S.G. VS. A.G. (FV-06-0136-21, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-0156-20
S.G.,
Plaintiff-Appellant,
v.
A.G.,
Defendant-Respondent.
__________________________
Submitted May 4, 2021 – Decided June 8, 2021
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Cumberland County, Docket No.
FV-06-0136-21.
Stark & Stark, attorneys for appellant (Jennifer
Weisberg Millner, of counsel and on the briefs; Taylor
W. Brownell, on the briefs).
Adinolfi, Lieberman, Burick, Falkenstein, Roberto &
Molotsky, PA, attorneys for respondent (Drew A.
Molotsky, on the brief).
PER CURIAM
Plaintiff appeals from an order denying her application for a final
restraining order (FRO) under the Prevention of Domestic Violence Act (Act),
N.J.S.A. 2C:25-17 to -35, and dismissing a temporary restraining order (TRO). 1
Plaintiff alleges that defendant, her estranged husband, harassed her by entering
the former marital home in violation of a civil order giving her sole possession
of the home. The trial judge found that defendant had not committed an act of
harassment and plaintiff had not shown that she needed the protection of an
FRO. We affirm because the trial judge's findings are supported by substantial
credible evidence and we discern no error of law.
I.
We take the facts from the record developed at the trial held on September
8, 2020. Both parties testified at trial and were represented by attorneys.
The parties were married in August 1996 and they have three children,
who are now adults. Both parties are veterinarians and, until 2017, they operated
a veterinary hospital together.
In July 2017, defendant assaulted plaintiff and plaintiff obtained a TRO.
Following a trial in May 2018, the family court denied plaintiff's application for
1
We use initials in the caption and refer to the parties as plaintiff and defendant
to protect privacy interests. R. 1:38-3(d)(9).
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an FRO. By that time, plaintiff had commenced a divorce action against
defendant. On May 8, 2018, the same family judge who tried the 2018 FRO
application entered an order in the divorce action allowing plaintiff "to maintain
sole possession" of the marital home and the veterinary business.
Over two years later, on August 9, 2020, defendant came to the former
marital home to help one of his daughters move to Ohio to attend veterinar y
school. Defendant testified that while en route to the home, he developed a
strong need to go to the bathroom. Accordingly, when he arrived at the home,
he approached the front door, called for his daughter and when she did not
answer, entered, and went into the bathroom.
Plaintiff testified that she heard defendant enter the home, became
frightened, and "retreated" to a separate part of the house. The daughter then
went to the bathroom door to ask if defendant was there, and defendant
responded that it was his "f[]ing house" and he could use the bathroom.
Shortly thereafter, defendant exited the home without having any contact
or communication with plaintiff. Later, as planned, defendant drove to Ohio in
a separate car from his daughter.
The same judge who heard the 2018 FRO application and entered the May
8, 2018 civil order held a trial on the 2020 FRO application. After hearing the
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parties' testimony, the trial judge set forth his findings of facts and conclusions
of law on the record. The judge then entered an order denying the FRO
application and dismissing the TRO. On September 17, 2020, the judge issued
a written amplification of his findings and conclusions.
The trial judge found certain facts were not in dispute: (1) defendant had
gone to the home to help move his daughter to Ohio; (2) defendant entered the
home to use the bathroom; (3) while in the home, defendant had no direct contact
or communication with plaintiff; and (4) defendant left the home and drove
away.
The trial judge found credible plaintiff's testimony that she was in fear
while defendant was in the home on August 9, 2020. The trial judge also found
that defendant credibly testified that he had an emergent need to use the
bathroom. Consequently, the trial judge found defendant had no intent to harass
plaintiff when he entered the home and he had not committed any predicate act
that would support an FRO.
Moreover, in his written amplification, the judge found that plaintiff had
failed to show she needed an FRO to protect her from future abuse or harm. In
making that finding, the court determined that defendant had complied with the
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2018 civil order for over two years. The judge also noted that the divorce action
was pending when the 2020 FRO application was made.
II.
On appeal, plaintiff makes four arguments, contending (1) the trial judge
erred in not appropriately considering the parties' history of domestic violence;
(2) defendant committed an act of harassment warranting the entry of an FRO;
(3) plaintiff was entitled to the protection of an FRO; and (4) plaintiff should
have been granted counsel fees and costs.
Our scope of review of the denial of an FRO is limited. Cesare v. Cesare,
154 N.J. 394, 411 (1998). We accord substantial deference to family judges'
findings of fact because of their special expertise in family matters. Id. at 413.
That deference is particularly strong when the evidence is largely testimonial
and rests on a judge's credibility findings. Gnall v. Gnall, 222 N.J. 414, 428
(2015). We will "not disturb the 'factual findings and legal conclusions of the
trial judge unless [we are] convinced that they are so manifestly unsupported by
or inconsistent with the competent, relevant and reasonably credible evide nce
as to offend the interests of justice.'" Cesare, 154 N.J. at 412 (quoting Rova
Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)).
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When determining whether to grant an FRO under the Act, a judge must
undertake a two-part analysis. Silver v. Silver, 387 N.J. Super. 112, 125-27
(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." Id. at 125.
Second, the judge must determine whether a restraining order is necessary to
protect the plaintiff from immediate harm or further abuse. Id. at 127.
Plaintiff alleged that defendant committed the predicate act of harassment.
Under N.J.S.A. 2C:33-4,
a person commits a petty disorderly persons offense [of
harassment] if, with purpose to harass another, he:
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.
"'A finding of a purpose to harass may be inferred from the evidence
presented' and from common sense and experience." H.E.S. v. J.C.S., 175 N.J.
309, 327 (2003) (quoting State v. Hoffman, 149 N.J. 564, 577 (1997)). Our
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Supreme Court has construed "'any other course of alarming conduct' and 'acts
with purpose to alarm or seriously annoy' as repeated communications directed
at a person that reasonably put that person in fear for [her] safety or security or
that intolerably interfere with that person's reasonable expectation of privacy."
State v. Burkert, 231 N.J. 257, 284-85 (2017).
In essence, plaintiff's first two arguments dispute the fact findings made
by the trial judge. Having reviewed the record, we conclude that those findings
were supported by substantial credible evidence. While the judge acknowledged
plaintiff's fear when defendant entered the home, he also found that defendant
did not engage in conduct constituting harassment under N.J.S.A. 2C:33-4.
There is also insufficient evidence in the record demonstrating that defendant
intended to harass plaintiff when he entered the home to use the bathroom.
We also conclude that there was credible evidence supporting the judge's
finding that plaintiff had not demonstrated a need for a restraining order. The
judge reviewed the history between the parties, including the 2018 FRO
application and the civil order entered in May 2018. Since the judge was the
same judge who entered those orders, he was well-positioned to evaluate
whether plaintiff needed an FRO.
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In making the findings concerning the lack of a predicate act and the lack
of a need for an FRO, the judge cited to the controlling law set forth in Silver,
387 N.J. Super. at 125-27. The trial judge then correctly applied that law to the
facts he found.
Given our affirmance of the denial of the FRO, plaintiff was not entitled
to counsel fees or costs. See N.J.S.A. 2C:25-29(b)(4) (authorizing award of
attorney's fees and costs to the victim of domestic violence).
Affirmed.
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