Get Divorced and move on plus Domestic Violence cases

Sunday, April 30, 2023

P.A. v. S.A. Restraining Order FRO here for removal of ring camera

Defendant appealed trial court's entry of a final restraining order pursuant to the Prevention of Domestic Violence Act. After her husband's death, plaintiff continued to reside on the first floor of a two-story home that the couple had occupied for the duration of their marriage. Defendant, husband's son and plaintiff's stepson, lived on the second floor of the home with his girlfriend. After the husband's death, plaintiff and defendant became opposing parties in litigation regarding plaintiff's interest in the family home. Defendant unilaterally removed the home's Ring doorbell camera, which streamed video and audio directly to plaintiff's phone.

Plaintiff, then 72 years old, obtained a temporary restraining order. Upon hearing regarding entry of a final restraining order, plaintiff testified that defendant never replaced the Ring doorbell. Defendant said he removed the doorbell because he had purchased an improved doorbell and intended to replace the old one, but he offered no evidence to substantiate that testimony, and by the time of trial no new device had been installed. Plaintiff testified that the Ring camera had provided her with a sense of safety. Trial court granted the FRO. Defendant appealed. Court affirmed. Trial court correctly concluded that defendant committed the PDVA predicate act of harassment by removing the Ring camera without plaintiff's permission, not reinstalling it when she requested, and failing to replace it with a new device.

Appeal court held Trial court did not err in deeming defendant's testimony about removing the device not credible. The issue was not solely removal of the device, but rather the failure to install another and connect it to plaintiff's phone, thereby denying her the "safety net" that she valued during a time when the parties were at odds due to the ongoing will contest. Trial court's credibility and factual findings were supported by evidence of record. source https://www.law.com/njlawjournal/almID/1680814810NJA267521/?download=a2675-21_040623.pdf

P .A.,
Plaintiff-Respondent,

v. S.A.,

Defendant-Appellant. _______________________

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2675-21

Submitted February 28, 2023 – Decided April 6, 2023

Before Judges Sumners and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1747-22.

PER CURIAM

This appeal arises from entry of a final restraining order (FRO). Defendant challenges the trial court rulings and argues it committed reversible

error by disregarding on-going civil litigation between the parties, incorrectly considering certain testimony while disregarding other testimony, and asserts there was no prior history of domestic violence between the parties warranting entry of an FRO. We discern no error by the trial court and affirm.

Plaintiff was seventy-two years old on February 27, 2022, the date of the incident. She had been married to defendant's father for twenty-nine years until her husband's death five months earlier. For the duration of their marriage, the two resided at a two-floor "Cape Cod" style home decedent owned in Fair Lawn. In approximately March 2020, plaintiff and her husband installed an interactive doorbell with audio and visual intercommunication capacities (Ring camera) which streamed video directly to plaintiff's phone. Although plaintiff contended her husband or a family friend installed the doorbell, at trial defendant maintained he installed the device.

In September 2020, approximately one year before his father's death, defendant, and his girlfriend1 moved into second floor of the Fair Lawn home. When defendant's father passed away in September 2021, defendant and his girlfriend continued occupying the second floor, while plaintiff, his stepmother, continued occupying the ground floor. Following decedent's death, plaintiff and

1 Defendant's girlfriend was not a party to the proceedings, nor did she testify.

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defendant became opposing parties in litigation involving a will contest challenging the type and duration of estate decedent left to plaintiff regarding the Fair Lawn home. The litigation was ongoing at the time of the FRO hearing although it is not clear from the record whether that litigation has since resolved.

On February 27, 2022, defendant unilaterally removed the Ring camera. The same day, plaintiff filed a complaint and obtained a temporary restraining order. At the FRO hearing, plaintiff testified the Ring camera allowed her to virtually monitor who came and went from the house and provided her with a sense of safety. She testified that on the day of the incident, defendant removed the Ring camera without asking her, leaving behind only the mounting plate where the device used to be, and defendant never replaced it.

