T.N.Q. VS. P.L., JR. (FV-10-0123-21, HUNTERDON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-0333-20
T.N.Q.,
Plaintiff-Respondent,
v.
P.L., JR.,
Defendant-Appellant.
_______________________
Submitted April 28, 2021 – Decided May 27, 2021
Before Judges Accurso and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon County,
Docket No. FV-10-0123-21.
Anthony J. Vecchio, attorney for appellant.
Law Offices of Jonathan F. Marshall, attorneys for
respondent (Jonathan F. Marshall, of counsel; Abraham
N. Basch, on the brief).
PER CURIAM
Defendant P.L., Jr.1 appeals from an August 27, 2020 final restraining
order (FRO) entered in favor of plaintiff T.N.Q., pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
The parties had an "on again, off again" relationship for approximately six
years. They started dating in 2012 and lived together for about five months
between 2016 and 2017. Plaintiff ended the relationship in 2017 because it "was
a very toxic volatile relationship." She explained "[t]here was a lot of emotional,
mental, verbal and physical abuse," and the physical abuse involved defendant
pushing her into a wall on "at least two" occasions and locking her in a guest
room on "[a]t least three" occasions for a period lasting "[a]nywhere from twelve
to eighteen hours or so."
According to plaintiff, from the time she broke off the relationship until
she obtained a temporary restraining order (TRO) in August 2020, defendant
texted "almost daily," telephoned, wrote Facebook messages to her, and sent
items to her home address. He also appeared at her residence uninvited and
constantly told her how much he loved her and wanted another chance to be
together.
1
We use initials to protect the privacy of the individuals involved in this appeal.
R. 1:38-3(d)(9).
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2
By February 2019, plaintiff texted defendant to say their relationship was
over and if he showed up again at her home or continued texting or otherwise
contacting her, the "police will 100 percent be involved. Stop. Thank you."
Defendant did not stop. As late as July and August 2020, he communicated with
plaintiff to let her know he still wished to reconcile with her. At the FRO
hearing, plaintiff testified she wanted a restraining order because she feared for
her safety, noting defendant possessed a firearm and had threatened her and her
family.
Defendant testified that after plaintiff moved out of the parties' residence
in 2017, the parties reconciled three times and that they were intimate during the
periods of reconciliation. He stated that while they "were in separate quarters,"
they "were . . . trying to progress as a relationship." Defendant admitted the
parties had an "on again-off again" relationship and in July and August 2020, he
tried "to reconcile just another time, to go back on." He denied trying to harass,
annoy or threaten plaintiff and specifically denied pushing her against a wall or
locking her in a room for extended hours. However, he acknowledged he "failed
to understand that [his] actions . . . made [plaintiff] feel uneasy or . . . consisted
of any sort of harassment."
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The judge credited plaintiff's testimony and concluded defendant "did
engage in a pattern of controlling behavior," and there was "absolutely no doubt
in [the court's] mind that . . . defendant couldn't take no for an answer" when he
attempted to reunite with plaintiff. Additionally, the judge found that although
plaintiff reconciled with defendant after the parties physically separated, there
were "periods of time during which they were not in . . . a reconciliation , that
the defendant simply determined to control the situation." The judge concluded
defendant was attempting to "control the plaintiff's behavior in order to conform
to his objective, which was to have a relationship with the plaintiff." Further,
the judge noted defendant's own testimony demonstrated that by 2019, the
parties "had no relationship, yet the defendant continue[d] to harangue or . . .
harass the plaintiff to get her to alter her behavior to conform with his
expectations." Accordingly, the judge stated he had "no confidence . . . plaintiff
can rely upon the defendant's present statement of intent to leave plaintiff alone."
Finding the "best predictor of future performance is past performance," the court
concluded plaintiff established "by a preponderance of evidence, and beyond,
. . . both the predicate act and a need for a final restraining order." The judge
added that plaintiff asserted a right to be left alone which was "not respected by
this defendant."
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On appeal, defendant argues the trial court erred in granting the FRO
because plaintiff failed to establish the predicate act of harassment and did not
prove an FRO was necessary for her protection. We disagree.
When determining whether to grant an FRO pursuant to the PDVA, the
judge has a "two-fold" task. 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." Ibid. The judge must
construe any such acts in light of the parties' history to better "understand the
totality of the circumstances of the relationship and to fully evaluate the
reasonableness of the victim's continued fear of the perpetrator." Kanaszka v.
Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); see N.J.S.A. 2C:25-29(a)(1).
Second, if the court finds a plaintiff has established, by a preponderance of
evidence, that a defendant has committed one of the enumerated predicate acts
under the PDVA, the issuance of an FRO does not inexorably follow such a
finding. Instead, the judge must consider the need for restraints by engaging in
a separate inquiry, which involves an evaluation of the factors set forth in
N.J.S.A. 2C:25-29(a)(1) to -29(a)(6). Silver, 387 N.J. Super. at 126-27.
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The purpose of the PDVA is to "assure the victims of domestic violence
the maximum protection from abuse the law can provide." G.M. v. C.V., 453
N.J. Super. 1, 12 (App. Div. 2018) (quoting State v. Brown, 394 N.J. Super. 492,
504 (App. Div. 2007)); see also N.J.S.A. 2C:25-18. Consequently, "[o]ur law is
particularly solicitous of victims of domestic violence," J.D. v. M.D.F., 207 N.J.
458, 473 (2011) (alteration in original) (quoting State v. Hoffman, 149 N.J. 564,
584 (1997)), and courts will "liberally construe[] [the PDVA] to achieve its
salutary purposes," Cesare v. Cesare, 154 N.J. 394, 400 (1998).
Here, plaintiff alleged defendant committed the predicate acts of
harassment. A person is guilty of harassment when, "with 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;
b. Subjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or
of repeatedly committed acts with purpose to alarm or
seriously annoy such other person.
[N.J.S.A. 2C:33-4(a)-(c).]
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Harassment requires that a defendant act with the purpose of harassing the
victim. J.D., 207 N.J. at 486. A judge may use "[c]ommon sense and
experience" when determining a defendant's intent. Hoffman, 149 N.J. at 577.
The mere assertion that conduct is harassing is not sufficient. J.D., 207 N.J. at
484. Further, a "victim's subjective reaction alone will not suffice; there must
be evidence of the improper purpose." Id. at 487. "[T]he decision about whether
a particular series of events rises to the level of harassment or not is fact -
sensitive." Id. at 484.
Our review of a trial judge's factual findings is limited. Cesare, 154 N.J.
at 411. "The general rule is that findings by the trial court are binding on appeal
when supported by adequate, substantial, credible evidence." Id. at 411-
12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484
(1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and
expertise in family matters, [we] should accord deference to family court fact -
finding." Id. at 413. Such deference is particularly proper "when the evidence
is largely testimonial and involves questions of credibility." Id. at
412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). On
the other hand, we will review questions of law determined by the trial court de
novo. Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016).
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Based on the record before us, we are convinced the evidence amply
supports the trial court's finding that plaintiff established "both the predicate act
and a need for a final restraining order" based on defendant's harassment of
plaintiff. Indeed, the record reflects that long after the parties separated and
experienced brief periods of reconciliation, defendant used a variety of methods
to contact plaintiff, despite her repeated entreaties that he stop. These
communications invaded her privacy and caused her annoyance, if not alarm,
contrary to subsection (a) of N.J.S.A. 2C:33-4. As we have noted, "[a]nnoyance
means to disturb, irritate, or bother." J.D., 207 N.J. at 477 (alteration in original)
(quoting Hoffman, 149 N.J. at 580).
Further, the judge's determination that an FRO was needed to protect
plaintiff finds support in the record. As the judge noted, plaintiff asserted her
right to be left alone by defendant, yet defendant demonstrated time and again
he would not respect her wish. The judge properly considered that defendant
harassed plaintiff over a significant period of time, and his harassment continued
well beyond any timeframe when the parties had reconciled. Indeed, the judge
specifically found that after September 2019, defendant engaged in a "pattern of
controlling behavior," "couldn't take no for an answer," and attempted to
"control the plaintiff's behavior in order to conform to his objective, which was
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to have a relationship with the plaintiff." Accordingly, the judge stated he had
"no confidence" he or plaintiff could "rely upon the defendant's present
statement of intent to leave plaintiff alone."
Given our deferential standard of review, as well as our review of the
testimony offered by the parties, we perceive no basis to second-guess the
judge's factual findings. Accordingly, his conclusion that plaintiff established
the need for an FRO as a matter of law is unassailable.
To the extent we have not addressed defendant's remaining arguments, we
are satisfied they are without sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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