleged phone calls to her office or copies of the threatening text messages.
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The judge explained that he did not think there was a need for an FRO
based on plaintiff's testimony, but there was a need for an FRO based on
defendant's conduct. The judge stated that he did not fear for plaintiff's son, but
that defendant's contacts must cease.
On September 13, 2018, the court entered the FRO against defendant. The
court also entered an order dismissing defendant's complaint and vacating the
TRO she obtained. Defendant's appeal followed.
II.
On appeal, defendant argues: (1) the trial court's finding that defendant
committed the predicate act of harassment is not supported by the evidence; and
(2) the FRO should be reversed because there was no finding that an FRO was
necessary to protect plaintiff from immediate harm or to prevent further abuse.
The scope of our review of an FRO in a domestic violence matter is strictly
limited. Peterson v. Peterson, 374 N.J. Super. 116, 121 (App. Div. 2005). We
are bound by a trial court's findings of fact if they are "supported by adequate,
substantial, credible evidence." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394,
412 (1998)). Our deference to the trial court's factual findings "is especially
appropriate 'when the evidence is largely testimonial and involves questions of
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credibility.'" Cesare, 154 N.J. at 412 (quoting In re Return of Weapons to
J.W.D., 149 N.J. 108, 117 (1997)).
Because the trial judge heard the case and observed the witnesses, the
judge has a "better perspective than a reviewing court in evaluating the veracity
of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v.
Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). Furthermore, an appellate court
should accord deference to fact-finding by the Family Part because of its
"special jurisdiction and expertise in family matters . . . ." Cesare, 154 N.J. at
413.
It is well established that when considering a domestic violence
complaint, the trial court must undertake a two-prong analysis. Silver v. Silver,
387 N.J. Super. 112, 125 (App. Div. 2006). "First, the judge must determine
whether the plaintiff has proven, by a preponderance of the credible evidence,
that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19[(a)] has
occurred. See N.J.S.A. 2C:25-29[(a)] (stating that 'the standard for proving the
allegations in the complaint shall be by a preponderance of the evidence')." Ibid.
The court must consider all evidence in light of the parties' history of domestic
violence, if any, and whether there is an immediate danger to person or property.
N.J.S.A. 2C:25-29(a)(1) and (2).
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If the plaintiff satisfies the first prong, the court then must determine
whether to enter a restraining order. Silver, 387 N.J. Super. at 126. The
commission of one of the enumerated predicate acts of domestic violence does
not require the entry of an FRO. Id. at 126-27 (citing Kamen v. Egan, 322 N.J.
Super. 222, 227 (App. Div. 1999)). "[T]he guiding standard is whether a
restraining order is necessary, upon an evaluation of the factors set forth in
N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate
danger or to prevent further abuse. Id. at 127.
III.
Here, the trial court found that defendant committed predicate acts of
domestic violence. The PDVA provides that harassment under N.J.S.A. 2C:33-
4 is a predicate act of domestic violence. N.J.S.A. 2C:25-19(13). A person
commits the offense of harassment if, with the purpose to harass another, he or
she:
[(a.)] Makes, 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;
....
[(c.)] Engages in any other course of alarming conduct
or of repeatedly committed acts with purpose to alarm
or seriously annoy such other person.
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[N.J.S.A. 2C:33-4.]
To show a violation of N.J.S.A. 2C:33-4 (a), a single communication will
suffice. J.D. v. M.D.F., 207 N.J. 458, 477 (2011). The complainant must
establish however, that "defendant's purpose in making [the communication], or
causing it to be made by another, was to harass and . . . it was made in a manner
likely to cause annoyance or alarm to the intended recipient." Ibid.
Moreover, a violation of N.J.S.A. 2C:33-4(c) requires evidence of a
course of conduct that consists of repeated acts committed with the intent to
"alarm or seriously annoy" the victim. Id. at 478 (quoting N.J.S.A. 2C:33-4(c)).