Defendant testified he removed the Ring camera because he had purchased a new and improved doorbell the day prior and was planning on replacing the old one in anticipation of his plans to travel out-of-state. Defendant admitted he never consulted with plaintiff or obtained her permission to remove the Ring camera, nor did he present a receipt at the FRO hearing to substantiate his testimony regarding his intent to replace the device. He also did not explain why he did not immediately replace the old device with the new one if he

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purchased it prior to removing the old device. At trial, the new device had still not been installed.

The trial court made findings of fact, credibility, and law. Although the trial court found both parties had an interest in the outcome of the FRO hearing because of the will contest, it found only plaintiff was credible with respect to the reasonableness of her testimony. The court found defendant committed the predicate act of harassment pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-19(a)(13) and N.J.S.A. 2C:33-4. The court further found an FRO was necessary for plaintiff's protection pursuant to Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006).

Our review of an FRO is limited. See C.C. v. J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020). To find whether the entry of an FRO is appropriate, the trial court 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.'" D.M.R. v. M.K.G., 467 N.J. Super. 308, 322 (App. Div. 2021) (quoting Silver, 387 N.J. Super. at 125). The PDVA defines "domestic violence" by listing nineteen predicate acts and according to each act the definition it is proscribed in the criminal code. N.J.S.A. 2C:25- 19(a).

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In matters involving domestic violence, the findings of a trial court "are binding on appeal when supported by adequate, substantial, credible evidence." T.M.S. v. W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "We accord substantial deference to Family Part judges, who routinely hear domestic violence cases and are 'specially trained to detect the difference between domestic violence and more ordinary differences . . . . '" C.C. v. J.A.H., 463 N.J. Super. at 428 (quoting J.D. v. M.D.F., 207 N.J. 458, 482 (2011)). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of 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 court is better positioned to evaluate witness credibility, qualifications, conclusions on credibility are given great weight unless clearly lacking in reasonable support. Ibid.

However, questions of law "'are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles.'" R.G. v. R.G., 449 N.J. Super. 208, 218 (App. Div. 2017) (quoting N.T.B. v. D.D.B., 442 N.J. Super. 205, 215 (App. Div. 2015)). Findings and conclusions of law are, therefore, reviewed de novo. Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016).

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The trial court correctly determined defendant committed the predicate act of harassment. Pursuant to N.J.S.A. 2C:25-19(a)(13) and N.J.S.A. 2C:33-4(c) the court found defendant removed the Ring camera without plaintiff's permission, did not reinstall it when she requested, and did not replace it with a newer device. The court found defendant's testimony regarding his reason for removing the device not credible.

A finding that the perpetrator acted with intent "may be inferred from the evidence presented" and "[c]ommon sense and experience may inform that determination." State v. Hoffman, 149 N.J. 564, 577 (1997). It may also be inferred from the parties' history. J.D., 207 N.J. at 483, 487.

In finding defendant intended to harass plaintiff, the trial court noted the ongoing will contest between the parties, and the "safety net" provided by the Ring camera to seventy-two-year-old plaintiff, who lived on the first floor of the shared residence. The court stated, "taking down the item in and of itself is not harassment," but observed failing "to put another one up immediately and to connect the plaintiff's phone to it, when this is something she's been using for three years" was done with the intention to alarm or seriously annoy plaintiff.

Defendant relies solely on N.B. v. T.B., 297 N.J. Super. 35 (App. Div. 1997) for the proposition the trial court committed reversible error entering an

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FRO because there was on-going litigation involving the rightful owner of the Fair Lawn home following decedent's death. This reliance is misplaced. In N.B., the reviewing court was constrained to remand where the trial court failed to make findings about the defendant's intent to harass by engaging in a course of alarming conduct. 297 N.J. Super. at 41. The court held "the absence of [those] findings" precluded a finding of a predicate act of harassment. Ibid. The trial court here made the very determinations lacking in N.B., rendering N.B. inapposite and limiting our review.

