C.O., N/K/A C.K. VS. T.O. (FV-09-1472-15, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-5570-15T2
C.O. n/k/a C.K.,
Plaintiff-Respondent,
v.
T.O.,
Defendant-Appellant.
________________________________
Submitted September 26, 2017 – Decided October 31, 2017
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FV-09-1472-15.
Clara S. Licata, attorney for appellant.
C.K., respondent pro se.
PER CURIAM
Defendant appeals from a July 11, 2016 Amended Final
Restraining Order entered pursuant to the Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The evidence
supported the judge's finding that a final restraining order (FRO)
was necessary to protect the victim from further abuse; we
therefore affirm.
We previously vacated the FRO entered in this matter on
February 26, 2015. C.O. v. T.O., No. A-3510-14 (App. Div. Mar.
24, 2016).1 We did not disturb the judge's finding that defendant
committed the predicate act of harassment, but remanded the case
for a re-hearing because "the judge made no finding that the entry
of a [final] restraining order was necessary to protect [the]
plaintiff." Id. at 4-5.
After hearing testimony on remand, the judge briefly reviewed
the messages sent by defendant to plaintiff deemed to constitute
harassment, and found the testimony of the divorcing parties
revealed a very disharmonious relationship
between the two of them that was escalated by
[defendant's] texts and messages that [the
judge] found to constitute harassment, and at
that time [when the divorce complaint was
filed in December 2014] given what was clearly
going to be [a] very acrimonious divorce[,] a
final restraining order at that time was
necessary to prevent further escalation of
that behavior and further harassment of
[plaintiff] by [defendant].
The judge also found that evidence of defendant's contempt
conviction in March 2016 for violation of the restraining order
1
The facts pertinent to the acts of defendant's harassment are
set forth in our previous opinion and are not repeated here.
2 A-5570-15T2
was a "factor" that "support[ed] the continuance of the restraining
order if what happened after the original hearing is relevant."
On appeal, defendant argues the judge erred because the "bare
finding" that the restraining order was necessary because of the
parties' "acrimonious divorce action . . . [was] not supported by
the record evidence that existed at the time of the FRO and which
was considered again during the [remand] hearing." He contends
plaintiff's testimony - that she feared defendant - was a
"subjective, self-interested declaration of fear," belied by the
texts and messages she sent to him, and by plaintiff's profanity-
laced attack on defendant's girlfriend.
Our review of the trial court's conclusions is limited. We
are bound by the court's factual findings if they are "supported
by adequate, substantial, credible evidence." Cesare v. Cesare,
154 N.J. 394, 411-12 (1998). We defer to the trial judge's
assessment of witnesses' credibility because of the perspective
the judge gains from seeing and hearing testimony.2 Id. at 412.
As we held on the first appeal, the judge was not only
required to find that defendant committed a predicate act, N.J.S.A.
2C:25-19(a), but also that an FRO was "necessary . . . to protect
2
We deem defendant's argument that the judge improperly asked
leading questions of plaintiff during the re-hearing to be without
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
3 A-5570-15T2
the victim from an immediate danger or to prevent further abuse."
Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). Only
the second prong is at issue here.
The judge did not base his conclusion that the FRO was
necessary on plaintiff's fear. The judge found the predicate act
of harassment was based on a number of messages from defendant to
plaintiff. He found the restraining order was required to protect
plaintiff from "further escalation of [defendant's] behavior and
further harassment." He determined that defendant's harassing
communication worsened the parties' already discordant
relationship. In his judgment, the harassment would have escalated
if the FRO was not issued; the order was necessary to protect
plaintiff from further harassment. In essence, he ordered the FRO
so plaintiff would be left alone, an entitlement found to be a
"basic protection" of the PDVA. State v. Hoffman, 149 N.J. 564,
584 (1997). We conclude the evidence supported his findings.
Defendant also argues the judge erred by utilizing
defendant's contempt conviction to support his finding regarding
the second prong because it occurred after the initial FRO hearing,
and violated defendant's due process rights because it was not
initially alleged in the complaint. The judge found defendant
"was found guilty of a violation of the restraining order and that
factor, as well, would support the continuance of the restraining
4 A-5570-15T2
order." (emphasis added). As noted by the judge, the contempt
conviction was not the only factor upon which he found the second
prong was met. Since the issuance of the FRO was justified without
consideration of the contempt conviction, we need not address this
portion of defendant's argument.
Affirmed.
5 A-5570-15T2