The "serious" annoyance or alarm requirement is satisfied by an intent "to
weary, worry, trouble, or offend" the victim. State v. Hoffman, 149 N.J. 564,
581 (1997).
The PDVA further provides that "[c]ontempt of a domestic violence order
pursuant to [N.J.S.A. 29-9(b)] that constitutes a crime or disorderly persons
offense" is a predicate act of domestic violence. N.J.S.A. 2C:25-19(a)(17).
N.J.S.A. 2C:29-9(b) states that "a person is guilty of a crime of the fourth degree
if that person purposely or knowingly violates any provision in an order entered
under the provisions of the [PDVA]."
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Here, the trial judge found that defendant committed predicate acts of
harassment by phoning plaintiff on June 1, 2018; causing another person to send
plaintiff a text message on June 4, 2018; and having another person call plaintiff
on August 22, 2018 and leave a voice mail message. The judge rejected
defendant's assertion that the June 1, 2018 phone call was a mistake, and her
claim that she had no involvement with the June 4, 2018 text message or August
22, 2018 voice mail.
The judge found that the aforementioned acts had "no other purpose but
to alarm and harass." The judge also found that these contacts constituted
predicate acts of domestic violence under N.J.S.A. 2C:25-19(a)(17) because
they were acts of contempt of the TRO under N.J.S.A. 2C:29-9(b). There is
sufficient credible evidence in the record to support these findings.
IV.
On appeal, defendant argues that the judge erred by granting plaintiff's
application for an FRO. Defendant contends the record does not support a
finding that an FRO was needed to protect plaintiff from immediate harm or
protect him from further acts of domestic violence. In response, plaintiff argues
that defendant's "brazen disregard" for the TRO shows that an FRO is needed to
protect him from further acts of harassment.
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As noted, under Silver, when determining whether an FRO should be
issued, the trial court must consider the factors enumerated in N.J.S.A. 2C:25-
29(a) and determine whether an FRO is needed "to protect the victim from an
immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127.
Therefore, the court's review shall include the following factors:
(1) The previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;
(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the plaintiff and
defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the
protection of the victim's safety; and
(6) The existence of a verifiable order of protection
from another jurisdiction.
[N.J.S.A. 2C:25-29(a).]
Performing this second inquiry "serves to ensure that the protective
purposes of the [PDVA] are served, while limiting the possibility that the
[PDVA], or the courts, will become inappropriate weapons in domestic
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warfare." J.D., 207 N.J. at 488. When a request for an FRO is made, "the court
shall grant any relief necessary to prevent further abuse." N.J.S.A. 2C:25-29(b).
Here, the judge stated that based on the testimony presented at the hearing,
it did not appear plaintiff was a person who needed a restraining order. The
judge noted that on July 5, 2018, after the parties left the courthouse, plaintiff
pursued defendant and her supervisor. According to the judge, plaintiff's actions
were "stupid" and not the acts of a person in fear.
The judge found that there was no need for an FRO based on plaintiff's
testimony. The judge found, however, that an FRO should be entered against
defendant because of her conduct, which "has to be stopped." The judge found
that he had no fear for the safety of plaintiff's son, but "[t]he contact has to stop."
We are convinced that the trial court's decision to grant the FRO was a
mistaken exercise of discretion. We recognize that defendant engaged in acts
of harassment by communicating with plaintiff and his wife and that defendant
did so after the TRO was entered. However, as the trial court found, any threats
communicated by defendant did not place plaintiff in fear, and the judge
expressly found that he had no concern for the safety of plaintiff's son.
The record shows that defendant last communicated with plaintiff on
August 22, 2018, which was before the hearing continued on September 13,
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2018. The evidence failed to show that plaintiff was in immediate danger of any
physical harm or further communications by defendant. We therefore conclude
that plaintiff did not present sufficient evidence to warrant the issuance of an
FRO.
Reversed.