Moreover, an FRO granting exclusive temporary physical possession to real property is not legally dispositive or even applicable to a legal dispute regarding title of real property. See J&M Land Co. v. First Union Nat'l Bank ex. rel. Meyer, 166 N.J. 493, 506 (2001). The argument that the Family Part predetermined the will contest by entering the FRO which granted exclusive temporary physical possession of the residence to plaintiff misstates the law as an FRO is not determinative of title to real property. See generally R. 5:1; see also N.J.S.A. 3B:1-1 to :31-84 (estate administration); N.J.S.A. 2A:35-1 to -3 (actions to determine rights in real property); N.J.S.A. 46:3-1 to -33 (estates and interests in real property); N.J.S.A. 2A:56-1 to -14 (partition statutes).

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After finding a predicate act pursuant to N.J.S.A. 2C:25-19(a), "the judge must determine whether a restraining order is necessary to protect the plaintiff from future danger or threats of violence." D.M.R., 467 N.J. Super. at 322. "Although this second determination –– whether a domestic violence restraining order should be issued –– is most often perfunctory and self-evident, the 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." Silver, 387 N.J. Super. at 127.

N.J.S.A. 2C:25-29 provides the court shall consider but not be limited to consideration of six factors, including the previous history of domestic violence between the parties. "[W]hether the victim fears the defendant" is an additional factor the trial court may consider. G.M. v. C.V., 453 N.J. Super. 1, 13 (App. Div. 2018).

The trial court found there was no prior history of domestic violence between the parties. However, noting the "Cape Cod" style of the home and the living arrangement of the parties whereby the parties were forced to have frequent interactions in close living quarters, the trial court reasoned there was animosity between the parties as a result of the will contest. The trial court

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found the elderly plaintiff relied on the Ring camera for security, and defendant's act of removing it was an act of abuse and control because of the parties' domestic relationship. Defendant argues his actions were not egregious, and the trial court improperly considered plaintiff's testimony regarding prior instances where she was fearful of the defendant.

As noted, prior history of domestic violence between the parties is a factor the court must consider but not necessary for issuance of an FRO. Where a predicate act has been found to have occurred, the analysis proceeds to whether an FRO is necessary "to protect the victim from an immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127. Regarding plaintiff's testimony about her fear of defendant, the court noted it was limiting its consideration of such testimony for state of mind purposes only. N.J.R.E. 803(c)(3).

Defendant's explanations for his behavior were not found to be credible and are not sufficient grounds for reversal given our deferential standard of review. We are bound by the factual findings made by the trial court where they are supported by record evidence. The trial court had the opportunity to elicit testimony and distinguish between objective harassment and mere domestic contretemps and found only plaintiff was credible in her testimony. J.D., 207

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N.J. at 482. We have no basis to second guess the trial court's credibility and factual findings. Those findings were supported by the evidence in the record, and we affirm.

Affirmed.

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FRO granted where married guy kept contacting ex girlfriend S.J.S. v. R.J.D.

FRO granted where married guy kept contacting ex girlfriend

Defendant appealed trial court's entry of a final restraining order pursuant to the Prevention of Domestic Violence Act. Plaintiff ended a long-term dating relationship with defendant after learning that defendant was married. Defendant began a campaign of attempting to contact plaintiff, including sending her thousands of text messages from forty-nine different phone numbers. Defendant also followed plaintiff when she was in her car, blocked her car in the parking lot at her workplace, threatened to post provocative photos of her online if she did not communicate with him, and telephoned plaintiff at her personal and work phones, filling up her voicemail. Defendant denied some of the alleged conduct and faulted plaintiff for not responding to his messages.

Trial court found plaintiff had proven the predicate act of harassment and had established the necessity of an FRO. Defendant appealed. Court affirmed. Plaintiff's evidence demonstrated that she never responded to defendant's efforts to contact her after the final break up, which countered defendant's assertion that they were simply repeating an old pattern in which she always got back together with him.

Defendant's messages threatening to continue contacting plaintiff repeatedly and stressing her until he got what he wanted supported trial court's finding of defendant's requisite intent of harassment under the PDVA. Defendant argued the FRO was unnecessary because it was merely meant to make him stop bothering plaintiff, but court admonished that the sending of thousands of unwanted texts from forty-nine different numbers was harassment under the PDVA, not mere "bothering," as trial court correctly found. Plaintiff's testimony, the substance and relentless nature of defendant's communications, and the undisputed evidence that it took a temporary restraining order to make defendant stop his harassment, all supported trial court's finding that an FRO was necessary to protect plaintiff from immediate harm or further acts of abuse. source https://www.law.com/njlawjournal/almID/1680814695NJA129121/?download=a1291-21_040623.pdf

S.J.S., Plaintiff-Respondent,

v. R.J.D.,

Defendant-Appellant. _______________________

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-1291-21

Submitted December 13, 2022 – Decided April 6, 2023

Before Judges Gilson and Gummer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-0823-22.

Defendant appeals from a final restraining order (FRO), which was entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A.

2C:25-17 to -35.1 Defendant argues the trial judge erred in finding plaintiff had proven the predicate act of harassment and that the FRO was needed to ensure plaintiff's future protection. Because the judge's findings were supported by substantial credible evidence, we affirm.

I.
The parties had an "on and off" dating relationship for twenty-two years.

Twelve years into the relationship, plaintiff found out defendant was married. In 2018, plaintiff told defendant she was "done," and if he wanted to continue their relationship, he had to divorce his wife. The parties' physical relationship ended then, but they continued to communicate. Plaintiff testified that in June 2021, she again had told defendant she was "done" and stopped communicating with him. According to plaintiff, defendant "doesn't take no for an answer." Defendant continued to attempt to contact plaintiff, calling her and sending her "thousands of text messages . . . ." Plaintiff did not respond to any of them.

On October 7, 2021, plaintiff filed a domestic-violence complaint against defendant, alleging the predicate acts of harassment, lewdness, stalking, and cyber harassment. In the complaint, plaintiff asserted that since their June break-up, defendant had sent her "over 2,000 messages from various cell phone

1 We use initials in accordance with Rule 1:38-3(d)(10). 2

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numbers after she blocks one" and on that day had "sent from his phone an image of a male friend's car in her driveway indicating that he was outside her home." She claimed defendant had "threatened to post provocative/nude photos of . . . plaintiff if she d[id] not respond to him." A judge granted plaintiff a temporary restraining order.

A different judge conducted a hearing regarding plaintiff's FRO application. Plaintiff represented herself; defendant was represented by counsel. Plaintiff testified and called her daughter as a witness. Defendant also testified.

According to plaintiff, she was at home with a friend on October 7 when her "cell phone started going off rapidly with messages [from defendant] saying, '[p]ick up the phone. You need to pick up the phone. You need to be civil. You need to talk to me.'" Defendant called her and left a message, saying "[y]ou need to answer the phone if you know what's good for you . . . ." Plaintiff did not answer. Defendant sent a photograph of a car that was in her driveway, assuming she was dating someone. He then sent her about a dozen text messages and threatened to send her more the next day. Plaintiff also testified that since June 2021, defendant had sent her approximately 2,500 text messages using forty-nine different telephone numbers. In addition to texting her, defendant also called her personal and work phones. Plaintiff testified defendant had told

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her he would call and text her "from a new number every day." She testified he had filled up her voicemail inbox multiple times. According to plaintiff, defendant "rapid fire" texted her nude photographs of her, telling her "I can do this all night and I have more." Defendant texted her that he was "going to continue on pushing [her] buttons until [he] g[o]t what [he] want[ed]" and threatened he would "continue on posting [her] pictures where [he wanted] to post them." Plaintiff testified defendant's texts and calls had "upset" and "angered" her and had made her feel "threatened" and "very anxious." Plaintiff believed defendant was acting "purposely," citing texts in which he had told her he knew he was "stressing" her and telling her to call him.

Plaintiff also testified defendant recently had "hacked" into her Wi-Fi and had sent her text messages with eyeball emojis stating, "I see you working from home . . . ." Right after her printer had stopped working, defendant texted her, "I know you're having trouble. I know things are going wrong. Why don't you call me? . . . Why don't you ask me to help you? You know I can help you." Plaintiff testified defendant previously had installed a camera system in her house but had kept the password and "would hack into [it] and see what [she] was doing; who was at [her] home."

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In addition, plaintiff testified defendant had come to her workplace and parked his car in a way that blocked her car. When she asked him how he had found her that day, he told her he knew "everything" and admitted he had been following her.

When asked why she thought she needed an FRO, plaintiff stated: "he has told me that I am his property, he owns me. He has . . . told me [he] has never given up. He had too much invested in this."

Plaintiff's daughter testified that defendant's "phone calls and the text messages do not stop" and from June had been "going on . . . nonstop." She testified that "[i]n an hour visit, we're 200 text messages and [ten to twelve] phone calls in." She was present on October 7, 2021, and confirmed defendant had been "calling and texting [plaintiff] rapidly." She had seen his car parked on her mother's street. She described defendant as being "very scary," "very dangerous," "very sick in the head," and "capable of many things," citing the thousands of text messages he had sent using nearly fifty different phone numbers. She described defendant's "verbal and mental abuse" of plaintiff as being "beyond . . . it is out of control." She also testified she was "scared when [plaintiff] goes to sleep every night" that defendant will have somebody hurt her.

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In his testimony, defendant admitted he had changed his phone number forty-nine times between June and October 2021, but claimed he had done so because "the daughter is very involved in the relationship . . . and blocks [him] from communicating with [plaintiff]." He faulted plaintiff for not responding to his messages, asserting she should have had "a civil conversation" with him to tell him "let's end it for real . . . ." He denied ever threatening to post her nude photographs on the internet, driving past her home, or hacking into her camera. He entered into evidence texts plaintiff had sent him that pre-dated the June 2021 break-up. He did not deny sending plaintiff approximately 2,500 texts between June and October 2021.

At the conclusion of the hearing, the judge placed her decision on the record. She found defendant's testimony not credible, noting the evidence he had presented related to events that took place during the parties' twenty-two year relationship and not after the June 2021 break-up. She found plaintiff's testimony credible and corroborated by her daughter's testimony and even some of defendant's testimony.2 The judge found plaintiff had sent a message to

2 Defendant contends the judge found plaintiff's testimony about the forty-nine changes in defendant's phone number not credible. Defendant misreads the judge's opinion. The judge found not credible defendant's testimony that plaintiff's daughter had somehow caused him to change the numbers. Moreover,

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defendant, "even if it was non-verbal": "She did not respond in months, but he continued to send messages. He continued to reach out. He wanted to communicate with her, but she did not [want] him to communicate at all and did not respond." Despite plaintiff's "very clear" message, defendant sent plaintiff approximately 2,500 text messages and left her voicemail messages in the months following their break-up.

Based on those factual findings, the judge found plaintiff had proven the predicate act of harassment, citing the language of N.J.S.A. 2C:33-4(a). She also held plaintiff had established the necessity of an FRO, finding:

It is clear that although she has not responded to him, [defendant] has not gotten it. He asked how come she didn't call the police sooner.

She gave a response to that by saying she was hoping that he would finally wake up and realize she did not want to be bothered with him.

Well, ultimately, she did call the police; whether she called the police the first day or the 101st day or the 1,001st day, she ultimately did because the communications did not end.

So, the court based on the continuous course of conduct, including what the court does believe is a photograph of a person's car at her house and a question as to whether or not it’s a boyfriend and to give me back

in his testimony defendant conceded he had changed his phone number forty- nine times from June to October 2021 in an effort to reach plaintiff.

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the $15,000 you owe me, the court does believe that that was done by [defendant] and the court does believe that it is a sufficient basis upon which [plaintiff] can get a restraining order.

On the same day, the judge issued the FRO.
On appeal, defendant argues the trial judge erred by failing "to properly

administer" the second prong of Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006), and by failing to find defendant had "purposely committed all elements required for a finding of harassment."3 We disagree and affirm.

II.
The scope of our review is limited in an appeal involving an FRO issued

after a bench trial. C.C. v. J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Gnall v. Gnall, 222 N.J. 414, 428 (2015). We defer to a trial judge's factual findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably

3 Defendant also argues New Jersey's harassment statute, N.J.S.A. 2C:33-4, is unconstitutional. Defendant admittedly did not raise that argument before the trial judge. Accordingly, we decline to consider it on appeal. See Alloco v. Ocean Beach & Bay Club, 456 N.J. Super. 124, 145 (App. Div. 2018) (applying "well-settled" principle that appellate courts will not consider an issue that was not raised before the trial court).

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credible evidence as to offend the interests of justice." Cesare, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)); see also C.C., 463 N.J. Super. at 428. We review de novo a trial judge's legal conclusions. C.C., 463 N.J. Super. at 429.

"We accord substantial deference to Family Part judges, who routinely hear domestic violence cases and are 'specially trained to detect the difference between domestic violence and more ordinary differences that arise between couples.'" Id. at 428 (quoting J.D. v. M.D.F., 207 N.J. 458, 482 (2011)). "[D]eference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting Cesare, 154 N.J. at 412). We defer to a trial judge's credibility determinations "because the trial judge 'hears the case, sees and observes the witnesses, and hears them testify,' affording [the trial judge] 'a better perspective than a reviewing court in evaluating the veracity of a witness.'" Gnall, 222 N.J. at 428 (quoting Cesare, 154 N.J. at 412).

The PDVA protects adults and emancipated minors who have been subjected to domestic violence by "any other person who is a present household member or was at any time a household member." N.J.S.A. 2C:25-19(d); see R.G. v. R.G., 449 N.J. Super. 208, 219-20 (App. Div. 2017) (recognizing the

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definition of "[v]ictim of domestic violence" had the "intent to broaden the application" of the PDVA). The PDVA also protects "any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship." N.J.S.A. 2C:25-19(d).

The entry of an FRO under the PDVA requires the trial judge to make certain findings pursuant to a two-step analysis delineated in Silver, 387 N.J. Super. at 125-27. 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." Id. at 125 (citing N.J.S.A. 2C:25-29(a)). Second, the judge must determine whether a restraining order is necessary to protect the plaintiff from immediate harm or further acts of abuse. Id. at 126-27; see also C.C., 463 N.J. Super. at 429. A previous history of domestic violence between the parties is one of the factors a court considers in determining whether a restraining order is necessary to protect the plaintiff. N.J.S.A. 2C:25-29(a)(1); see also D.M.R. v. M.K.G., 467 N.J. Super. 308, 324- 25 (App. Div. 2021) (explaining that whether a judge should issue a restraining order depends, in part, on the parties' history of domestic violence).

Harassment is one of the statutory predicate acts. See N.J.S.A. 2C:25- 19(a)(13). A person commits harassment "if, with purpose to harass another,"

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he or she: (a) "[m]akes, or causes to be made, one or more communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm . . . ." N.J.S.A. 2C:33-4(a). A judge may use "common sense and experience" to determine a defendant's intent and to infer a purpose to harass from the record evidence. D.M.R., 467 N.J. Super. at 323 (quoting H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003)).

Applying those standards, we are satisfied the issuance of the FRO is supported by substantial credible evidence in the record under both prongs of the Silver test. Defendant argues the trial judge should have found that the parties' behavior after the June 2021 break up was no different than their behavior before that break up: plaintiff would say she was "done," defendant would contact her, plaintiff eventually would respond, and they would get back together. The problem with that argument is that plaintiff's behavior was not the same. The judge found plaintiff's testimony credible, and we defer to that credibility finding. The credible evidence demonstrated that unlike in prior break-ups, plaintiff never responded to defendant's efforts to contact her after the June 2021 break up.

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Defendant faults plaintiff for never responding and for not telling him to stop contacting her. He even faults her for not calling the police sooner. But as the judge found, "it is very clear that there was a message being sent to [defendant] even if it was non-verbal . . . ." Despite that clear message, month after month, defendant kept sending plaintiff messages. Defendant's argument that the record did not support a finding he had knowingly harassed plaintiff is belied by his own texts. By telling plaintiff he would contact her using "a new number every day," he could send her "rapid fire" texts of her nude photographs " all night and I have more," he was "going to continue on pushing [her] buttons until [he] g[o]t what [he] want[ed]," and that he knew he was "stressing" her and that she should call him, defendant demonstrated the requisite purposeful intent to support the judge's finding of harassment under the PDVA.

Defendant relies on L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523 (2011), but the facts of that case are very different from the facts of this case. In L.M.F., the parties were divorced parents, text messaging was their primary means of communication, and the messages at issue were about their child. Id. at 531, 535. The plaintiff complained about three texting incidents involving four, eighteen, and seven texts from the defendant. Id. at 526-27, 529. As we held, "[d]ivorced parents must necessarily communicate from time to time about their

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children" and "[h]ad the communications involved subjects other than legitimate concerns about the children's lives, [the] defendant's persistence might have eventually been viewed as infused with a purpose to harass [the] plaintiff." Id. at 536. The defendant's texts about his child in L.M.F. are vastly different than defendant's conduct in this case. And contrary to defendant's assertion, the use of forty-nine different phone numbers to send an ex-girlfriend thousands of unwanted and unanswered post-break-up messages does not constitute "ordinary domestic contretemps." See Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995) (holding turning off a phone after a fight about finances and the martial home was not harassment but "ordinary domestic contretemps").

Regarding the second prong of Silver, defendant contends the judge "merely" found "the issuance of [an FRO] will make [defendant] stop bothering [plaintiff]." Sending an ex-girlfriend over 2,000 unwanted texts from forty-nine different phone numbers in the months after a break-up isn't mere "bothering"; it's harassment under the PDVA, as the judge correctly held. And "there is no such thing as an act of domestic violence that is not serious." Brennan v. Orban, 145 N.J. 282, 298 (1996).

When asked why she needed an FRO, plaintiff testified defendant had told her she was "his property, he owns [her]," and he "has never given up." That

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testimony, the substance and relentless nature of defendant's communications, and the undisputed evidence that despite the clear message plaintiff was sending, it took a restraining order to stop defendant from continuing his harassment support the judge's finding under the second prong of Silver that an FRO was necessary to protect plaintiff from immediate harm or further acts of abuse.

Affirmed.

A-1291-21

Saturday, April 8, 2023

FRO granted where def followed her and tailgated her when she drove to work, C.H. v. R.J.O.

Defendant appealed the FRO entered against him. The parties had been in a five-year relationship. Plaintiff alleged defendant frequently yelled at her, called her names, grabbed her arm and threatened to break such things as her phone and computer. Plaintiff ended the relationship in May 2021 and defendant cursed and yelled and threatened to post sexually suggestive pictures of plaintiff. She received numerous text messages and 17 missed calls from defendant the next morning and he threatened to show up at her work place if she would not talk to him. He followed her and tailgated her when she drove to work, she called 911, was directed to the police station and obtained a TRO. Defendant stated he only wanted to talk to plaintiff and denied any of the alleged threats. Trial judge found a history of domestic violence and granted the FRO. Court found no basis to disturb trial judge's factual findings or legal conclusions. Trial judge credited plaintiff's testimony over defendant's and record supported his finding of the predicate act of harassment based on defendant's persistent pursuit after plaintiff made numerous requests to be left alone. Court also agreed defendant's actions "[were] indicative of a level of coercion, control that is characteristic of domestic violence." Trial judge's award of counsel fees was not an abuse of discretion.

Thursday, April 6, 2023

J.D. VS. A.M.W.

J.D. VS. A.M.W. (FV-04-0695-22, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) Plaintiff appeals from the order of the Superior Court, Chancery Division, Family Part, Camden County's dismissing her domestic violence complaint against defendant. The Family Part found plaintiff failed to satisfy her burden under the second prong of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). On appeal, plaintiff argued the trial court misapplied the facts to the law regarding Silver's "second inquiry." The court concluded plaintiff satisfied her burden under both prongs of Silver, and also held the Family Part erred when it considered whether plaintiff's current husband and defendant's father could protect her in the future, when the proper focus of a Silver "second inquiry" should be on defendant's likelihood to continue his course of abusive behavior, not whether external factors exist which might thwart defendant's efforts to continue the abuse. The court reversed and remanded to the Family Part for entry of a final restraining order against defendant.